SENATE BILL NO. 254
April 11, 2023, Introduced by Senators WOJNO, IRWIN, 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 5104, 5106, 5303, 5304, 5305, 5306, 5306a,
5310, 5312, 5313, 5314, 5406, 5409, 5414, 5415, 5416, 5417, and
5418 (MCL 700.5104, 700.5106, 700.5303, 700.5304, 700.5305,
700.5306, 700.5306a, 700.5310, 700.5312, 700.5313, 700.5314,
700.5406, 700.5409, 700.5414, 700.5415, 700.5416, 700.5417, and
700.5418), section 5106 as amended by 2017 PA 136, sections 5303
and 5305 as amended by 2017 PA 155, section 5306 as amended by 2019
PA 170, section 5306a as added by 2012 PA 173, sections 5310 and
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5312 as amended by 2000 PA 54, section 5313 as amended by 2012 PA
545, section 5314 as amended by 2018 PA 594, section 5406 as
amended by 2000 PA 464, section 5409 as amended by 2000 PA 463, and
sections 5417 and 5418 as amended by 2000 PA 312, and by adding
sections 5106a, 5312a, 5314a, 5314b, and 5314c.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
1 Sec. 5104. (1) An interested person who desires to be notified
2 before an order is made in a guardianship proceeding, including a
3 proceeding subsequent to the appointment of a guardian under
4 section 5312, 5312a, or in a protective proceeding under section
5 5401 must file a request for notice with the register of the court
6 in which the proceeding is pending and with the attorney of record
7 of the guardian or conservator or, if none, with the guardian or
8 conservator, if any. A request is not effective unless it contains
9 a statement showing the interest of the person making it and the
10 address of that person or an attorney to whom notice is to be
11 given. The request is effective only as to a proceeding that occurs
12 after the filing. If a guardianship or protective proceeding is not
13 pending at the time a person files a request for notice as
14 authorized by this subsection, the person shall pay a fee for
15 filing the request, which fee shall must be in the same amount as,
16 but is separate from, the fee required to commence such a
17 proceeding.
18 (2) A governmental agency paying benefits to the individual to
19 be protected or before whom an application for benefits is pending
20 is an interested person in a protective proceeding.
21 Sec. 5106. (1) Subject to subsections (2) and (3), the court
22 may appoint or approve a professional guardian or professional
23 conservator, as appropriate, as a guardian or conservator under
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1 this act, or as a plenary guardian or partial guardian as those
2 terms are defined in section 600 of the mental health code, 1974 PA
3 258, MCL 330.1600.
4 (2) The court shall only appoint a professional guardian or
5 professional conservator as authorized under subsection (1) if the
6 court finds on the record all of the following:
7 (a) The appointment of the professional guardian or
8 professional conservator is in the ward's, developmentally disabled
9 individual's, incapacitated individual's, or protected individual's
10 best interests.
11 (b) There is no other person that is competent, suitable, and
12 willing to serve in that fiduciary capacity in accordance with
13 section 5212, 5312a, 5313, or 5409.
14 (3) The court shall not appoint a person as a professional
15 guardian or professional conservator as authorized under subsection
16 (1) unless the all of the following conditions are met:
17 (a) The professional guardian or professional conservator
18 files a bond in an amount and with the conditions as determined by
19 the court. For a professional conservator, the sureties and
20 liabilities of the bond are subject to sections 5410 and 5411.
21 (b) Either of the following conditions is met:
22 (i) Any of the following conditions are met:
23 (A) The person has obtained certification as set forth by
24 administrative order of the supreme court.
25 (B) The person will serve as professional guardian or
26 professional conservator, or both, for no more than 2 wards or
27 protected individuals.
28 (C) For an individual, the individual is licensed and in good
29 standing with the State Bar of Michigan and will serve as guardian
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1 or conservator, or both, for no more than 3 wards or protected
2 individuals.
3 (ii) The person is a financial institution.
