Bill Text: MI SB0503 | 2021-2022 | 101st Legislature | Introduced
Bill Title: Probate: guardians and conservators; duties of guardians, conservators, and guardian ad litem; modify. Amends secs. 5305, 5314, 5406, 5417 & 5418 of 1998 PA 386 (MCL 700.5305 et seq.) & adds secs. 5314a, 5314b & 5314c. TIE BAR WITH: SB 0505'21, SB 0504'21, SB 0506'21
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2021-06-03 - Referred To Committee On Judiciary And Public Safety [SB0503 Detail]
Download: Michigan-2021-SB0503-Introduced.html
SENATE BILL NO. 503
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending sections 5305, 5314, 5406, 5417, and 5418 (MCL 700.5305, 700.5314, 700.5406, 700.5417, and 700.5418), section 5305 as amended by 2017 PA 155, section 5314 as amended by 2018 PA 594, section 5406 as amended by 2000 PA 464, and sections 5417 and 5418 as amended by 2000 PA 312, and by adding sections 5314a, 5314b, and 5314c.
the people of the state of michigan enact:
Sec. 5305. (1) The Subject to subsection (2), the duties of a guardian ad litem appointed for an individual alleged to be incapacitated include all of the following:
(a) Personally visiting the individual.
(b) Explaining to the individual the nature, purpose, and legal effects of a guardian's appointment.
(c) Explaining to the individual the hearing procedure and the individual's rights in the hearing procedure, including, but not limited to, all of the following:
(i) The right to contest the petition.
(ii) The right to request limits on the guardian's powers, including a limitation on the guardian's power to execute on behalf of the ward either of the following:
(A) A do-not-resuscitate order.
(B) A physician orders for scope of treatment form.
(iii) The right to object to a particular person being appointed guardian.
(iv) The right to be present at the hearing.
(v) The right to be represented by legal counsel.
(vi) The right to have legal counsel appointed for the individual if he or she is unable to afford legal counsel.
(d) Informing the individual that if a guardian is appointed, the guardian may have the power to execute a do-not-resuscitate order on behalf of the individual and, if meaningful communication is possible, discern if the individual objects to having a do-not-resuscitate order executed on his or her behalf.
(e) Informing the individual that if a guardian is appointed, the guardian may have the power to execute a physician orders for scope of treatment form on behalf of the individual and, if meaningful communication is possible, discern if the individual objects to having a physician orders for scope of treatment form executed on his or her behalf.
(f) Informing the individual of the name of each person known to be seeking appointment as guardian.
(g) Asking the individual and the petitioner about the amount of cash and property readily convertible into cash that is in the individual's estate.
(h) Making determinations, and informing the court of those determinations, on all of the following:
(i) Whether there are 1 or more appropriate alternatives to the appointment of a full guardian or whether 1 or more actions should be taken in addition to the appointment of a guardian. Before informing the court of his or her determination under this subparagraph, the guardian ad litem shall consider the appropriateness of at least each of the following as alternatives or additional actions:
(A) Appointment of a limited guardian, including the specific powers and limitation on those powers the guardian ad litem believes appropriate.
(B) Appointment of a conservator or another protective order under part 4 of this article. In the report informing the court of the determinations under this subdivision, the guardian ad litem shall include an estimate of the amount of cash and property readily convertible into cash that is in the individual's estate.
(C) Execution of a patient advocate designation, do-not-resuscitate order, physician orders for scope of treatment form, or durable power of attorney with or without limitations on purpose, authority, or duration.
(ii) Whether a disagreement or dispute related to the guardianship petition might be resolved through court ordered mediation.
(iii) Whether the individual wishes to be present at the hearing.
(iv) Whether the individual wishes to contest the petition.
(v) Whether the individual wishes limits placed on the guardian's powers.
(vi) Whether the individual objects to having a do-not-resuscitate order executed on his or her behalf.
(vii) Whether the individual objects to having a physician orders for scope of treatment form executed on his or her behalf.
(viii) Whether the individual objects to a particular person being appointed guardian.
(2) The court shall not order compensation of the guardian ad litem unless the guardian ad litem states on the record or in the guardian ad litem's written report that he or she has complied with subsection (1).
(3) If the individual alleged to be incapacitated wishes to contest the petition, to have limits placed on the guardian's powers, or to object to a particular person being appointed guardian and if legal counsel has not been secured, the court shall appoint legal counsel to represent the individual alleged to be incapacitated. If the individual alleged to be incapacitated is indigent, this state shall bear the expense of legal counsel.
(4) If the individual alleged to be incapacitated requests legal counsel or the guardian ad litem determines it is in the individual's best interest to have legal counsel, and if legal counsel has not been secured, the court shall appoint legal counsel. If the individual alleged to be incapacitated is indigent, this state shall bear the expense of legal counsel.
(5) If the individual alleged to be incapacitated has legal counsel appointed under subsection (3) or (4), the appointment of a guardian ad litem terminates.
(a) Impartially gather information as provided by law.
(b) Seek information from the individual and, if communication is possible, communicate in a manner the individual is best able to understand. If communication is not possible or there is a barrier to communication, the guardian ad litem must note that in the report under subsection (3).
(c) Interview the individual in person at the individual's location and out of the presence of any interested person.
(d) Advise the individual that the guardian ad litem does not represent the individual as an attorney and that no attorney-client relationship has been created.
(e) Identify whether the individual wishes to be present at the hearing. If the allegedly incapacitated individual does not wish to be present at the hearing, the guardian ad litem shall identify the reasons why the individual does not wish to be present.
(f) Identify any barrier to attending hearings at the place where court is held or otherwise fully participating in the hearing, including the need for assistive technology, transportation, or other support. If the allegedly incapacitated individual wishes to attend, the guardian ad litem must identify whether the individual has identified a plan for how the individual will attend.
