SENATE BILL NO. 253
April 11, 2023, Introduced by Senators JOHNSON, IRWIN, WOJNO, POLEHANKI, CHANG,
CAVANAGH, RUNESTAD and BAYER and referred to the Committee on Civil Rights,
Judiciary, and Public Safety.
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending sections 5106, 5304, 5305, 5308, 5314, and 5418 (MCL
700.5106, 700.5304, 700.5305, 700.5308, 700.5314, and 700.5418),
section 5106 as amended by 2017 PA 136, section 5305 as amended by
2017 PA 155, section 5308 as amended by 2005 PA 204, section 5314
as amended by 2018 PA 594, and section 5418 as amended by 2000 PA
312.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
1 Sec. 5106. (1) Subject to subsections (2) and (3), the court
2 may appoint or approve a professional guardian or professional
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1 conservator, as appropriate, as a guardian or conservator under
2 this act, or as a plenary guardian or partial guardian as those
3 terms are defined in section 600 of the mental health code, 1974 PA
4 258, MCL 330.1600.
5 (2) The court shall only appoint a professional guardian or
6 professional conservator as authorized under subsection (1) if the
7 court finds on the record all of the following:
8 (a) The appointment of the professional guardian or
9 professional conservator is in the ward's, developmentally disabled
10 individual's, incapacitated individual's, or protected individual's
11 best interests.
12 (b) There is no other person that is competent, suitable, and
13 willing to serve in that fiduciary capacity in accordance with
14 section 5212, 5313, or 5409.
15 (3) The court shall not appoint a professional guardian or
16 professional conservator as authorized under subsection (1) unless
17 the both of the following conditions are met, as applicable:
18 (a) The professional guardian or professional conservator
19 files a bond in an amount and with the conditions as determined by
20 the court. For a professional conservator, the sureties and
21 liabilities of the bond are subject to sections 5410 and 5411.
22 (b) For a professional guardian, the professional guardian
23 will serve as professional guardian for not more than 200 legally
24 incapacitated individuals.
25 (4) A professional guardian or professional conservator
26 appointed under this section shall not receive as a result of that
27 appointment a benefit beyond compensation specifically authorized
28 for that type of fiduciary by this act or the mental health code,
29 1974 PA 258, MCL 330.1001 to 330.2106. This subsection does not
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1 prevent a person from providing compensation or other benefits,
2 from a source other than the estate of the ward, developmentally
3 disabled individual, incapacitated individual, or protected
4 individual, to a professional guardian or professional conservator
5 appointed or approved under this section. If a professional
6 guardian or professional conservator appointed or approved under
7 this section receives or is to receive compensation or other
8 benefits as a result of that appointment from a person other than
9 this state, a political subdivision of this state, or a trust
10 created under section 5407(2), the professional guardian or
11 professional conservator shall file with the appointing or
12 approving court a written statement of the compensation or other
13 benefit received or to be received, including the source of the
14 compensation or other benefit, in a form and in a manner prescribed
15 by the Michigan court rules. The professional guardian or
16 professional conservator shall serve a copy of the form described
17 in this subsection to the ward, developmentally disabled
18 individual, incapacitated individual, or protected individual and
19 to interested persons.
20 (5) A professional guardian appointed under this section shall
21 establish and maintain a schedule of visitation so that an
22 individual associated with the professional guardian who is
23 responsible for the ward's care visits visit the ward within 3
24 months after the professional guardian's appointment and not less
25 than once within 3 months after each previous visit.
26 (6) A professional guardian appointed under this section shall
27 ensure that there are a sufficient number of employees assigned to
28 the care of wards for the purpose of performing the necessary
29 duties associated with ensuring that proper and appropriate care is
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1 provided.
2 (7) For the purposes of the statutory authorization required
3 by section 1105(2)(e) of the banking code of 1999, 1999 PA 276, MCL
4 487.11105, to act as a fiduciary in this state, if the court
5 appoints a for-profit or nonprofit, nonbanking corporation
6 organized under the laws of this state to serve in a fiduciary
7 capacity that is listed in subsection (1), the nonbanking
8 corporation is authorized to act in that fiduciary capacity. The
9 authorization under this subsection confers the fiduciary capacity
10 only to the extent necessary in the particular matter of each
11 appointment and is not a general grant of fiduciary authority. A
12 nonbanking corporation is not authorized to act in any other
13 fiduciary capacity.