4 (4) A professional guardian or professional conservator
5 appointed under this section shall not receive as a result of that
6 appointment a benefit beyond compensation specifically authorized
7 for that type of fiduciary by this act or the mental health code,
8 1974 PA 258, MCL 330.1001 to 330.2106. This subsection does not
9 prevent a person from providing compensation or other benefits,
10 from a source other than the estate of the ward, developmentally
11 disabled individual, incapacitated individual, or protected
12 individual, to a professional guardian or professional conservator
13 appointed or approved under this section. If a professional
14 guardian or professional conservator appointed or approved under
15 this section receives or is to receive compensation or other
16 benefits as a result of that appointment from a person other than
17 this state, a political subdivision of this state, or a trust
18 created under section 5407(2), the professional guardian or
19 professional conservator shall file with the appointing or
20 approving court a written statement of the compensation or other
21 benefit received or to be received, including the source of the
22 compensation or other benefit, in a form and in a manner prescribed
23 by the Michigan court rules. The professional guardian or
24 professional conservator shall serve a copy of the form described
25 in this subsection to the ward, developmentally disabled
26 individual, incapacitated individual, or protected individual and
27 to interested persons.
28 (5) A professional guardian appointed under this section shall
29 establish and maintain a schedule of visitation so that an
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1 individual associated with the professional guardian who is
2 responsible for the ward's care visits visit the ward within 3
3 months after the professional guardian's appointment and not less
4 than once within 3 months a month after each previous visit. A
5 professional guardian that has obtained certification as described
6 in subsection (3)(b)(i)(A) shall not delegate required visitation
7 under this subsection to another person unless the other person has
8 obtained certification as described in subsection (3)(b)(i)(A).
9 (6) A professional guardian appointed under this section shall
10 ensure that there are a sufficient number of employees assigned to
11 the care of wards for the purpose of performing the necessary
12 duties associated with ensuring that proper and appropriate care is
13 provided.
14 (7) A professional guardian or professional conservator may
15 use support staff and other professionals, under the professional
16 guardian's or professional conservator's active and direct
17 supervision, to perform office functions and client services.
18 Support staff and professionals may be used to gather and provide
19 necessary information to the professional guardian or professional
20 conservator regarding a ward or protected individual and to make
21 recommendations to the professional guardian or professional
22 conservator based on their knowledge and expertise. The
23 professional guardian or professional conservator shall not
24 delegate decision-making authority to support staff, professionals,
25 or other persons regarding execution of contracts or informed
26 consent decisions, including, but not limited to, medical, mental
27 health, placement, or care planning decisions.
28 (8) (7) For the purposes of the statutory authorization
29 required by section 1105(2)(e) of the banking code of 1999, 1999 PA
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1 276, MCL 487.11105, to act as a fiduciary in this state, if the
2 court appoints a for-profit or nonprofit, nonbanking corporation
3 organized under the laws of this state to serve in a fiduciary
4 capacity that is listed in subsection (1), the nonbanking
5 corporation is authorized to act in that fiduciary capacity. The
6 authorization under this subsection confers the fiduciary capacity
7 only to the extent necessary in the particular matter of each
8 appointment and is not a general grant of fiduciary authority. A
9 nonbanking corporation is not authorized to act in any other
10 fiduciary capacity.
11 Sec. 5106a. (1) Subject to subsection (2), the court shall not
12 appoint an individual as a guardian of a legally incapacitated
13 individual or conservator of a protected individual who is not a
14 minor, or both, under this article unless 1 of the following
15 conditions is met:
16 (a) The individual has obtained certification as set forth by
17 administrative order of the supreme court.
18 (b) The individual will serve as guardian or conservator, or
19 both, for no more than 2 legally incapacitated individuals or
20 protected individuals and receives no compensation for providing
21 those services.
22 (c) The individual is related to the legally incapacitated
23 individual or protected individual by blood, adoption, or marriage,
24 including step- or half-relations.
25 (d) The individual is licensed and in good standing with the
26 State Bar of Michigan and will serve as guardian or conservator, or
27 both, for no more than 3 legally incapacitated individuals or
28 protected individuals.
29 (2) This section does not apply to a professional guardian or
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1 professional conservator.
2 Sec. 5303. (1) An individual in his or her own behalf, or any
3 person interested in the individual's welfare, may petition for a
4 finding of incapacity and appointment of a guardian. The petition
5 must contain specific facts about the individual's condition and
6 specific examples of the individual's recent conduct that
7 demonstrate the need for a guardian's appointment.
8 (2) Before a petition is filed under this section, the court
9 shall provide the person intending to file the petition with
10 written information that sets forth alternatives to appointment of
11 a full guardian, including, but not limited to, a limited guardian,
12 conservator, patient advocate designation, do-not-resuscitate
13 order, physician orders for scope of treatment form, or durable
14 power of attorney with or without limitations on purpose,
15 authority, or time period, and an explanation of each alternative.