(g) Identify whether the individual plans to retain legal counsel or wants appointed legal counsel. If the allegedly incapacitated individual does not plan to retain legal counsel or request appointed legal counsel, the guardian ad litem must make a recommendation as to whether legal counsel should be appointed.
(h) Identify whether a disagreement or dispute related to the petition might be resolved through court-ordered mediation.
(2) The duties of a guardian ad litem appointed for an individual alleged to be incapacitated or a legally incapacitated individual include all of the following, as applicable:
(a) Explain to the individual the nature, purpose, and legal effects of a guardian's appointment.
(b) Explain who has filed the petition and who, if anyone, has been nominated as guardian.
(c) Explain to the individual the hearing procedure and the individual's rights in the hearing procedure, as identified in section 5306a, including, but not limited to, the following:
(i) The right to contest the petition, in whole or in part.
(ii) The right to request limits on the guardian's powers.
(iii) The right to be present at the hearing. If the individual is unable to attend the hearing at the location court proceedings typically are held, the guardian ad litem shall inform the individual of his or her right for the hearing at another location.
(iv) The right to request a reasonable accommodation to allow the individual to participate as fully as possible at the hearing, including with assistive technology or other support.
(v) The right to be represented by legal counsel of the individual's choice. If the individual is unable to secure legal counsel of his or her choice, the right to have legal counsel appointed by the court.
(vi) The right to request an independent medical evaluation.
(d) Explain to the individual that if a guardian is appointed, the guardian may have the power to take certain actions on behalf of the individual. A guardian ad litem must inform the individual that a guardian may have any of the following powers and, if meaningful communication is possible, discern if the individual objects to a guardian having any of the following powers:
(i) Executing a do-not-resuscitate order.
(ii) Executing a physician orders for scope of treatment form.
(iii) Consenting to any medical treatment.
(iv) Consenting to placement decisions, including moving the individual to a nursing facility or adult foster care home.
(v) Choosing whether the individual can marry or divorce.
(vi) Handling any financial and property matters, including the sale or disposal of personal property and the maintenance of real property. The guardian ad litem shall also inquire as to whether there are any items of special or sentimental value that the individual would not want sold or otherwise disposed of, such as family photos, collections, personal correspondence, or pets, as well as the location of those items.
(e) Identify whether the individual objects to the particular person proposed as guardian, if any.
(f) If a guardian were to be appointed, identify a list of whom the individual would want to serve, in order of preference.
(g) If a guardian were to be appointed, identify whom the individual would not want to serve.
(3) A guardian ad litem appointed for an individual alleged to be incapacitated or a legally incapacitated individual shall file a written report with the court and in the form, as required by the state court administrative office.
(4) If an individual who is subject to an initial petition under this part or petition to modify under this part contests the petition, the guardian ad litem's written report required under subsection (3) must include only the following:
(a) That the individual contests the petition.
(b) Whether the individual has retained legal counsel or wishes for legal counsel to be appointed.
(c) Whether the individual has any barriers to attending court at the place where it is usually held.
(5) If an individual who is subject to an initial petition under this part or petition to modify under this part does not contest the petition, the guardian ad litem's report required under subsection (3) must include only the following:
(a) The date and time the guardian ad litem met with the individual.
(b) The length of time the guardian ad litem met with the individual.
(c) The location where the guardian ad litem met with the individual.
(d) Whether the guardian ad litem was able to meaningfully communicate with the individual and any barriers to communication.
(e) Who, if anyone, was present for the interview besides the individual.
(f) Whether the individual wishes to be present at the hearing. If the individual wishes to be present at the hearing but has a barrier to fully participating, the guardian ad litem must include in the written report whether the barrier can be resolved by moving the location of the hearing or using assistive technology, or both, or other support.
(g) Whether the individual has identified a plan for how the individual will attend.
(h) Whether the individual plans to retain legal counsel or has requested appointed legal counsel. If the individual has not indicated he or she wishes to be represented by legal counsel, the guardian ad litem shall include in the written report a recommendation as to whether legal counsel should be appointed to represent the individual.
(i) Whether the individual has any of the following:
(A) A power of attorney with or without limitations on purpose, authority, or time period.
(B) A patient advocate designation.
(C) A physician orders for scope of treatment form.
(D) A benefits payee, trustee, or other fiduciary.
(j) Whether a disagreement or dispute related to the petition might be resolved through court-ordered mediation.
(k) Whether the appointment of a visitor with appropriate knowledge, training, and education such as a social worker, mental health professional, or medical professional could provide the court with the information on whether alternatives to guardianship or a limited guardianship is appropriate.
(l) If a guardian were appointed, who the individual would want to serve in order of preference.
(m) If a guardian were appointed, who the individual would not want to serve.
(n) An estimate of the amount of cash and property readily convertible into cash that is in the individual's estate.
(6) If a guardian ad litem is appointed for any purpose other than an initial petition under this part, petition to terminate under this part, or petition to modify under this part, the guardian ad litem must provide a written report to the court that includes, at a minimum, the information described in subsection (4) or (5), as applicable, and any other information required by law. A special limited guardian ad litem appointed under subsection (13) is not required to provide a written report unless ordered to do so by the court under subsection (13).
(7) A guardian ad litem shall file the report required under subsection (3) with the court and serve it on all interested persons at least 7 days before the date of the hearing. The court may order the report to be filed and served less than 7 days before the hearing only if the petition is made on an emergency basis under section 5312.
(8) The court shall not consider evidence included in a report or the testimony of a guardian ad litem that is not otherwise admissible under the Michigan Rules of Evidence. If the guardian ad litem does not personally appear for the hearing, the report must not be admitted into evidence.
