Legislative Analysis
Phone: (517) 373-8080
GUARDIANS AND CONSERVATORS
http://www.house.mi.gov/hfa
House Bill 4909 (H-1) as reported from committee Analysis available at
Sponsor: Rep. Kelly Breen http://www.legislature.mi.gov
House Bill 4910 (H-1) as reported
Sponsor: Rep. Penelope Tsernoglou
House Bill 4911 (H-1) as reported
Sponsor: Rep. Graham Filler
House Bill 4912 (H-1) as reported House Bill 5047 (H-1) as reported
Sponsor: Rep. Ken Borton Sponsor: Rep. Betsy Coffia
Committee: Judiciary
Complete to 10-24-23
SUMMARY:
House Bill 4909 to 4912 and 5047 would amend several provisions in the Estates and Protected
Individuals Code (EPIC) regarding guardians and conservators in Michigan. The bills would
notably do the following:
• Require professional guardians and professional conservators to be licensed and
establish a process for processing complaints and upholding licensure standards.
• Establish the Office of State Guardian Board and prescribe its duties and that of its
executive director to facilitate licensure.
• Establish new suitability requirements in the appointment of a guardian or conservator.
• Revise the duties of a guardian ad litem related to guardianship and conservatorship
proceedings.
• Modify requirements concerning the appointment of a temporary guardian or a
successor conservator.
House Bill 4909 would amend suitability requirements and priority provisions for guardians
and conservators and make related changes.
Professional guardians and conservators
The act currently requires a professional guardian to establish and maintain a schedule of
visitation so that an individual associated with the guardian who is responsible for the ward’s
care visits the ward within three months after the professional guardian’s appointment and at
least once within three months after each previous visit. The bill would eliminate this provision.
The bill would add language providing that a professional guardian or conservator may use
support staff and other professionals to perform office functions and client services under the
guardian’s or conservator’s active and direct supervision. Support staff and professionals could
be used to gather and provide necessary information to the guardian or conservator regarding
a ward or protected individual and make recommendations based on their knowledge and
expertise. However, the guardian or conservator could not delegate decision-making authority
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 to support staff, a professional, or another person regarding financial decisions or decisions
requiring informed consent, such as medical, mental health, placement, or care planning
decisions, unless the support staff, professional, or other person holds a license issued under
the Part 5A proposed by House Bill 5047.
Guardian and conservator certification
The bill would prohibit a court from appointing a person as a professional guardian of a legally
incapacitated individual or professional conservator of a protected individual who is not a
minor, or both, unless the person holds a license issued under the Part 5A proposed by House
Bill 5047. (This would not apply to a financial institution appointed as a professional
conservator.) These provisions would not become effective until the governor appoints
members and an executive director of the Office of State Guardian Board under Part 5A.
Order finding incapacity
The bill would remove a provision that now allows an order finding incapacity to specify a
minimum period of up to 182 days during which certain petitions or requests1 cannot be filed
without special leave of the court.
Suitability of guardians
Currently under the act, the ward or a person interested in the ward’s welfare can petition for
an order removing the guardian, appointing a successor guardian, modifying the guardianship’s
terms, or terminating the guardianship. The bill would add that a petition for an order
appointing a successor guardian is subject to the priority of appointment, including provisions
concerning suitability as described below.
The act now provides that the court may appoint a competent person as guardian of a legally
incapacitated individual, but cannot appoint as a guardian an agency, public or private, that
financially benefits from directly providing housing, medical, mental health, or social services
to the individual. The bill would remove “directly” from this provision and add that an agency
could also not benefit from providing caregiving to the individual.
The court is currently required to appoint a person as a guardian to an individual in a specific
order of priority. The bill would add that the person must be suitable, based on a determination
of specific findings of the court that includes at least all of the following factors:
• The preference of the individual subject to the guardianship, including who should
serve and not serve as guardian.
• The person’s availability to the individual.
• The person’s history and relationship with the individual.
• The person’s criminal history that is relevant to the care, custody, and control of the
individual.
