February 12, 2013, Introduced by Senator HILDENBRAND and referred to the Committee on Families, Seniors and Human Services.
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending sections 5303 and 5306 (MCL 700.5303 and 700.5306),
section 5303 as amended by 2000 PA 468 and section 5306 as amended
by 2004 PA 532.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
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. A person
interested in the welfare of a minor who is not less than 17 years
and 6 months of age may petition for a finding of incapacity and
appointment of guardian effective on the minor's eighteenth
birthday. 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, 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. If
the allegedly incapacitated individual is a minor who is not less
than 17 years and 6 months of age, the court may set a hearing on
the issue of incapacity before the minor's eighteenth birthday.
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 individual
in the proceeding.
Sec. 5306. (1) The court may appoint a guardian if the court
finds by clear and convincing evidence both that the individual for
whom a guardian is sought is an incapacitated individual and that
the appointment is necessary as a means of providing continuing
care and supervision of the incapacitated individual, with each
finding supported separately on the record. Alternately, the court
may dismiss the proceeding or enter another appropriate order.
(2) The court shall grant a guardian only those powers and
only for that period of time as is necessary to provide for the
demonstrated need of the incapacitated individual. The court shall
design the guardianship to encourage the development of maximum
self-reliance and independence in the individual. If the court is
aware that an individual has executed a patient advocate
designation under section 5506, the court shall not grant a
guardian any of the same powers that are held by the patient
advocate. A court order establishing a guardianship shall specify
any limitations on the guardian's powers and any time limits on the
guardianship.
(3) If the court finds by clear and convincing evidence that
an individual is incapacitated and lacks the capacity to do some,
but not all, of the tasks necessary to care for himself or herself,
the court may appoint a limited guardian to provide guardianship
services to the individual, but the court shall not appoint a full
guardian.
(4) If the court finds by clear and convincing evidence that
the individual is incapacitated and is totally without capacity to
care for himself or herself, the court shall specify that finding
of fact in an order and may appoint a full guardian.
(5) If an individual executed a patient advocate designation
under section 5506 before the time the court determines that he or
she became a legally incapacitated individual, a guardian does not
have and shall not exercise the power or duty of making medical or
mental health treatment decisions that the patient advocate is
designated to make. If, however, a petition for guardianship or for
modification under section 5310 alleges and the court finds that
the patient advocate designation was not executed in compliance
with section 5506, that the patient advocate is not complying with
the terms of the designation or with the applicable provisions of
sections 5506 to 5515, or that the patient advocate is not acting
consistent with the ward's best interests, the court may modify the
guardianship's terms to grant those powers to the guardian.
(6) If the incapacitated individual is a minor who is not less
than 17 years and 6 months of age, the court may make the
appointment of a guardian under subsection (1) effective on the
minor's eighteenth birthday.