(9) The court shall not order compensation of the guardian ad litem unless the guardian ad litem states in the guardian ad litem's written report that the guardian ad litem complied with subsections (2) to (7), as applicable.
(10) The court shall not appoint a person that was previously appointed as guardian ad litem as legal counsel for the individual if the guardian ad litem's report under subsection (3) or recommendation to the court conflicts with the wishes of the individual.
(11) If an individual who is subject to a petition under this part has not already secured legal counsel, the court shall appoint legal counsel if any of the following apply:
(a) The individual requests legal counsel.
(b) The individual objects to any part of the petition for guardianship or potential authority of a guardian.
(c) The guardian ad litem determines it is in the individual's best interest to have legal counsel if legal counsel has not been secured. If the individual who is subject to the petition is indigent, this state shall bear the expense of appointed legal counsel under this subsection.
(12) If an individual who is subject to a petition under this part has legal counsel appointed or retained, the appointment of a guardian ad litem terminates. The report of the guardian ad litem must not be admitted into evidence after the appearance or appointment of legal counsel for the individual who is subject to the petition.
(13) After appointment or retention of legal counsel for the individual who is subject to the petition under this part, the court may, for good cause shown, appoint a special limited guardian ad litem to provide information on a narrowly defined issue that will likely otherwise be inadequately addressed. A special guardian ad litem is exempt from subsections (2) to (6). The court may order that a special limited guardian ad litem appointed under this subsection provide a written report. The report under this subsection must contain the information the court considers necessary to adequately address the issue leading to the appointment of the special limited guardian ad litem. A special limited guardian ad litem shall not communicate directly with the individual who is subject to the petition and must instead communicate through legal counsel to the individual who is subject to the petition, unless legal counsel otherwise gives consent.
(14) An individual alleged to be incapacitated has the right to retain legal counsel of his or her choice at any stage, regardless of findings regarding his or her capacity. Retained legal counsel shall file a substitution of legal counsel or a motion to substitute if legal counsel has already been appointed.
Sec. 5314. If 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. To the extent a guardian of a legally incapacitated individual is granted powers by the court under section 5306, the guardian is responsible for the ward's care, custody, and control, but is not liable to third persons because 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, to the extent granted by court order:
(a) The Subject to section 5314c, the custody of the person of the ward and the power to establish the ward's place of residence in or outside this state. 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 shall notify the court within 14 days of a change in the ward's place of residence or a change in the guardian's place of residence.If the guardian is a professional guardian, the professional guardian shall visit the ward as required under this part.
(b) If entitled to custody of the ward, the 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 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) The power to give the consent or approval that is necessary to enable the ward to receive medical, mental health, or other professional care, counsel, treatment, or service. However, a guardian does not have and shall not exercise the power to give the consent to or approval for inpatient hospitalization unless the court expressly grants the power in its order. If the ward objects or actively refuses mental health treatment, the guardian or any other interested person must follow the procedures provided in chapter 4 of the mental health code, 1974 PA 258, MCL 330.1400 to 330.1490, to petition the court for an order to provide involuntary mental health treatment. The power of a guardian to execute a do-not-resuscitate order under subdivision (d), execute a nonopioid directive form under subdivision (f), or execute a physician orders for scope of treatment form under subdivision (g) does not affect or limit the power of a guardian to consent to a physician's order to withhold resuscitative measures in a hospital. As used in this subdivision, "involuntary mental health treatment" means that term as defined in section 400 of the mental health code, 1974 PA 258, MCL 330.1400.
(d) The power to execute, reaffirm, and revoke a do-not-resuscitate order on behalf of a ward. However, a guardian shall not execute a do-not-resuscitate order unless the guardian does all of the following:
(i) Not more than 14 days before executing the do-not-resuscitate order, visits the ward and, if meaningful communication is possible, consults with the ward about executing the do-not-resuscitate order.
(ii) Consults directly with the ward's attending physician as to the specific medical indications that warrant the do-not-resuscitate order.
(e) If a guardian executes a do-not-resuscitate order under subdivision (d), not less than annually after the do-not-resuscitate order is first executed, the duty to do all of the following:
(i) Visit the ward and, if meaningful communication is possible, consult with the ward about reaffirming the do-not-resuscitate order.
(ii) Consult directly with the ward's attending physician as to specific medical indications that may warrant reaffirming the do-not-resuscitate order.
(f) The power to execute, reaffirm, and revoke a nonopioid directive form on behalf of a ward.
(g) The power to execute, reaffirm, and revoke a physician orders for scope of treatment form on behalf of a ward. However, a guardian shall not execute a physician orders for scope of treatment form unless the guardian does all of the following:
(i) Not more than 14 days before executing the physician orders for scope of treatment form, visits the ward and, if meaningful communication is possible, consults with the ward about executing the physician orders for scope of treatment form.
(ii) Consults directly with the ward's attending physician as to the specific medical indications that warrant the physician orders for scope of treatment form.
(h) If a guardian executes a physician orders for scope of treatment form under subdivision (f), (g), not less than annually after the physician orders for scope of treatment is first executed, the duty to do all of the following:
(i) Visit the ward and, if meaningful communication is possible, consult with the ward about reaffirming the physician orders for scope of treatment form.
(ii) Consult directly with the ward's attending physician as to specific medical indications that may warrant reaffirming the physician orders for scope of treatment form.
(i) If a conservator for the ward's estate is not appointed, the power to do any all of the following:
(i) Institute The power to 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 The power to 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 on 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.
(iii) The duties under sections 5314a and 5314b.
(j) The 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 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, including mental health treatment, received by the ward.
(vi) Whether the guardian has executed, reaffirmed, or revoked a do-not-resuscitate order on behalf of the ward during the past year.
(vii) Whether the guardian has executed, reaffirmed, or revoked a nonopioid directive form on behalf of the ward during the past year.