• The person’s personal history that will facilitate fulfillment of duties, including
employment, training, skills, and stability.
• The person’s ability to fulfill duties regardless of interpersonal disputes between
interested persons or others with an interest in the welfare of the individual.
(Interpersonal disputes could not be the sole basis for finding certain persons with
1
Specifically, a request for a finding that a ward is no longer an incapacitated individual or for an order removing the
guardian, modifying the guardianship’s terms, or terminating the guardianship.
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 priority as unsuitable unless the court finds by clear and convincing evidence that no
other person is able to fulfill the duties.)
• The person’s ability to meet the requirements of section 5410 (pertaining to bonds), if
applicable.
When deciding between two certain persons with equal priority, the court would have to weigh
the above factors with specific findings on the record. The court could appoint two persons to
serve as co-guardians and to act jointly, unless the order of appointment and letters of
guardianship state otherwise. However, a co-guardian could delegate authority to the other co-
guardian.
If none of the persons with priority are suitable as described above or willing to serve, the court
could appoint any competent person who is suitable and willing to serve, including a
professional guardian.
If the court appoints a professional guardian that employs two or more employees who hold a
license issued under the Part 5A proposed by House Bill 5047, the professional guardian would
have to designate a licensed employee who would have to be the decision maker for the ward.
The professional guardian would have to notify the ward and interested persons in writing of
the name and contact information of the designated decision maker by seven days after the
court appoints the professional guardian and by seven days of any permanent change in the
designated decision maker. The professional guardian would have to make the decision
maker’s name and contact information available on request to the court, the ward’s caregivers,
medical and service providers, advocates, law enforcement, and any other person who requests
the information to address a concern regarding the ward’s health, safety, or welfare.
Letters of guardianship would have to expire not later than 15 months after the date of
appointment. The expiration date would have to be printed on the letters of guardianship.
Letters of guardianship could not be reissued to a guardian that fails 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. The probate register could reissue letters of guardianship under this provision
without a hearing.
Priority of appointment of conservators
The act also now prescribes an order of priority when appointing a conservator of a protected
individual’s estate. The bill would add that the person must be suitable, based on a
determination of specific findings of the court, including at least all of the following factors:
• The preference of the individual subject to the conservatorship, including who should
serve and not serve as conservator.
• The person’s availability to the individual.
• The person’s history and relationship with the individual.
• The person’s criminal history that is relevant to the role of a conservator.
• The person’s personal history that will facilitate fulfillment of duties, including
employment, training, skills, and stability.
• The person’s ability to fulfill duties regardless of interpersonal disputes between
interested persons or others with an interest in the welfare of the individual.
(Interpersonal disputes could not be the sole basis for finding certain persons with
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 priority as unsuitable unless the court finds by clear and convincing evidence that no
person with priority can fulfill the duties.)
• The person’s ability to meet the requirements of section 5410 (pertaining to bonds).
The act now requires the court to select the person best qualified to serve if persons have equal
priority. The bill would require the court to weigh the above factors in deciding between two
persons with equal priority, stating specific findings on the record. Also, under the bill, the
court could appoint up to two persons to serve as co-conservators. Unless the order of
appointment and letters of conservatorship stated otherwise, co-conservators would have to act
jointly.
Letters of conservatorship would have to expire not later than 15 months after the date of
appointment. The expiration date would have to be printed on the letters of conservatorship.
Letters of conservatorship could not be reissued to a conservator that fails to account to the
court as required. The probate register could reissue letters of conservatorship under this
provision without a hearing.
MCL 700.5104 et seq.
House Bill 4910 would revise the duties of a guardian ad litem appointed by a court in a
guardianship proceeding when an individual is alleged to be incapacitated (no longer having
the ability to provide self-care) or a proceeding to appoint a conservator for a protected
individual (who can no longer manage their property or business affairs).
