March 17, 2016, Introduced by Reps. Cox, Tedder, Webber, Lyons, Price, Callton, Graves, Glenn, Chatfield, Cochran, LaVoy and Canfield and referred to the Committee on Judiciary.
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending sections 1106, 5303, 5305, and 5314 (MCL 700.1106,
700.5303, 700.5305, and 700.5314), section 1106 as amended by 2009
PA 46 and sections 5303, 5305, and 5314 as amended by 2013 PA 157.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1106. As used in this act:
(a) "Mental health professional" means an individual who is
trained and experienced in the area of mental illness or
developmental disabilities and who is 1 of the following:
(i) A physician who is licensed to practice medicine or
osteopathic medicine and surgery in this state under article 15 of
the public health code, 1978 PA 368, MCL 333.16101 to 333.18838.
(ii) A psychologist licensed to practice in this state under
article 15 of the public health code, 1978 PA 368, MCL 333.16101 to
333.18838.
(iii) A registered professional nurse licensed to practice in
this state under article 15 of the public health code, 1978 PA 368,
MCL 333.16101 to 333.18838.
(iv) A licensed master's social worker licensed under article
15 of the public health code, 1978 PA 368, MCL 333.16101 to
333.18838.
(v) A physician's assistant licensed to practice in this state
under article 15 of the public health code, 1978 PA 368, MCL
333.16101 to 333.18838.
(vi) A licensed professional counselor licensed under part 181
of the public health code, 1978 PA 368, MCL 333.18101 to 333.18117.
(b) "Michigan prudent investor rule" means the fiduciary
investment and management rule prescribed by part 5 of this
article.
(c) "Minor" means an individual who is less than 18 years of
age.
(d) "Minor ward" means a minor for whom a guardian is
appointed solely because of minority.
(e) "Money" means legal tender or a note, draft, certificate
of deposit, stock, bond, check, or credit card.
(f) "Mortgage" means a conveyance, agreement, or arrangement
in which property is encumbered or used as security.
(g) "Nonresident decedent" means a decedent who was domiciled
in another jurisdiction at the time of his or her death.
(h) "Organization" means a corporation, business trust,
estate, trust, partnership, limited liability company, association,
or joint venture; governmental subdivision, agency, or
instrumentality; public corporation; or another legal or commercial
entity.
(i) "Parent" includes, but is not limited to, an individual
entitled to take, or who would be entitled to take, as a parent
under this act by intestate succession from a child who dies
without a will and whose relationship is in question. Parent does
not include an individual who is only a stepparent, foster parent,
or grandparent.
(j) "Partial guardian" means that term as defined in section
600 of the mental health code, 1974 PA 258, MCL 330.1600.
(k) "Patient advocate" means an individual designated to
exercise powers concerning another individual's care, custody, and
medical or mental health treatment or authorized to make an
anatomical gift on behalf of another individual, or both, as
provided in section 5506.
(l) "Patient advocate designation" means the written document
executed and with the effect as described in sections 5506 to 5515.
(m) "Payor" means a trustee, insurer, business entity,
employer, government, governmental subdivision or agency, or other
person authorized or obligated by law or a governing instrument to
make payments.
(n) "Person" means an individual or an organization.
(o) "Personal representative" includes, but is not limited to,
an executor, administrator, successor personal representative, and
special personal representative, and any other person, other than a
trustee of a trust subject to article VII, who performs
substantially the same function under the law governing that
person's status.
(p) "Petition" means a written request to the court for an
order after notice.
(q) "Physician orders for scope of treatment form" means that
term as defined in section 5674 of the public health code, 1978 PA
368, MCL 333.5674.
(r) (q)
"Plenary guardian" means
that term as defined in
section 600 of the mental health code, 1974 PA 258, MCL 330.1600.
(s) (r)
"Proceeding" includes an
application and a petition,
and may be an action at law or a suit in equity. A proceeding may
be denominated a civil action under court rules.
(t) (s)
"Professional
conservator" means a person that
provides conservatorship services for a fee. Professional
conservator does not include a person who is an individual who is
related to all but 2 of the protected individuals for whom he or
she is appointed as conservator.
(u) (t)
"Professional guardian"
means a person that provides
guardianship services for a fee. Professional guardian does not
include a person who is an individual who is related to all but 2
of the wards for whom he or she is appointed as guardian.
(v) (u)
"Property" means anything
that may be the subject of
ownership, and includes both real and personal property or an
interest in real or personal property.
(w) (v)
"Protected individual"
means a minor or other
individual for whom a conservator has been appointed or other
protective order has been made as provided in part 4 of article V.
(x) (w)
"Protective proceeding"
means a proceeding under the
provisions of part 4 of article V.
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
must 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
order, physician orders for scope of treatment form, 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, 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 on
behalf of the ward either of the following:
(A)
A do-not-resuscitate order. on
behalf of the ward.
(B) A physician orders for scope of treatment form.
(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.
(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) Informing the individual that if a guardian is appointed,
the guardian may have the power to execute a physician orders for
scope of treatment form on behalf of the individual and, if
meaningful communication is possible, discern if the individual
objects to having a physician orders for scope of treatment form
executed on his or her behalf.
(f) (e)
Informing the individual of the
name of each person
known to be seeking appointment as guardian.
(g) (f)
Asking the individual and the
petitioner about the
amount of cash and property readily convertible into cash that is
in the individual's estate.
(h) (g) 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 order, physician orders for scope of treatment form, 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) Whether the individual objects to having a physician
orders for scope of treatment form executed on his or her behalf.
(viii) (vii) 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 this 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
this 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 If 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 because 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 in or without
outside 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. The power of a
guardian to execute a do-not-resuscitate order under subdivision
(d) or execute a physician orders for scope of treatment form under
subdivision (f) 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 However, 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 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 duty to 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) The power to execute, reaffirm, and revoke a physician
orders for scope of treatment form on behalf of a ward. However, a
guardian shall not execute a physician orders for scope of
treatment form unless the guardian does all of the following:
(i) Not more than 14 days before executing the physician
orders for scope of treatment form, visits the ward and, if
meaningful communication is possible, consults with the ward about
executing the physician orders for scope of treatment form.
(ii) Consults directly with the ward's attending physician as
to the specific medical indications that warrant the physician
orders for scope of treatment form.
(g) If a guardian executes a physician orders for scope of
treatment form under subdivision (f), not less than annually after
the physician orders for scope of treatment is first executed, the
duty to do all of the following:
(i) Visit the ward and, if meaningful communication is
possible, consult with the ward about reaffirming the physician
orders for scope of treatment form.
(ii) Consult directly with the ward's attending physician as
to specific medical indications that may warrant reaffirming the
physician orders for scope of treatment form.
(h) (f)
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 on 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.
(i) (g)
The guardian shall duty to 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 must 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) Whether the guardian has executed, reaffirmed, or
revoked a physician orders for scope of treatment form on behalf of
the ward during the past year.
(viii) (vii) Services
received by the ward.
(ix) (viii) A list
of the guardian's visits with, and
activities on behalf of, the ward.
(x) (ix) A
recommendation as to the need for continued
guardianship.
(j) (h)
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 takes effect 90 days
after the date it is enacted into law.
Enacting section 2. This amendatory act does not take effect
unless Senate Bill No.____ or House Bill No. 5482 (request no.
03918'15) of the 98th Legislature is enacted into law.