(viii) Whether the guardian has executed, reaffirmed, or revoked a physician orders for scope of treatment form on behalf of the ward during the past year.
(ix) Services received by the ward.
(x) A list of the guardian's visits with, and activities on behalf of, the ward.
(xi) A recommendation as to the need for continued guardianship.
(k) If a conservator is appointed, the 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. 5314a. (1) If a conservator has not been appointed for the ward, within 56 days after appointment or within another time period specified by court rule, a guardian with any power over the property of the ward under section 5314 shall prepare and file with the appointing court a complete inventory of the estate subject to the guardianship together with an oath or affirmation that the inventory is believed to be complete and accurate so far as information permits. The guardian shall file, along with the inventory, account statements that reflect the value of depository and investment accounts dated within 30 days after the inventory's date. The guardian shall provide a copy of the inventory to the ward if the ward can be located and to interested persons as specified in the Michigan court rules.
(2) The guardian must keep suitable records of the administration and provide those records on the request of an interested person.
(3) The guardian shall identify on the inventory under subsection (1) any items of special personal or sentimental value, including, but not limited to, family heirlooms, photo albums, or collections. To the extent meaningful communication permits, the guardian must make an inquiry with the ward as to what items the ward identifies as having special personal or sentimental value. The items must include items identified by a guardian ad litem under section 5305. If the guardian is unable to locate an item identified as having special personal or sentimental value at the time of filing the inventory, the guardian must state that on the inventory.
(4) The guardian shall list on the inventory under subsection (1) any merchandise, funeral services, cemetery services, or prepaid contracts for which the legally incapacitated individual or guardian is the contract buyer or contract beneficiary under the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235. If the guardianship estate includes an asset described in this subsection, the guardian must file, with the inventory, all of the following:
(a) A copy of any prepaid contract under the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235.
(b) Proof that payments made under a prepaid contract are held in escrow or under a trust agreement in compliance with the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235.
(c) The most recent escrow statement issued concerning the prepaid contract.
(d) Proof of any assignments of life policies or annuity contracts made to purchase merchandise, funeral services, or cemetery services under the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235.
(5) The inventory under subsection (1) must list property with reasonable detail and the type and amount of any encumbrance.
(6) The inventory under subsection (1) must be served on all interested persons. Any interested person may file an objection with the court to the inventory and serve it on all interested persons. The court shall set the matter for hearing.
Sec. 5314b. (1) If a conservator has not been appointed for the ward, the guardian shall account to the court for administration of the ward's estate not less than annually unless the court directs otherwise, on resignation or removal, and at other times as the court directs. The guardian must file, along with the account, account statements that reflect the value of depository and investment accounts dated within 30 days after the inventory's date and receipts, invoices, or other documentation for expenses in excess of $1,000.00. The account must be in the form as provided by the state court administrative office, or substantially similar. The account must detail assets including those identified in section 5314a, debts, gross income, and expenses.
(2) Within 56 days after termination of the ward's guardianship, a guardian with any authority over property of the formerly legally incapacitated individual shall account to the court or to the formerly legally incapacitated individual or that formerly legally incapacitated individual's successors. Subject to appeal or vacation within the time permitted, an order after notice and hearing allowing an intermediate account of a guardian adjudicates as to liabilities concerning the matters considered in connection with the accounts, and an order, after notice and hearing, allowing a final account adjudicates as to all previously unsettled liabilities of the guardian to the formerly legally incapacitated individual or the formerly legally incapacitated individual's successors relating to the guardianship. In connection with any account, the court may require a guardian to submit to a physical check of the estate in any manner the court specifies.
(3) In the account required under subsection (1) or (2), the guardian shall provide information on the status of any items identified in section 5314a. If the guardian has disposed of or sold any of the items described in section 5314a, the guardian must describe on the account how the guardian fulfilled the guardian's duties under section 5314a.
(4) If the individual's estate includes any merchandise, funeral services, cemetery services, or prepaid contracts for which the individual or guardian is the contract buyer or contract beneficiary under the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235, the guardian must file all of the following, with the account under subsection (1) or (2):
(a) A copy of any prepaid contract under the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235.
(b) Proof that payments made under a prepaid contract are held in escrow or under a trust agreement in compliance with the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235.
(c) The most recent escrow statement issued concerning the prepaid contract.
(d) Proof of any assignments of life policies or annuity contracts made to purchase merchandise, funeral services, or cemetery services under the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235.
(5) The guardian shall file a copy of an account under subsection (1) or (2), as applicable, and account statements with the court and serve on all interested persons. Within 28 days after serving the account and account statements under this subsection, an interested person may file an objection to the account with the court and serve the objection on all interested persons. If an interested person objects, the court shall set the matter for hearing. If the ward objects to an account filed under this section, the court must appoint a guardian ad litem to visit the ward in the same manner as specified in section 5305. The court shall appoint legal counsel to represent the ward if any of the following apply:
(a) The ward requests legal counsel.
(b) The guardian ad litem believes that appointment of legal counsel is in the best interest of the ward.
(c) The court otherwise believes it is necessary to protect the interest of the ward.
(6) On receipt of an annual account under subsection (1), the court shall set the matter for hearing unless both of the following apply:
(a) No objection to the annual account has been filed within 28 days after the annual account is served on interested persons.
(b) The probate judge, probate register, or deputy probate register makes written findings that all of the following apply:
(i) The account includes sufficient documentation that the estate's assets are to the extent possible correctly titled to the guardian in its fiduciary capacity if necessary.
(ii) The guardian has filed a copy of account statements that reflect the value of depository and investment accounts dated within 30 days after the end of the accounting period.
(iii) The guardian has filed documentation for expenses over $1,000.00.
(iv) Fees and costs are reasonable and should be allowed.
