March 6, 2013, Introduced by Rep. Kurtz and referred to the Committee on Judiciary.
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
register for an order of informal probate or informal appointment
under part 3 of article III.
(c) "Attorney" means, if appointed to represent a child under
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.
(c) Explaining to the individual the hearing procedure and the
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.
(C) Execution of a patient advocate designation, do-not-
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.
(c) The power to give the consent or approval that is
necessary to enable the ward to receive medical or other
professional care, counsel, treatment, or service.
(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.
(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 Senate Bill No.____ or House Bill No. 4382(request no.
01829'13) of the 97th Legislature is enacted into law.