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.