(v) On the face of the filing it appears to meet the requirements of subsections (1), (3), and (4).
(vi) The guardian properly filed and served the account and required documentation on all interested persons.
Sec. 5314c. (1) The guardian shall maintain a legally incapacitated individual in the legally incapacitated individual's permanent residence if possible and consistent with the well-being and preferences of the legally incapacitated individual. If a legally incapacitated individual is removed from his or her permanent residence temporarily for any reason, the guardian shall make all reasonable efforts to return the legally incapacitated individual to his or her permanent residence at the earliest opportunity consistent with the legally incapacitated individual's wishes. Temporary removal of the legally incapacitated individual from his or her permanent residence for the purpose of receiving health care or supervision, for engaging in family or social activities, or for other reasons including the well-being or convenience of the legally incapacitated individual does not relieve the guardian of the obligations set forth in this section regarding permanent removal from the permanent residence. A guardian shall not primarily consider the guardian's own convenience or benefit when making a decision to remove the legally incapacitated individual from the legally incapacitated individual's permanent residence or selecting a new residence for the legally incapacitated individual.
(2) A guardian shall explore reasonably available and affordable supports and services that could enable the legally incapacitated individual to remain in his or her permanent residence.
(3) If a guardian proposes to move the legally incapacitated individual from his or her permanent residence, the guardian shall attempt to consult with the legally incapacitated individual and honor the legally incapacitated individual's preference to the greatest extent possible.
(4) If a person petitioning for guardianship under section 5303 or a guardian that has been appointed under section 5306 believes that it is necessary for the well-being of the alleged incapacitated individual or legally incapacitated individual, as applicable, to move the individual permanently from his or her permanent residence, the petitioner may seek court approval to do so by filing a separate petition for authority to move the individual. The separate petition must include all of the following information:
(a) The individual's current permanent residence.
(b) The proposed new residence.
(c) The reason for the proposed move.
(d) Whether the move is to a more or less restrictive setting.
(e) The efforts made or resources explored to enable the individual to remain in his or her current permanent residence.
(f) Whether the guardian has engaged in meaningful communication with the individual about the proposed move.
(g) Whether the individual objects to or supports the proposed move.
(5) If a petition for removal from the permanent residence has been filed under subsection (4), the guardian ad litem appointed for the alleged incapacitated individual or legally incapacitated individual, as applicable, shall, in addition to the other duties set forth in section 5305, do all of the following:
(a) Advise the individual that a petition has been filed to move the individual from his or her permanent residence to the new residence identified in the petition.
(b) Explain that if the court grants the petition to move the individual, the guardian will have the authority to change the individual's permanent residence to the location specified in the petition.
(c) Ascertain, if possible, the wishes of the individual to remain in his or her permanent residence.
(d) Include a summary of the discussion in the guardian ad litem's written report.
(6) If the alleged incapacitated individual or legally incapacitated individual does not already have legal counsel, the court shall appoint legal counsel if the individual files an objection to the petition for authority to move the individual from his or her permanent residence under subsection (4) or if the guardian ad litem's report under subsection (5) states that the individual objects to being removed from his or her permanent residence.
(7) If the court grants the petition for a finding of incapacity and appointment of a guardian under section 5303, the court may also grant the separate petition for authority to move the legally incapacitated individual under subsection (4) if, after due consideration and opportunity for testimony on the matter, it determines by clear and convincing evidence that moving the legally incapacitated individual from the permanent residence to the residence identified in the petition is 1 or more of the following:
(a) Necessary to protect the individual's physical health, safety, or welfare.
(b) Consistent with the individual's wishes.
(8) If the court does not grant the separate petition to move the legally incapacitated individual under section (4) at the hearing where the court appoints the guardian under section 5306, the guardian shall not permanently remove the legally incapacitated individual, except as otherwise provided in this section, unless the guardian files a subsequent separate petition under section (4) and the court grants that petition.
(9) If the guardian determines that failure to move the legally incapacitated individual from his or her permanent residence more promptly is likely to be detrimental to the legally incapacitated individual's physical health, safety, or welfare, the guardian may file an emergency ex parte motion before any move and explain the urgency of the circumstances that necessitate a more immediate order. The guardians shall provide affidavits or ex parte testimony in support of the motion. The court shall grant the motion if the court determines by clear and convincing evidence that delaying the change in the permanent residence is likely to result in substantial harm to the legally incapacitated individual's physical health, safety, or welfare. If the ex parte motion is granted, the court shall hold a hearing within 7 days after the order to determine whether the move must be made permanent unless or until further order of the court. The court shall appoint a guardian ad litem under subsection (5). The guardian ad litem must file and serve his or her report by a date and time ordered by the court that is before the hearing.
(10) If the legally incapacitated individual must leave the permanent residence because the residence becomes permanently unavailable as the result of a facility closure, removal of the property from the rental market, irreparable damage to the permanent residence, or other circumstances, the guardian shall provide at least 14 days' prior written notice to the legally incapacitated individual if possible under the circumstances or, if less time is available before the legally incapacitated individual must move, notice at the earliest opportunity. The guardian shall also attempt to consult with the legally incapacitated individual and honor the legally incapacitated individual's preferences to the greatest extent possible regarding where the legally incapacitated individual would like to move. The guardian shall provide written notice to the court within 14 days after the move explaining why the permanent residence is no longer available, whether the guardian attempted to consult with the legally incapacitated individual about where the legally incapacitated individual wanted to move, whether the guardian honored the legally incapacitated individual's preferences regarding where he or she wanted to move, the address of the new residence, the type of residence, and how the new residence will meet the legally incapacitated individual's needs. If the legally incapacitated individual's residence becomes permanently unavailable, the guardian is not required to file a petition under subsection (4) and the court is not required to appoint a guardian ad litem or legal counsel or hold a hearing.
