January 28, 2003, Introduced by Rep. Stewart and referred to the Committee on Family and Children Services.
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending the title and section 1104 (MCL 700.1104), section
1104 as amended by 2000 PA 54, and by adding sections 5120, 5121,
5122, and 5123.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
1 TITLE
2 An act to codify, revise, consolidate, and classify aspects
3 of the law relating to wills and intestacy, relating to the
4 administration and distribution of estates of certain
5 individuals, relating to trusts, and relating to the affairs of
6 certain individuals under legal incapacity; to provide for the
7 powers and procedures of the court that has jurisdiction over
8 these matters; to provide for the validity and effect of certain
9 transfers, contracts, and deposits that relate to death; to
1 provide procedures to facilitate enforcement of certain trusts;
2 to make an appropriation; and to repeal acts and parts of acts.
3 Sec. 1104. As used in this act:
4 (a) "Environmental law" means a federal, state, or local law,
5 rule, regulation, or ordinance that relates to the protection of
6 the environment or human health.
7 (b) "Estate" includes the property of the decedent, trust, or
8 other person whose affairs are subject to this act as the
9 property is originally constituted and as it exists throughout
10 administration. Except when used in the term "probate estate",
11 estate includes the right of an estate described in section 7502
12 to proceed against a recipient of a nonprobate transfer on death
13 and against a trust subject to a power of revocation as necessary
14 to enable the estate to discharge claims and family allowances.
15 (c) "Exempt property" means property of a decedent's estate
16 that is described in section 2404.
17 (d) "Family allowance" is the allowance prescribed in section
18 2403.
19 (e) "Fiduciary" includes, but is not limited to, a personal
20 representative, guardian, conservator, trustee, plenary or
21 partial guardian appointed as provided in chapter 6 of the mental
22 health code, 1974 PA 258, MCL 330.1600 to 330.1644, and successor
23 fiduciary.
24 (f) "Financial institution" means an organization authorized
25 to do business under state or federal laws relating to a
26 financial institution and includes, but is not limited to, a
27 bank, trust company, savings bank, building and loan association,
1 savings and loan company or association, and credit union.
2 (g) "Foreign personal representative" means a personal
3 representative appointed by another jurisdiction.
4 (h) "Formal proceedings" means proceedings conducted before a
5 judge with notice to interested persons.
6 (i) "General personal representative" means a personal
7 representative other than a special personal representative.
8 (j) "Governing instrument" means a deed; will; trust;
9 insurance or annuity policy; account with POD designation;
10 security registered in beneficiary form (TOD); pension,
11 profit-sharing, retirement, or similar benefit plan; instrument
12 creating or exercising a power of appointment or a power of
13 attorney; or dispositive, appointive, or nominative instrument of
14 any similar type.
15 (k) "Guardian" means a person who has qualified as a guardian
16 of a minor or a legally incapacitated individual under a parental
17 or spousal nomination or a court appointment and includes a
18 limited guardian as described in sections 5205, 5206, and 5306.
19 Guardian does not include a guardian ad litem.
20 (l) "Guardianship ombudsman" means the individual appointed
21 under, and with the duties as provided by, sections 5120 to 5123.
22 (m) (l) "Hazardous
substance" means a substance defined as
23 hazardous or toxic or otherwise regulated by an environmental
24 law.
25 (n) (m) "Heir"
means, except as controlled by section 2720,
26 a person, including the surviving spouse or the state, that is
27 entitled under the statutes of intestate succession to a
1 decedent's property.
2 (o) (n) "Homestead
allowance" means the allowance
3 prescribed in section 2402.
4 Sec. 5120. (1) The guardianship ombudsman is created in the
5 executive office of the governor. The governor shall appoint the
6 guardianship ombudsman, with the advice and consent of the
7 senate. In choosing the guardianship ombudsman, the governor
8 shall consider at least all of the following qualifications:
9 (a) Stature in the field of guardianships and
10 conservatorships.
11 (b) Legal training, with special emphasis on an understanding
12 of the issues that the guardianship ombudsman must address.
13 (c) Ability as a communicator.
14 (d) Leadership ability.
15 (2) For the fiscal year ending September 30, 2003, there is
16 appropriated to the executive office of the governor, for the
17 establishment and operation of the guardianship ombudsman office,
18 $197,000.00.
19 Sec. 5121. The guardianship ombudsman has all of the
20 following duties:
21 (a) Investigating complaints of alleged wrongdoing by
22 guardians and conservators.
23 (b) Developing educational materials on topics such as the
24 following:
25 (i) Alternatives to guardianship and conservatorship.
26 (ii) The process for becoming a guardian or conservator.
27 (iii) Doing the job of a guardian or conservator in a legal,
1 ethical, proper, and financially efficient manner.
2 (iv) Guardian and conservator training programs.
3 (v) Continuing education programs for the judicial branch
4 regarding guardianships and conservatorships.
5 (c) Providing technical assistance to the court.
6 (d) Advising the legislature on proposed guardianship and
7 conservatorship legislation.
8 (e) Advising the supreme court on court rules relating to
9 guardianships and conservatorships.
10 (f) Exploring development of local guardianship ombudsman and
11 volunteer programs.
12 (g) Researching approaches to guardianships and
13 conservatorships used in other states, including systems that use
14 public guardians.
15 Sec. 5122. The guardianship ombudsman shall hire and train
16 investigators for investigation of complaints of both physical
17 abuse or neglect and financial abuse or neglect. The
18 guardianship ombudsman shall hire an individual with training and
19 experience in the development of educational materials.
20 Sec. 5123. If a guardianship ombudsman's investigation of a
21 complaint reveals evidence that warrants further action beyond an
22 investigation, the guardianship ombudsman shall refer the
23 complaint to the appropriate agency, such as the court, the
24 attorney general, a prosecuting attorney, an entity that receives
25 grievances concerning the judicial branch or attorneys, or
26 another state or local agency.