HB-4384, As Passed House, October 29, 2013

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 4384

A bill to amend 1998 PA 386, entitled

"Estates and protected individuals code,"

by amending sections 1103, 5303, 5305, and 5314 (MCL 700.1103,

700.5303, 700.5305, and 700.5314), section 1103 as amended by 2009

PA 46, section 5303 as amended by 2000 PA 468, section 5305 as

amended by 2012 PA 210, and section 5314 as amended by 2012 PA 173.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 1103. As used in this act:

(a) "Agent" includes, but is not limited to, an attorney-in-

fact under a durable or nondurable power of attorney and an

individual authorized to make decisions as a patient advocate

concerning another's health care.

(b) "Application" means a written request to the probate

under part 3 of article III.

the provisions referenced in section 5213, an attorney serving as

the child's legal advocate in the manner defined and described in

section 13a of chapter XIIA of the probate code of 1939, 1939 PA

288, MCL 712A.13a.

(d) "Beneficiary" includes, but is not limited to, the

following:

(i) In relation to a trust, a person that is a trust

beneficiary as defined in section 7103.

(ii) In relation to a charitable trust, a person that is

entitled to enforce the trust.

(iii) In relation to a beneficiary of a beneficiary designation,

a person that is a beneficiary of an insurance or annuity policy,

of an account with POD designation, of a security registered in

beneficiary form (TOD), of a pension, profit-sharing, retirement,

or similar benefit plan, or of another nonprobate transfer at

death.

(iv) In relation to a beneficiary designated in a governing

instrument, a person that is a grantee of a deed, devisee, trust

beneficiary, beneficiary of a beneficiary designation, donee,

appointee, taker in default of a power of appointment, or person in

whose favor a power of attorney or power held in an individual,

fiduciary, or representative capacity is exercised.

(e) "Beneficiary designation" means the naming in a governing

instrument of a beneficiary of an insurance or annuity policy, of

an account with POD designation, of a security registered in

beneficiary form (TOD), of a pension, profit-sharing, retirement,

or similar benefit plan, or of another nonprobate transfer at

death.

(f) "Child" includes, but is not limited to, an individual

entitled to take as a child under this act by intestate succession

from the parent whose relationship is involved. Child does not

include an individual who is only a stepchild, a foster child, or a

grandchild or more remote descendant.

(g) "Claim" includes, but is not limited to, in respect to a

decedent's or protected individual's estate, a liability of the

decedent or protected individual, whether arising in contract,

tort, or otherwise, and a liability of the estate that arises at or

after the decedent's death or after a conservator's appointment,

including funeral and burial expenses and costs and expenses of

administration. Claim does not include an estate or inheritance

tax, or a demand or dispute regarding a decedent's or protected

individual's title to specific property alleged to be included in

the estate.

(h) "Conservator" means a person appointed by a court to

manage a protected individual's estate.

(i) "Cost-of-living adjustment factor" means a fraction, the

numerator of which is the United States consumer price index for

the prior calendar year and the denominator of which is the United

States consumer price index for 1997. As used in this subdivision,

"United States consumer price index" means the annual average of

the United States consumer price index for all urban consumers as

defined and reported by the United States department of labor,

bureau of labor statistics, or its successor agency, and as

certified by the state treasurer.

(j) "Court" means the probate court or, when applicable, the

family division of circuit court.

(k) "Descendant" means, in relation to an individual, all of

his or her descendants of all generations, with the relationship of

parent and child at each generation being determined by the

definitions of child and parent contained in this act.

(l) "Devise" means, when used as a noun, a testamentary

disposition of real or personal property and, when used as a verb,

to dispose of real or personal property by will.

(m) "Devisee" means a person designated in a will to receive a

devise. For the purposes of article II, for a devise to a trustee

of an existing trust or to a trustee under a will, the trustee is a

devisee and a beneficiary is not.

(n) "Disability" means cause for a protective order as

described in section 5401.

(o) "Distributee" means a person that receives a decedent's

property from the decedent's personal representative or trust

property from the trustee other than as a creditor or purchaser. A

trustee of a trust created by will is a distributee only to the

extent that distributed property or an increment of the distributed

property remains in the trustee's hands. A beneficiary of a trust

created by will to whom the trustee distributes property received

from a personal representative is a distributee of the personal

representative. For the purposes of this subdivision, "trustee of a

trust created by will" includes a trustee to whom property is

transferred by will to the extent of the devised property.

(p) "Do-not-resuscitate order" means that term as defined in

section 2 of the Michigan do-not-resuscitate procedure act, 1996 PA

193, MCL 333.1052.

