SENATE BILL NO. 1287 September 16, 1998, Introduced by Senators HART, CHERRY and CONROY and referred to the Committee on Judiciary. A bill to amend 1978 PA 642, entitled "Revised probate code," by amending sections 454 and 501a (MCL 700.454 and 700.501a), section 454 as amended by 1988 PA 398 and section 501a as added by 1994 PA 327. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 454. (1)AnyTHE COURT MAY APPOINT ANY competent 2 personmay be appointedAS guardian of a legally incapacitated 3 person. The court shall not appoint as guardiananyAN agency, 4 public or private,whichTHAT financially benefits from 5 directly providing housing, medical, or social services to the 6 legally incapacitated person. A GUARDIAN SHALL NOT OFFER, GIVE, 7 SOLICIT, OR ACCEPT A KICKBACK TO OR FROM A PUBLIC OFFICIAL OR 8 EMPLOYEE OR ANOTHER INDIVIDUAL OR TO OR FROM A PERSON THAT 9 PROVIDES A PRODUCT OR SERVICE FOR THE GUARDIAN'S WARD. 05667'98 GWH 2 1 (2) In appointing a guardian under this section, the court 2 shall appoint a person, if suitable and willing to serve, desig- 3 nated by theperson who is the subject of the petitionLEGALLY 4 INCAPACITATED PERSON. If a specific designation is not made or a 5 person designated is not suitable or willing to serve, the court 6 may appoint as guardian a person named as attorney in fact 7 through a durable power of attorney. 8 (3) If a person is not designated under subsection (2) or a 9 person designated under subsection (2) is not suitable or willing 10 to serve, the court may appoint as a guardian a person who is 11 related to thesubject of the petitionLEGALLY INCAPACITATED 12 PERSON, in the following order of preference: 13 (a) Thespouse of thelegally incapacitatedperson14 PERSON'S SPOUSE, including a person nominated by will or other 15 writing signed by a deceased spouse. 16 (b) An adult child of the legally incapacitated person. 17 (c) A parent of the legally incapacitated person, including 18 a person nominated by will or other writing signed by a deceased 19 parent. 20 (d) A relative of the legally incapacitated person with whom 21 the LEGALLY INCAPACITATED person has resided for more than 6 22 months before the filing of the petition. 23 (e) A person nominated bytheA person who is caring for 24 the LEGALLY INCAPACITATED person or paying benefits to the 25 LEGALLY INCAPACITATED person. 05667'98 3 1 (4) If none of the persons listed in subsection (3) is 2 suitable or willing to serve, the court may appoint any competent 3 person who is suitable and willing to serve. 4 Sec. 501a. (1) Subject to subsections (2) and (3), the 5 court may appoint or approve as a guardian, limited or temporary 6 guardian, or conservator under this act, or as a plenary or par- 7 tial guardian as those terms are defined in section 600 of the 8 mental health code,Act No. 258 of the Public Acts of 1974,9being section 330.1600 of the Michigan Compiled Laws1974 PA 10 258, MCL 330.1600, a nonprofit corporation incorporated under the 11 nonprofit incorporation act,Act No. 162 of the Public Acts of121982, being sections 450.2101 to 450.3192 of the Michigan13Compiled Laws1982 PA 162, MCL 450.2101 TO 450.3192, which 14 corporation's primary function is to provide fiduciary services 15 in the same manner asotherfiduciaries under this act WHO ARE 16 INDIVIDUALS. This section shall not be construed to make a 17 person that is not a nonprofit corporation described in this sub- 18 section ineligible to be appointed or approved as afiduciary19 CONSERVATOR AS PROVIDED IN SECTION 470. 20 (2) The court shall only appoint a NONPROFIT corporation as 21 authorized under subsection (1) if the court finds on the record 22bothALL of the following: 23 (a) The appointment of the nonprofit corporation is in the 24 ward's or developmentally disabled person's best interests. 25 (b)AnotherA qualified, suitablepersonINDIVIDUAL has 26 not come before the court and expressed a willingness to serve in 27 that fiduciary capacity. 05667'98 4 1 (C) THE NONPROFIT CORPORATION HAS NOT LESS THAN 1 EMPLOYEE 2 ASSIGNED TO THE CARE OF WARDS FOR EACH 25 INDIVIDUALS WHO ARE THE 3 CORPORATION'S WARDS. FOR THE PURPOSE OF THE FINDING UNDER THIS 4 SUBDIVISION, THE COURT SHALL NOT INCLUDE AN EMPLOYEE UNLESS THE 5 EMPLOYEE'S SOLE DUTY IS THE CARE OF WARDS. 6 (D) THE NONPROFIT CORPORATION ESTABLISHES AND MAINTAINS A 7 SCHEDULE OF VISITATION SO THAT AN EMPLOYEE RESPONSIBLE FOR THE 8 WARD'S CARE VISITS THE WARD NOT LESS THAN ONCE EACH CALENDAR 9 MONTH. 10 (3) The court shall not appoint a NONPROFIT corporation as 11 authorized under subsection (1) unless the corporationfiles12 HAS FILED a bond in an amountand with the conditions as deter-13mined by the courtTHAT IS NOT LESS THAN THE TOTAL AMOUNT OF ALL 14 ASSETS FOR WHICH THE NONPROFIT CORPORATION HAS A FIDUCIARY 15 RESPONSIBILITY UNDER ALL OF ITS GUARDIANSHIPS. THE COURT MAY 16 ORDER THE NONPROFIT CORPORATION TO INCLUDE FURTHER CONDITIONS ON 17 THE BOND, AS THE COURT CONSIDERS NECESSARY. 18 (4) A NONPROFIT CORPORATION ELIGIBLE TO BE APPOINTED UNDER 19 THIS SECTION AS A FIDUCIARY SHALL NOT PETITION FOR THE APPOINT- 20 MENT OF A GUARDIAN OR CONSERVATOR FOR AN INDIVIDUAL. 21 (5) The court shall not appoint a NONPROFIT corporation 22 described in subsection (1) as a personal representative or 23 trustee. 24 (6)(4)A NONPROFIT corporation appointed under this sec- 25 tion shall not receive as a result of that appointment a benefit 26 beyond compensation specifically authorized for that type of 27 fiduciary by this act or the mental health code,Act No. 258 of05667'98 5 1the Public Acts of 1974, being sections 330.1001 to 330.2106 of2the Michigan Compiled Laws1974 PA 258, MCL 330.1001 TO 3 330.2106. 05667'98 Final page. GWH