14 Sec. 5304. (1) If necessary, the The court may shall order
15 that an individual alleged to be incapacitated be examined by a
16 physician or mental health professional appointed by the court who
17 shall submit a report in writing to the court at least 5 days
18 before the hearing set under section 5303. A report prepared as
19 provided in this subsection shall must not be made a part of the
20 proceeding's public record, but shall must be available to the
21 court or an appellate court in which the proceeding is subject to
22 review, to the alleged incapacitated individual, to the petitioner,
23 to their respective legal counsels, and to other persons as the
24 court directs. The report may be used as provided in the Michigan
25 rules of evidence.
26 (2) The alleged incapacitated individual has the right to
27 secure an independent evaluation, at his or her own expense or, if
28 indigent, at the expense of the state. Compensation for an
29 independent evaluation at public expense shall must be in an amount
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1 that, based upon on time and expense, the court approves as
2 reasonable.
3 (3) A report prepared under this section shall must contain
4 all of the following:
5 (a) A detailed description of the individual's physical or
6 psychological infirmities.
7 (b) An explanation of how and to what extent each infirmity
8 interferes with the individual's ability to receive or evaluate
9 information in making decisions.
10 (c) A listing of all medications the individual is receiving,
11 the dosage of each medication, and a description of the effects
12 each medication has upon on the individual's behavior.
13 (d) A prognosis for improvement in the individual's condition
14 and a recommendation for the most appropriate rehabilitation plan.
15 (e) The signatures of all individuals who performed the
16 evaluations upon on which the report is based.
17 (4) The individual alleged to be incapacitated is entitled to
18 must be present at the hearing in person, and to see or hear all
19 evidence bearing upon on the individual's condition. If the
20 individual wishes to be present at the hearing, all All practical
21 steps shall must be taken to ensure his or her presence, including,
22 if necessary, moving the hearing site.
23 (5) The individual is entitled to be represented by legal
24 counsel, to present evidence, to cross-examine witnesses, including
25 the court-appointed physician or mental health professional and the
26 visitor, and to trial by jury.
27 (6) The issue of incapacity may be determined at a closed
28 hearing without a jury if requested by the individual alleged to be
29 incapacitated or that individual's legal counsel.
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1 Sec. 5305. (1) The duties of a guardian ad litem appointed for
2 an individual alleged to be incapacitated include all of the
3 following:
4 (a) Personally visiting the individual.
5 (b) Explaining to the individual the nature, purpose, and
6 legal effects of a guardian's appointment.
7 (c) Explaining to the individual the hearing procedure and the
8 individual's rights in the hearing procedure, including, but not
9 limited to, all of the following:
10 (i) The right to contest the petition.
11 (ii) The right to request limits on the guardian's powers,
12 including a limitation on the guardian's power to execute on behalf
13 of the ward either of the following:
14 (A) A do-not-resuscitate order.
15 (B) A physician orders for scope of treatment form.
16 (iii) The right to object to a particular person being appointed
17 guardian.
18 (iv) The right to be present at the hearing.
19 (v) The right to be represented by legal counsel.
20 (vi) The right to have legal counsel appointed for the
21 individual if he or she is unable to afford legal counsel.
22 (d) Informing the individual that if a guardian is appointed,
23 the guardian may have the power to execute a do-not-resuscitate
24 order on behalf of the individual and, if meaningful communication
25 is possible, discern if the individual objects to having a do-not-
26 resuscitate order executed on his or her behalf.
27 (e) Informing the individual that if a guardian is appointed,
28 the guardian may have the power to execute a physician orders for
29 scope of treatment form on behalf of the individual and, if
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1 meaningful communication is possible, discern if the individual
2 objects to having a physician orders for scope of treatment form
3 executed on his or her behalf.
4 (f) Informing the individual of the name of each person known
5 to be seeking appointment as guardian.
6 (g) Asking the individual and the petitioner about the amount
7 of cash and property readily convertible into cash that is in the
8 individual's estate.
9 (h) Making determinations, and informing the court of those
10 determinations, on all of the following:
11 (i) Whether there are 1 or more appropriate alternatives to the
12 appointment of a full guardian or whether 1 or more actions should
13 be taken in addition to the appointment of a guardian. Before
14 informing the court of his or her determination under this
15 subparagraph, the guardian ad litem shall consider the
16 appropriateness of at least each of the following as alternatives
17 or additional actions:
18 (A) Appointment of a limited guardian, including the specific
19 powers and limitation on those powers the guardian ad litem
20 believes appropriate.
21 (B) Appointment of a conservator or another protective order
22 under part 4 of this article. In the report informing the court of
23 the determinations under this subdivision, the guardian ad litem
24 shall include an estimate of the amount of cash and property
25 readily convertible into cash that is in the individual's estate.