(11) The guardian shall not move the legally incapacitated individual out of state without order of the court. If the guardian petitions to move the legally incapacitated individual out of state, a guardian ad litem must be appointed and the court shall schedule a hearing regardless of whether the individual files objections or expresses dissatisfaction with the proposed move. If the legally incapacitated individual files objections or expresses dissatisfaction with the proposed move, the court shall appoint legal counsel if the legally incapacitated individual is not already represented by legal counsel.
(12) In exercising the guardian's power to establish the legally incapacitated individual's place of residence, the guardian shall do both of the following:
(a) Select a residential setting the guardian believes the legally incapacitated individual would select if the legally incapacitated individual were able. If the guardian does not know and cannot reasonably determine what setting the legally incapacitated individual would likely select, or the guardian reasonably believes the decision the legally incapacitated individual would make would unreasonably harm or endanger the welfare or personal or financial interests of the legally incapacitated individual, the guardian shall choose a residential setting that is consistent with the legally incapacitated individual's best interest.
(b) Give priority to a residential setting in a location that will allow the legally incapacitated individual to interact with persons and participate in activities important to the legally incapacitated individual and meet the legally incapacitated individual's needs in the least restrictive manner reasonably feasible.
(13) If removal from the permanent residence necessitates the sale, transfer, or disposal of real or sentimental personal property and if meaningful communication is possible, the guardian shall consult with the legally incapacitated individual before taking any action to dispose of the property. A guardian shall make all reasonable efforts to identify and honor the legally incapacitated individual's wishes to preserve sentimental personal property in the overall context of the legally incapacitated individual's estate, including items identified in the inventory under section 5314a and annual accounts under section 5314b, and shall take reasonable steps to safeguard that personal property. The court may remove a guardian that fails to comply with this subsection.
(14) As used in this section, "permanent residence" means any of the following:
(a) The location the allegedly incapacitated individual or legally incapacitated individual uses as a permanent address, in which most of the individual's possessions are maintained.
(b) The location the allegedly incapacitated individual or legally incapacitated individual considers to be his or her home.
Sec. 5406. (1) Upon On receipt of a petition for a conservator's appointment or another protective order because of minority, the court shall set a date for hearing. If, at any time in the proceeding, the court determines that the minor's interests are or may be inadequately represented, the court may appoint an attorney to represent the minor, giving consideration to the minor's choice if 14 years of age or older. An attorney appointed by the court to represent a minor has the powers and duties of a guardian ad litem.
(2) Upon On receipt of a petition for a conservator's appointment or another protective order for a reason other than minority, the court shall set a date for initial hearing. Unless the individual to be protected has chosen legal counsel, or is mentally competent but aged or physically infirm, the court shall appoint a guardian ad litem. to represent the person in the proceeding. If the alleged disability is mental illness, mental deficiency, physical illness or disability, chronic use of drugs, or chronic intoxication, the court may direct that the individual alleged to need protection be examined by a physician or mental health professional appointed by the court, preferably a physician or mental health professional who is not connected with an institution in which the individual is a patient or is detained. The individual alleged to need protection has the right to secure an independent evaluation at his or her own expense. The court may send a visitor to interview the individual to be protected. The visitor may be a guardian ad litem or a court officer or employee.
(3) The court may utilize, as an additional visitor, the service of a public or charitable agency to evaluate the condition of the individual to be protected and make appropriate recommendations to the court.
(4) A guardian ad litem, physician, mental health professional, or visitor appointed under this section who meets with, examines, or evaluates an individual who is the subject of a petition in a protective proceeding shall do all of the following:
(a) Consider whether there is an appropriate alternative to a conservatorship.
(b) If a conservatorship is appropriate, consider the desirability of limiting the scope and duration of the conservator's authority.
(c) Report to the court based on the considerations required in subdivisions (a) and (b).
(5) Subject to subsection (6), the duties of a guardian ad litem appointed under subsection (2) for an individual alleged to need protection include all of the following:
(a) Impartially gather information as provided by law.
(b) Seek information from the individual and, if communication is possible, communicate in a manner the individual is best able to understand. If communication is not possible or there is a barrier to communication, the guardian ad litem must note that in the report.
(c) Interview the individual in person at the individual's location and out of the presence of any interested person.
(d) Advise the individual that the guardian ad litem does not represent the individual as an attorney and that no attorney-client relationship has been created.
(e) Identify whether the individual wishes to be present at the hearing. If the individual alleged to need protection does not wish to be present at the hearing, the guardian ad litem shall identify the reasons why the individual does not wish to be present.
(f) Identify any barrier to attending hearings at the place where court is held or otherwise fully participating in the hearing, including the need for assistive technology, transportation, or other support. If the individual alleged to need protection wishes to attend, the guardian ad litem must identify whether the individual has identified a plan for how the individual will attend.
(g) Identify whether the individual plans to retain legal counsel or wants appointed legal counsel. If the individual alleged to need protection does not plan to retain legal counsel or request appointed legal counsel, the guardian ad litem must make a recommendation as to whether legal counsel should be appointed.
(h) Identify whether a disagreement or dispute related to the petition might be resolved through court-ordered mediation.
(6) The duties of a guardian ad litem appointed for an individual alleged to need protection or a protected individual include all of the following, as applicable:
(a) Explain to the individual the nature, purpose, and legal effects of a conservator's appointment or issuance of a protective order.
(b) Explain who has filed the petition and who, if anyone, has been nominated as conservator, if applicable.
(c) Explain to the individual the hearing procedure and the individual's rights in the hearing procedure, including, but not limited to, the following:
(i) The right to contest the petition, in whole or in part.
(ii) The right to request limits on the conservator's powers.
