Bill Text: MI HB5215 | 2009-2010 | 95th Legislature | Introduced


Bill Title: Probate; guardians and conservators; grant of full or limited powers to guardian of legally incapacitated individual; clarify, and provide for notice to individual of his or her rights. Amends secs. 5306, 5314, 5315 & 5316 of 1998 PA 386 (MCL 700.5306 et seq.) & adds sec. 5306a.

Spectrum: Moderate Partisan Bill (Democrat 4-1)

Status: (Introduced - Dead) 2009-08-04 - Printed Bill Filed 07/29/2009 [HB5215 Detail]

Download: Michigan-2009-HB5215-Introduced.html

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

HOUSE BILL No. 5215

 

July 28, 2009, Introduced by Reps. Robert Jones, Lemmons, Rocca, Constan and Gregory and referred to the Committee on Senior Health, Security, and Retirement.

 

     A bill to amend 1998 PA 386, entitled

 

"Estates and protected individuals code,"

 

by amending sections 5306, 5314, 5315, and 5316 (MCL 700.5306,

 

700.5314, 700.5315, and 700.5316), section 5306 as amended by 2004

 

PA 532, section 5314 as amended by 2000 PA 469, and section 5316 as

 

amended by 2000 PA 54, and by adding section 5306a.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     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

 

what powers are granted to the guardian, any limitations on the

 

guardian's powers, and any time limits on the guardianship. The

 

incapacitated individual retains all rights and powers not

 

expressly or impliedly transferred to the guardian by court order.

 

     (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.

 

     Sec. 5306a. (1) An individual for whom a guardian is appointed

 

under section 5306 has all of the following rights:

 

     (a) To object to the appointment of a successor guardian by

 

will or other writing, as provided in section 5301.

 

     (b) To have the guardianship proceeding commenced and

 

conducted in the place where the individual resides or is present

 

or, if the individual is admitted to an institution by a court, in

 

the county in which the court is located, as provided in section

 

5302.

 

     (c) To petition on his or her own behalf for the appointment

 

of a guardian, as provided in section 5303.

 

     (d) To have legal counsel of his or her own choice represent

 

him or her on the petition to appoint a guardian, as provided in

 

sections 5303, 5304, and 5305.

 

     (e) If he or she is not represented by legal counsel, to the

 

appointment of a guardian ad litem to represent the individual on

 


the petition to appoint a guardian, as provided in section 5303.

 

     (f) To an independent evaluation of his or her capacity by a

 

physician or mental health professional, at public expense if he or

 

she is indigent, as provided in section 5304.

 

     (g) To be present at the hearing on the petition to appoint a

 

guardian and to have all practical steps taken to ensure this,

 

including, if necessary, moving the hearing site, as provided by

 

section 5304.

 

     (h) To see or hear all the evidence presented in the hearing

 

on the petition to appoint a guardian, as provided in section 5304.

 

     (i) To present evidence and cross-examine witnesses in the

 

hearing on the petition to appoint a guardian, as provided in

 

section 5304.

 

     (j) To a trial by jury on the petition to appoint a guardian,

 

as provided in section 5304.

 

     (k) To a closed hearing on the petition to appoint a guardian,

 

as provided in section 5304.

 

     (l) If a guardian ad litem is appointed, to be personally

 

visited by the guardian ad litem, as provided in section 5305.

 

     (m) If a guardian ad litem is appointed, to an explanation by

 

the guardian ad litem of the nature, purpose, and legal effects of

 

a guardian's appointment, as provided in section 5305.

 

     (n) If a guardian ad litem is appointed, to an explanation by

 

the guardian ad litem of the individual's rights in the hearing

 

procedure, as provided in section 5305.

 

     (o) If a guardian ad litem is appointed, to be informed by the

 

guardian ad litem of the right to contest the petition, to request

 


limits on the guardian's powers, to object to a particular person

 

being appointed guardian, to be present at the hearing, to be

 

represented by legal counsel, and to have legal counsel appointed

 

if the individual is unable to afford legal counsel, as provided in

 

section 5305.

 

     (p) To be informed of the name of each person known to be

 

seeking appointment as guardian, including, if a guardian ad litem

 

is appointed, to be informed of the names by the guardian ad litem

 

as provided in section 5305.

 

     (q) To require that proof of incapacity and the need for a

 

guardian be proven by clear and convincing evidence, as provided in

 

section 5306.

 

     (r) To the limitation of the powers and period of time of a

 

guardianship to only the amount and time that is necessary, as

 

provided in section 5306.

 

     (s) To a guardianship designed to encourage the development of

 

maximum self-reliance and independence as provided in section 5306.

 

     (t) To prevent the grant of powers to a guardian if those

 

powers are already held by a valid patient advocate, as provided in

 

section 5306.

 

     (u) To periodic review of the guardianship by the court,

 

including the right to a hearing and the appointment of an attorney

 

if issues arise upon the review of the guardianship, as provided in

 

section 5309.

 

     (v) To, at any time, seek modification or termination of the

 

guardianship by informal letter to the judge, as provided in

 

section 5310.