16 (3) Upon On the filing of a petition under subsection (1), the
17 court shall set a date for initial hearing. on the issue of
18 incapacity. Unless the allegedly incapacitated individual has legal
19 counsel of his or her own choice, the court shall appoint a
20 guardian ad litem to represent the person in the proceeding.for the
21 initial hearing. The court may enter a final order on the petition
22 at the initial hearing if the court does not set a trial date under
23 subsection (4).
24 (4) At the initial hearing under subsection (3), the court
25 shall set a trial date for the petition under subsection (1) if any
26 of the following apply:
27 (a) The guardian ad litem reports that the allegedly
28 incapacitated individual objects to any portion of the relief
29 requested by the petitioner.
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1 (b) The allegedly incapacitated individual or his or her legal
2 counsel requests the matter be set for trial.
3 (c) Any reason as justice requires.
4 (5) If the court sets a trial date at the initial hearing
5 under subsection (4), the court shall do both of the following:
6 (a) Enter a scheduling order to the extent necessary.
7 (b) Enter an order that provides, to the extent practicable,
8 for the attendance of the allegedly incapacitated individual at the
9 trial if the allegedly incapacitated individual wishes to attend.
10 An order entered under this subdivision may order any interested
11 person over whom the court has jurisdiction to facilitate
12 attendance or move the hearing site under section 5304.
13 Sec. 5304. (1) If necessary, the court may order that an
14 individual alleged to be incapacitated be examined by a physician
15 or mental health professional appointed by the court who shall
16 submit a report in writing to the court at least 5 days before the
17 hearing set under section 5303. A report prepared as provided in
18 this subsection shall must not be made a part of the proceeding's
19 public record, but shall must be available to the court or an
20 appellate court in which the proceeding is subject to review, to
21 the alleged incapacitated individual, to the petitioner, to their
22 respective legal counsels, and to other persons as the court
23 directs. The report may be used as provided in the Michigan rules
24 of evidence.
25 (2) The alleged incapacitated individual has the right to
26 secure an independent evaluation, at his or her own expense or, if
27 indigent, at the expense of the this state. Compensation for an
28 independent evaluation at public expense shall must be in an amount
29 that, based upon on time and expense, the court approves as
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1 reasonable.
2 (3) A report prepared under this section shall must contain
3 all of the following:
4 (a) A detailed description of the individual's physical or
5 psychological infirmities.cognitive and functional abilities and
6 limitations.
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.the individual is able to receive,
10 understand, participate in, and evaluate information in making
11 decisions.
12 (c) A If the report is being completed by a physician or
13 mental health professional, a listing of all medications the
14 individual is receiving, the dosage of each medication, and a
15 description of the effects each medication has upon on the
16 individual's behavior.
17 (d) A If the report is being completed by a physician or
18 mental health professional, a prognosis for improvement in the
19 individual's condition, including whether it is a permanent or
20 temporary condition, and a recommendation for the most appropriate
21 rehabilitation plan.
22 (e) The signatures and printed names of all individuals who
23 performed the evaluations, upon which the report is based.where
24 they are employed, the date of examination on which the report is
25 based, the length of time they have known the individual, and the
26 length of time they met the individual.
27 (f) Whether the individual has the ability to assign or
28 delegate responsibilities to ensure his or her well-being.
29 (g) Whether the individual has executed a document directing
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1 care or naming an agent to act on his or her behalf, including, but
2 not limited to, a power of attorney, patient advocate designation,
3 or do-not-resuscitate order.
4 (h) If the report is being completed by a visitor, it must
5 also include, at a minimum, an assessment of the existence of
6 current formal and informal supports, the ability of supportive
7 services and benefits to meet any unmet needs, the identification
8 of any existing concerns regarding the individual's well-being, and
9 the individual's ability to address those existing concerns.
10 (4) If the court finds that the report prepared under this
11 section does not substantially comply with the requirements of this
12 section, the court shall not consider the evaluation.
13 (5) (4) The individual alleged to be incapacitated is entitled
14 to be present at the hearing in person, and to see or hear all
15 evidence bearing upon on the individual's condition. If the
16 individual wishes to be present at the hearing, all practical steps
17 shall must be taken to ensure his or her presence, including, if
18 necessary, moving the hearing site.
19 (6) (5) The individual alleged to be incapacitated is entitled
20 to be represented by legal counsel, to present evidence, to cross-
21 examine witnesses, including the court-appointed physician or
22 mental health professional and the visitor, and to trial by jury.
23 (7) (6) The issue of incapacity may be determined at a closed
24 hearing without a jury if requested by the individual alleged to be<