Sec. 5303. (1) An individual in his or her own behalf, or any

person interested in the individual's welfare, may petition for a

finding of incapacity and appointment of a guardian. The petition

shall contain specific facts about the individual's condition and

specific examples of the individual's recent conduct that

demonstrate the need for a guardian's appointment.

(2) Before a petition is filed under this section, the court

shall provide the person intending to file the petition with

written information that sets forth alternatives to appointment of

a full guardian, including, but not limited to, a limited guardian,

conservator, patient advocate designation, do-not-resuscitate

~~declaration,~~ order, or durable power of attorney with or without

limitations on purpose, authority, or time period, and an

explanation of each alternative.

(3) Upon the filing of a petition under subsection (1), the

court shall set a date for hearing on the issue of incapacity.

Unless the allegedly incapacitated individual has legal counsel of

his or her own choice, the court shall appoint a guardian ad litem

to represent the person in the proceeding.

Sec. 5305. (1) The duties of a guardian ad litem appointed for

an individual alleged to be incapacitated include all of the

following:

(a) Personally visiting the individual.

(b) Explaining to the individual the nature, purpose, and

legal effects of a guardian's appointment.

individual's rights in the hearing procedure, including, but not

limited to, ~~the~~ all of the following:

(i) The right to contest the petition. ,

(ii) The right to request limits on the guardian's powers,

including a limitation on the guardian's power to execute a do-not-

resuscitate order on behalf of the ward.

(iii) The right to object to a particular person being appointed

guardian. ,

(iv) The right to be present at the hearing. ,

(v) The right to be represented by legal counsel. ~~, and~~

(vi) The right to have legal counsel appointed for the

individual if he or she is unable to afford legal counsel.

(d) Informing the individual that if a guardian is appointed,

the guardian may have the power to execute a do-not-resuscitate

order on behalf of the individual and, if meaningful communication

is possible, discern if the individual objects to having a do-not-

resuscitate order executed on his or her behalf.

(e) ~~(d)~~ Informing the individual of the name of each person

known to be seeking appointment as guardian.

(f) ~~(e)~~ Asking the individual and the petitioner about the

amount of cash and property readily convertible into cash that is

in the individual's estate.

(g) ~~(f)~~ Making determinations, and informing the court of

those determinations, on all of the following:

(i) Whether there are 1 or more appropriate alternatives to the

appointment of a full guardian or whether 1 or more actions should

be taken in addition to the appointment of a guardian. Before

informing the court of his or her determination under this

subparagraph, the guardian ad litem shall consider the

appropriateness of at least each of the following as alternatives

or additional actions:

(A) Appointment of a limited guardian, including the specific

powers and limitation on those powers the guardian ad litem

believes appropriate.

(B) Appointment of a conservator or another protective order

under part 4 of this article. In the report informing the court of

the determinations under this subdivision, the guardian ad litem

shall include an estimate of the amount of cash and property

readily convertible into cash that is in the individual's estate.

resuscitate ~~declaration,~~ order, or durable power of attorney with

or without limitations on purpose, authority, or duration.

(ii) Whether a disagreement or dispute related to the

guardianship petition might be resolved through court ordered

mediation.

(iii) Whether the individual wishes to be present at the

hearing.

(iv) Whether the individual wishes to contest the petition.

(v) Whether the individual wishes limits placed on the

guardian's powers.

(vi) Whether the individual objects to having a do-not-

resuscitate order executed on his or her behalf.

(vii) (vi) Whether the individual objects to a particular person

being appointed guardian.

(2) The court shall not order compensation of the guardian ad

litem unless the guardian ad litem states on the record or in the

guardian ad litem's written report that he or she has complied with

subsection (1).

(3) If the individual alleged to be incapacitated wishes to

contest the petition, to have limits placed on the guardian's

powers, or to object to a particular person being appointed

guardian and if legal counsel has not been secured, the court shall

appoint legal counsel to represent the individual alleged to be

incapacitated. If the individual alleged to be incapacitated is

indigent, the state shall bear the expense of legal counsel.

(4) If the individual alleged to be incapacitated requests

legal counsel or the guardian ad litem determines it is in the

individual's best interest to have legal counsel, and if legal

counsel has not been secured, the court shall appoint legal

counsel. If the individual alleged to be incapacitated is indigent,

the state shall bear the expense of legal counsel.

(5) If the individual alleged to be incapacitated has legal

counsel appointed under subsection (3) or (4), the appointment of a

guardian ad litem terminates.