 


     (w) To a hearing within 28 days of requesting a review,

 

modification, or termination of the guardianship, as provided in

 

section 5310.

 

     (x) To the same rights on a petition for modification or

 

termination of the guardianship with respect to the appointment of

 

a visitor as apply to a petition for appointment of a guardian, as

 

provided in section 5310.

 

     (y) To personal notice of a petition for appointment or

 

removal of a guardian, as provided in section 5311.

 

     (z) To written notice of the nature, purpose, and legal

 

effects of the appointment of a guardian, as provided in section

 

5311.

 

     (aa) To choose the person who will serve as guardian, if the

 

chosen person is suitable and willing to serve, as provided in

 

section 5313.

 

     (bb) To consult with the guardian about major decisions

 

affecting the individual, if meaningful conversation is possible,

 

as provided in section 5314.

 

     (cc) To quarterly visits by the guardian, as provided in

 

section 5314.

 

     (dd) To have the guardian notify the court within 14 days of a

 

change in the individual's residence, as provided in section 5314.

 

     (ee) To have the guardian secure services to restore the

 

individual to the best possible state of mental and physical well-

 

being so that the individual can return to self-management at the

 

earliest possible time, as provided in section 5314.

 

     (ff) To have the guardian take reasonable care of the

 


individual's clothing, furniture, vehicles, and other personal

 

effects, as provided in section 5314.

 

     (gg) To partially self-manage his or her property to encourage

 

self-reliance and independence, as provided in section 5316.

 

     (2) Within 7 days after being appointed, a guardian shall

 

inform the ward in writing of his or her rights enumerated in this

 

section. The guardian shall sign and date the advice of rights

 

notice. The ward shall sign and date an acknowledgement that the

 

ward has received the advice of rights notice. The signed advice of

 

rights notice and acknowledgement shall be filed with the court.

 

Within 180 days of the effective date of the amendatory act that

 

added this section, the state court administrative office and the

 

office of services to the aging created in section 5 of the older

 

Michiganians act, 1981 PA 180, MCL 400.585, shall promulgate a form

 

to be used to give the written notice under this section, which

 

shall include space for the court to include information on how to

 

contact the court or other relevant personnel with respect to the

 

rights enumerated in this section.

 

     Sec. 5314. Whenever 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. Except as limited

 

To the extent a guardian of a legally incapacitated individual is

 

granted powers by the court under section 5306, a legally

 

incapacitated individual's the guardian is responsible for the

 

ward's care, custody, and control, but is not liable to third

 

persons by reason 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, except as

 

modified to the extent granted by court order:

 

     (a) To the extent that it is consistent with the terms of an

 

order by a court of competent jurisdiction relating to the ward's

 

detention or commitment, the guardian is entitled to The custody of

 

the person of the guardian's ward and may the power to establish

 

the ward's place of residence within or without this state. A

 

ward's 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 must shall notify the court

 

within 14 days of a change in the ward's place of residence.

 

     (b) If entitled to custody of the ward, the guardian must 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 must 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) A guardian may 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.

 

     (d) If a conservator for the ward's estate is not appointed, a

 

guardian may 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 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.

 

     (e) 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 must shall 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) Services received by the ward.

 

     (vii) A list of the guardian's visits with, and activities on

 

behalf of, the ward.

 

     (viii) A recommendation as to the need for continued

 

guardianship.

 

     (f) If a conservator is appointed, the guardian shall 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.

 

     Sec. 5315. (1) A To the extent granted by the court under

 

section 5306, the guardian of an individual for whom a conservator

 

also is appointed controls the ward's custody and care and is

 

entitled to receive reasonable amounts for those services and for

 

room and board furnished to the ward as agreed upon between the

 

guardian and the conservator if the amounts agreed upon are

 

reasonable under the circumstances. The guardian may request the

 

conservator to expend the ward's estate by payment to a third

 

person or institution for the ward's care and maintenance.

 


     (2) If a ward dies while under guardianship and a conservator

 

has not been appointed for the ward's estate and if the guardian

 

has possession of money of the deceased ward, upon petition of the

 

guardian and with or without notice, the court may hear a claim for

 

burial expenses or any other claim as the court considers

 

advisable. Upon hearing the claim, the court may enter an order

 

allowing or disallowing the claim or a part of the claim and may

 

provide in the order of allowance that the claim or a part of it be

 

paid immediately if the payment can be made without injury or

 

serious inconvenience to the ward's estate.

 

     Sec. 5316. To encourage self-reliance and independence in

 

Except to the extent the court grants the guardian or conservator

 

of a legally incapacitated individual the power to control the

 

individual's money or property, the court may authorize the

 

individual to function may handle his or her money or property

 

without the consent or supervision of the individual's guardian or

 

conservator, in handling part of his or her money or property,

 

including authorizing the individual to maintain maintaining an

 

account with a financial institution. To the extent the individual

 

is authorized has the power to function autonomously, a person may

 

deal with the individual as though the individual is mentally

 

competent.

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