Generally speaking, under Michigan law, any person may petition a court to appoint a guardian
or a conservator for an individual who, because of mental status or disability, may no longer
have the capacity to make legal decisions for themselves. If the incapacitated or protected
individual does not have an attorney, the court may appoint a guardian ad litem 2 to represent
them. As part of the process, the guardian ad litem may collect information to help the court
decide whether to appoint a guardian or conservator and, if so, who should fill that position.
Among other things, a guardian ad litem must personally visit the individual and explain the
petition for a guardian or conservator to be appointed, the individual’s rights, and what may
happen at the hearing on the petition.
The bill would remove and replace the current list of duties for a guardian ad litem when an
individual is alleged to be incapacitated.
The bill also would propose a list of duties for a guardian ad litem for a person alleged to need
protection or a protected individual in a conservatorship proceeding that is similar to the list of
duties proposed for guardianship proceedings.
Guardian ad litem duties
Under the bill, a guardian ad litem’s duties when an individual is alleged to be an incapacitated
would include all of the following:
• Impartially gather information as provided by law.
2
The phrase ad litem is Latin for “for the suit” or, more expansively, “for purposes of the legal action only.” A
guardian ad litem acts in a lawsuit or legal proceeding on behalf of a party who is incapable of representing themselves.
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 • Seek information from the individual, communicating in a manner the individual can
best understand and noting in the required report if there is a barrier to communication.
• Interview the individual in person, at their location, and out of the presence of any
interested persons.
• Advise the individual that the guardian ad litem does not represent them as an attorney
and that no attorney-client relationship has been created.
• Identify whether the individual wishes to be present at the hearing and, if they do not,
identify the reasons.
• Identify any barrier to the individual’s attending or fully participating in the hearing,
including the need for assistive technology, transportation, or other support, and
whether the individual has a plan for how they will attend.
• Identify whether the individual plans to retain legal counsel or wants appointed
counsel. If the individual does not have a plan or does not request appointed legal
counsel, the guardian ad litem would have to make a recommendation as to whether
legal counsel should be appointed.
• Identify whether court-ordered mediation could be used to resolve a disagreement or
dispute related to the petition.
[The duties described above would also apply to a guardian ad litem appointed for an individual
alleged to need protection, with relation to a conservator instead of a guardian.]
The duties of a guardian ad litem appointed when an individual is alleged to be incapacitated
or a legally incapacitated individual would include the following, as applicable:
• Explain the nature, purpose, and legal effects of a guardian’s appointment.
• Explain who filed the petition and who, if anyone, has been nominated as guardian.
• Explain the hearing procedure and the individual’s rights, including the right to do the
following:
o Contest the petition in whole or in part.
o Request limits on the guardian’s powers.
o Be present at the hearing.
o Request a reasonable accommodation to allow participation as fully as
possible, including with assistive technology or other support.
o Be represented by legal counsel of their choice or, if they cannot secure legal
counsel, the right to have legal counsel appointed by the court.
o Request an independent medical evaluation.
• Explain that a guardian may take certain actions on their behalf and inform the
individual that a guardian could have any of the following powers, and—if meaningful
communication is possible—discern whether the individual objects to the guardian
having any of those powers:
o Executing a do-not-resuscitate (DNR) order.
o Executing a physician orders for scope of treatment (POST) form.
o Consenting to any medical treatment.
o Consenting to placement decisions, including a move to a nursing facility or
adult foster care home.
o Choosing whether they can marry or divorce.
o Handling financial and property matters, including the sale or disposal of
personal property and maintenance of real property.
• Identify whether the individual objects to any particular person proposed as guardian.
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 • Identify, in order of preference, who the individual would want to serve if a guardian
were to be appointed.
• Identify who the individual would not want to serve.
[The duties described above would also apply to a guardian ad litem appointed for an individual
alleged to need protection, with relation to a conservator instead of a guardian, and an
explanation of the conservator’s powers rather than those of a guardian that are listed above.]
Written reports
A guardian ad litem appointed for an individual alleged to be incapacitated or a legally
incapacitated individual would have to file a