(iii) The right to be present at the hearing. If the individual is unable to attend the hearing at the location court proceedings typically are held, the guardian ad litem shall inform the individual of his or her right to have the hearing at another location.
(iv) The right to request a reasonable accommodation to allow the individual to participate as fully as possible at the hearing, including with assistive technology or other support.
(v) The right to be represented by legal counsel of the individual's choice. If the individual is unable to secure legal counsel of his or her choice, the guardian ad litem shall explain to the individual that he or she has the right to have legal counsel appointed by the court.
(vi) The right to request an independent medical evaluation.
(d) Explain to the individual that if a conservator is appointed, the conservator may have the power to take certain actions on behalf of the individual. A guardian ad litem must inform the individual that a conservator may have any of the powers described in section 5407 and, if meaningful communication is possible, discern if the individual objects to a conservator having any of those powers.
(e) Identify whether the individual objects to the particular person proposed as conservator, if any.
(f) If a conservator were to be appointed, identify a list of who the individual would want to serve, in order of preference.
(g) If a conservator were to be appointed, identify who the individual would not want to serve.
(7) A guardian ad litem appointed for an individual alleged to need protection or a protected individual shall file a written report with the court in the form required by the state court administrative office.
(8) If an individual who is subject to an initial petition under this part or petition to modify under this part contests the petition, the guardian ad litem's written report required under subsection (7) must include only the following:
(a) That the individual contests the petition.
(b) Whether the individual has retained legal counsel or wishes for legal counsel to be appointed.
(c) Whether the individual has any barriers to attending court at the place where it is usually held.
(9) If an individual who is subject to an initial petition under this part or petition to modify under this part does not contest the petition, the guardian ad litem's written report required under subsection (7) must include only the following:
(a) The date and time the guardian ad litem met with the individual.
(b) The length of time the guardian ad litem met with the individual.
(c) The location where the guardian ad litem met with the individual.
(d) Whether the guardian ad litem was able to meaningfully communicate with the individual and any barriers to communication.
(e) Who, if anyone, was present for the interview besides the individual.
(f) Whether the individual wishes to be present at the hearing. If the individual wishes to be present at the hearing but has a barrier to fully participating, the guardian ad litem must include in the written report whether the barrier can be resolved by moving the location of the hearing or using assistive technology, or both, or other support.
(g) Whether the individual has identified a plan for how the individual will attend.
(h) Whether the individual plans to retain legal counsel or has requested appointed legal counsel. If the individual has not indicated he or she wishes to be represented by legal counsel, the guardian ad litem shall include in the written report a recommendation as to whether legal counsel should be appointed to represent the individual.
(i) Whether the individual has any of the following:
(A) A power of attorney with or without limitations on purpose, authority, or time period.
(B) A patient advocate designation.
(C) A physician orders for scope of treatment form.
(D) A benefits payee, trustee, or other fiduciary.
(j) Whether a disagreement or dispute related to the conservatorship petition might be resolved through court-ordered mediation.
(k) Whether the appointment of a visitor with appropriate knowledge, training, and education such as a social worker, mental health professional, or medical professional could provide the court with the information on whether alternatives to conservatorship or a limited conservatorship under section 5419(1) is appropriate.
(l) If a conservator were appointed, who the individual would want to serve in order of preference.
(m) If a conservator were appointed, who the individual would not want to serve.
(n) An estimate of the amount of cash and property readily convertible into cash that is in the individual's estate.
(10) If a guardian ad litem is appointed for any purpose other than an initial petition under this part, petition to terminate under this part, or petition to modify under this part, the guardian ad litem must provide a written report to the court that includes, at a minimum, the information described in subsection (5), (6), (8), or (9), as applicable, and any other information required by law. A special limited guardian ad litem appointed under subsection (16) is not required to provide a written report unless ordered to do so by the court.
(11) The court shall not consider evidence included in a report under subsection (7) or the testimony of a guardian ad litem that is not otherwise admissible under the Michigan Rules of Evidence. If the guardian ad litem does not personally appear for examination, the report must not be admitted into evidence.
(12) A guardian ad litem shall file any report required under this section with the court and serve the report on all interested persons at least 7 days before the hearing. The court shall not order compensation of the guardian ad litem unless the guardian ad litem states in the guardian ad litem's written report that the guardian ad litem complied with this subsection.
(13) The court shall not appoint a guardian ad litem as legal counsel for the individual if the guardian ad litem's report under subsection (7) or recommendation to the court conflicts with the wishes of the individual.
(14) If an individual who is subject to a petition under this part has not already secured legal counsel, the court shall appoint legal counsel if any of the following apply:
(a) The individual who is subject to the petition requests legal counsel.
(b) The individual who is subject to the petition objects to any part of the petition for conservatorship or potential authority of a conservator.
(c) The guardian ad litem determines it is in the best interest of the individual subject to the petition to have legal counsel and, if legal counsel has not been secured, the court shall appoint legal counsel. If the individual who is subject to the petition is indigent, this state shall bear the expense of appointed legal counsel.
(15) If an individual who is subject to a petition under this part has legal counsel appointed or retained, the appointment of a guardian ad litem terminates. The report of the guardian ad litem under subsection (7) must not be admitted into evidence after the appearance or appointment of legal counsel for the individual who is subject to the petition.
(16) After appointment or retention of legal counsel for the individual who is subject to the petition under this part, the court may, for good cause shown, appoint a special limited guardian ad litem to provide information on a narrowly defined issue that will likely otherwise be inadequately addressed. A special guardian ad litem is exempt from subsections (5) to (10). The court may order that a special limited guardian ad litem provide a written report. The report under this subsection must contain the information the court considers necessary to adequately address the issue leading to the appointment of the special limited guardian ad litem. A special limited guardian ad litem shall not communicate directly with the individual who is subject to the petition and must instead communicate through legal counsel to the individual who is subject to the petition, unless legal counsel otherwise gives consent.