26 (C) Execution of a patient advocate designation, do-not-
27 resuscitate order, physician orders for scope of treatment form, or
28 durable power of attorney with or without limitations on purpose,
29 authority, or duration.
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1 (ii) Whether a disagreement or dispute related to the
2 guardianship petition might be resolved through court ordered
3 mediation.
4 (iii) Whether the individual wishes to be present at the
5 hearing.
6 (iii) (iv) Whether the individual wishes to contest the petition.
7 (iv) (v) Whether the individual wishes limits placed on the
8 guardian's powers.
9 (v) (vi) Whether the individual objects to having a do-not-
10 resuscitate order executed on his or her behalf.
11 (vi) (vii) Whether the individual objects to having a physician
12 orders for scope of treatment form executed on his or her behalf.
13 (vii) (viii) Whether the individual objects to a particular
14 person being appointed guardian.
15 (2) The court shall not order compensation of the guardian ad
16 litem unless the guardian ad litem states on the record or in the
17 guardian ad litem's written report that he or she has complied with
18 subsection (1).
19 (3) If the individual alleged to be incapacitated wishes to
20 contest the petition, to have limits placed on the guardian's
21 powers, or to object to a particular person being appointed
22 guardian and if legal counsel has not been secured, the court shall
23 appoint legal counsel to represent the individual alleged to be
24 incapacitated. If the individual alleged to be incapacitated is
25 indigent, this state shall bear the expense of legal counsel.
26 (4) If the individual alleged to be incapacitated requests
27 legal counsel or the guardian ad litem determines it is in the
28 individual's best interest to have legal counsel, and if legal
29 counsel has not been secured, the court shall appoint legal
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1 counsel. If the individual alleged to be incapacitated is indigent,
2 this state shall bear the expense of legal counsel.
3 (5) If the individual alleged to be incapacitated has legal
4 counsel appointed under subsection (3) or (4), the appointment of a
5 guardian ad litem terminates.
6 Sec. 5308. (1) The Except as otherwise provided in subsection
7 (2), a guardian's authority and responsibility for a legally
8 incapacitated individual terminates upon on the death of the
9 guardian or ward, upon on the determination of incapacity of the
10 guardian, or upon on removal or resignation as provided in section
11 5310. Testamentary appointment of a guardian under an unprobated
12 will or a will informally probated under article III terminates if
13 the will is later denied probate in a formal testacy proceeding.
14 (2) Within 24 hours after the death of a ward, the guardian
15 shall notify the ward's heirs of the ward's death. After the death
16 of a ward, if the guardian knows or becomes aware of the funeral
17 arrangements of the decedent, the guardian shall notify the
18 decedent's heirs about the funeral arrangements within 24 hours
19 after the guardian knows or becomes aware of the funeral
20 arrangements. A notice under this subsection may be written or
21 oral.
22 Sec. 5314. If meaningful communication is possible, a legally
23 incapacitated individual's guardian shall consult with the legally
24 incapacitated individual before making a major decision affecting
25 the legally incapacitated individual. To the extent a guardian of a
26 legally incapacitated individual is granted powers by the court
27 under section 5306, the guardian is responsible for the ward's
28 care, custody, and control, but is not liable to third persons
29 because of that responsibility for the ward's acts. In particular
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1 and without qualifying the previous sentences, a guardian has all
2 of the following powers and duties, to the extent granted by court
3 order:
4 (a) The custody of the person of the ward and the power to
5 establish the ward's place of residence in or outside this state.
6 The guardian shall visit the ward within 3 months after the
7 guardian's appointment and not less than once within 3 months after
8 each previous visit. The guardian shall notify the court within 14
9 days of a change in the ward's place of residence or a change in
10 the guardian's place of residence.
11 (b) If entitled to custody of the ward, the duty to make
12 provision for the ward's care, comfort, and maintenance and, when
13 appropriate, arrange for the ward's training and education. The
14 guardian shall secure services to restore the ward to the best
15 possible state of mental and physical well-being so that the ward
16 can return to self-management at the earliest possible time.
17 Without regard to custodial rights of the ward's person, the
18 guardian shall take reasonable care of the ward's clothing,
19 furniture, vehicles, and other personal effects and commence a
20 protective proceeding if the ward's other property needs
21 protection. If a guardian commences a protective proceeding because
22 the guardian believes that it is in the ward's best interest to
23 sell or otherwise dispose of the ward's real property or interest
24 in real property, the court may appoint the guardian as special
25 conservator and authorize the special conservator to proceed under
26 section 5423(3). A