Sec. 5314. Whenever meaningful communication is possible, a

legally incapacitated individual's guardian shall consult with the

legally incapacitated individual before making a major decision

affecting the legally incapacitated individual. To the extent a

guardian of a legally incapacitated individual is granted powers by

the court under section 5306, the guardian is responsible for the

ward's care, custody, and control, but is not liable to third

persons by reason of that responsibility for the ward's acts. In

particular and without qualifying the previous sentences, a

guardian has all of the following powers and duties, to the extent

granted by court order:

(a) The custody of the person of the ward and the power to

establish the ward's place of residence within or without this

state. The guardian shall visit the ward within 3 months after the

guardian's appointment and not less than once within 3 months after

each previous visit. The guardian shall notify the court within 14

days of a change in the ward's place of residence or a change in

the guardian's place of residence.

(b) If entitled to custody of the ward, the duty to make

provision for the ward's care, comfort, and maintenance and, when

appropriate, arrange for the ward's training and education. The

guardian shall secure services to restore the ward to the best

possible state of mental and physical well-being so that the ward

can return to self-management at the earliest possible time.

Without regard to custodial rights of the ward's person, the

guardian shall take reasonable care of the ward's clothing,

furniture, vehicles, and other personal effects and commence a

protective proceeding if the ward's other property needs

protection. If a guardian commences a protective proceeding because

the guardian believes that it is in the ward's best interest to

sell or otherwise dispose of the ward's real property or interest

in real property, the court may appoint the guardian as special

conservator and authorize the special conservator to proceed under

section 5423(3). A guardian shall not otherwise sell the ward's

real property or interest in real property.

necessary to enable the ward to receive medical or other

professional care, counsel, treatment, or service. The power of a

guardian to execute a do-not-resuscitate order under subdivision

(d) does not affect or limit the power of a guardian to consent to

a physician's order to withhold resuscitative measures in a

hospital.

(d) The power of a guardian to execute, reaffirm, and revoke a

do-not-resuscitate order on behalf of a ward is subject to this

subdivision. A guardian shall not execute a do-not-resuscitate

order unless the guardian does all of the following:

(i) Not more than 14 days before executing the do-not-

resuscitate order, the guardian visits the ward and, if meaningful

communication is possible, consults with the ward about executing

the do-not-resuscitate order.

(ii) The guardian consults directly with the ward's attending

physician as to the specific medical indications that warrant the

do-not-resuscitate order.

(e) If a guardian executes a do-not-resuscitate order under

subdivision (d), not less than annually after the do-not-

resuscitate order is first executed, the guardian shall do all of

the following:

(i) Visit the ward and, if meaningful communication is

possible, consult with the ward about reaffirming the do-not-

resuscitate order.

(ii) Consult directly with the ward's attending physician as to

specific medical indications that may warrant reaffirming the do-

not-resuscitate order.

(f) ~~(d)~~ If a conservator for the ward's estate is not

appointed, the power to do any of the following:

(i) Institute a proceeding to compel a person under a duty to

support the ward or to pay money for the ward's welfare to perform

that duty.

(ii) Receive money and tangible property deliverable to the

ward and apply the money and property for the ward's support, care,

and education. The guardian shall not use money from the ward's

estate for room and board that the guardian or the guardian's

spouse, parent, or child have furnished the ward unless a charge

for the service is approved by court order made upon notice to at

least 1 of the ward's next of kin, if notice is possible. The

guardian shall exercise care to conserve any excess for the ward's

needs.

(g) ~~(e)~~ The guardian shall report the condition of the ward

and the ward's estate that is subject to the guardian's possession

or control, as required by the court, but not less often than

annually. The guardian shall also serve the report required under

this subdivision on the ward and interested persons as specified in

the Michigan court rules. A report under this subdivision shall

contain all of the following:

(i) The ward's current mental, physical, and social condition.

House Bill No. 4384 (S-1) as amended October 29, 2013

(ii) Improvement or deterioration in the ward's mental,

physical, and social condition that occurred during the past year.

(iii) The ward's present living arrangement and changes in his

or her living arrangement that occurred during the past year.

(iv) Whether the guardian recommends a more suitable living

arrangement for the ward.

(v) Medical treatment received by the ward.

(vi) Whether the guardian has executed, reaffirmed, or revoked

a do-not-resuscitate order on behalf of the ward during the past

year.

(vii) (vi) Services received by the ward.

(viii) (~~vii~~) A list of the guardian's visits with, and activities

on behalf of, the ward.

(ix) (~~viii~~) A recommendation as to the need for continued

guardianship.

(h) ~~(f)~~ If a conservator is appointed, the duty to pay to the

conservator, for management as provided in this act, the amount of

the ward's estate received by the guardian in excess of the amount

the guardian expends for the ward's current support, care, and

education. The guardian shall account to the conservator for the

amount expended.

Enacting section 1. This amendatory act does not take effect

unless House Bill No. 4382 of the 97th Legislature is enacted into

law.

[Enacting section 2. This amendatory act takes effect 90 days after the date it is enacted into law.]