(17) (5) The individual to be protected is entitled to be present at the hearing in person. If the individual wishes to be present at the hearing, all practical steps must be taken to ensure the individual's presence including, if necessary, moving the site of the hearing. The individual is entitled to be represented by legal counsel, to present evidence, to cross-examine witnesses, including a court-appointed physician or other qualified person and a visitor, and to trial by jury. The issue may be determined at a closed hearing or without a jury if the individual to be protected or legal counsel for the individual so requests.
(18) (6) Any person may request for permission to participate in the proceeding, and the court may grant the request, with or without hearing, upon on determining that the best interest of the individual to be protected will be served by granting the request. The court may attach appropriate conditions to the permission.
(19) (7) After hearing, upon on finding that a basis for a conservator's appointment or another protective order is established by clear and convincing evidence, the court shall make the appointment or other appropriate protective order.
Sec. 5417. (1) Within 56 days after appointment or within another time period specified by court rule, a conservator shall prepare and file with the appointing court a complete inventory of the estate subject to the conservatorship together with an oath or affirmation that the inventory is believed to be complete and accurate so far as information permits. The conservator shall file, along with the inventory, account statements that reflect the value of depository and investment accounts dated within 30 days after the inventory's date. The conservator shall provide a copy of the inventory to the protected individual if the individual can be located and is 14 years of age or older and to interested persons as specified in the Michigan court rules.
(2) The conservator must keep suitable records of the administration and exhibit those records on the request of an interested person.
(3) The conservator must identify on the inventory under subsection (1) any items of special personal or sentimental value, including, but not limited to, family heirlooms, photo albums, or collections. To the extent meaningful conversation permits, the conservator must make an inquiry with the protected individual as to what items the protected individual identifies as having special personal or sentimental value. If the conservator is unable to locate an item identified as having special personal or sentimental value at the time of filing the inventory under subsection (1), the conservator must state that on the inventory. A conservator shall make all reasonable efforts to identify and honor the protected individual's wishes to preserve items of special personal or sentimental value in the overall context of the protected individual's estate, including items identified in the inventory and annual accounts, and shall take reasonable steps to safeguard the property. The court may remove a conservator that fails to comply with this subsection.
(4) The inventory under subsection (1) must list any merchandise, funeral services, cemetery services, or prepaid contracts for which the protected individual or conservator is the contract buyer or contract beneficiary under the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235. If the conservatorship estate includes assets described in this subsection, the conservator must file all of the following with the inventory under subsection (1):
(a) A copy of any prepaid contract under the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235.
(b) Proof that payments made under a prepaid contract are held in escrow or under a trust agreement in compliance with the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235.
(c) The most recent escrow statement issued concerning the prepaid contract.
(d) Proof of any assignments of life policies or annuity contracts made to purchase merchandise, funeral services, or cemetery services under the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235, under subsection (1) must list property with reasonable detail and the type and amount of any encumbrance.
(5) The inventory under subsection (1) must be served on all interested persons. Any interested person may file an objection to the inventory with the court and serve the objection on all other interested persons. The court shall set the matter for hearing.
Sec. 5418. (1) A conservator shall account to the court for administration of the trust not less than annually unless the court directs otherwise, upon resignation or removal, and at other times as the court directs. On The conservator must file, along with the account under this subsection, account statements that reflect the value of depository and investment accounts dated within 30 days after the inventory's date and receipts, invoices, or other documentation for expenses in excess of $1,000.00. The account must be in the form as provided by the state court administrative office, or substantially similar. The account must detail assets including those identified in the inventory under section 5417, debts, gross income, and expenses.
(2) Within 56 days after the termination of the protected individual's minority or disability, a conservator shall account to the court or to the formerly protected individual or that individual's successors. Subject to appeal or vacation within the time permitted, an order, after notice and hearing, allowing an intermediate account of a conservator adjudicates as to liabilities concerning the matters considered in connection with the accounts, and an order, after notice and hearing, allowing a final account adjudicates as to all previously unsettled liabilities of the conservator to the protected individual or the protected individual's successors relating to the conservatorship. In connection with any account, the court may require a conservator to submit to a physical check of the estate to be made in any manner the court specifies.
(3) If the conservator has disposed of or sold any of the items, the conservator must describe on the account under subsection (1) how the conservator fulfilled the conservator's duties under section 5417(3).
(4) If the protected individual's estate includes any merchandise, funeral services, cemetery services, or prepaid contracts for which the protected individual or conservator is the contract buyer or contract beneficiary under the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235, the conservator must file all of the following with the account:
(a) A copy of any prepaid contract under the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235.
(b) Proof that payments made under a prepaid contract are held in escrow or under a trust agreement in compliance with the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235.
(c) The most recent escrow statement issued concerning the prepaid contract.
(d) Proof of any assignments of life policies or annuity contracts made to purchase merchandise, funeral services, or cemetery services under the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235.
(5) (2) The conservator shall provide a copy of an account to the protected individual if the individual can be located and is 14 years of age or older and to interested persons as specified in the Michigan court rules.
(6) If the protected individual objects to an account, the court must appoint a guardian ad litem to visit the protected individual in the same manner as specified in section 5406. The court must appoint legal counsel to represent the protected individual if any of the following are met:
(a) The protected individual requests legal counsel.
(b) The guardian ad litem believes that appointment of legal counsel is in the best interest of the protected individual.
(c) The court otherwise believes it is necessary to protect the interest of the protected individual.
Enacting section 1. This amendatory act does not take effect unless all of the following bills of the 101st Legislature are enacted into law:
(a) Senate Bill No. 504.
(b) Senate Bill No. 505.
(c) Senate Bill No. 506.
