Bill Text: MI SB0959 | 2009-2010 | 95th Legislature | Introduced

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Bill Title: Probate; guardians and conservators; process for expedited ex parte financial protection orders; provide for. Amends secs. 5404, 5405, 5406, 5407 & 5427 of 1998 PA 386 (MCL 700.5404 et seq.).

Spectrum: Moderate Partisan Bill (Republican 5-1)

Status: (Introduced - Dead) 2009-10-28 - Referred To Committee On Judiciary [SB0959 Detail]

Download: Michigan-2009-SB0959-Introduced.html

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SENATE BILL No. 959

 

 

October 28, 2009, Introduced by Senators GEORGE, BIRKHOLZ, BASHAM, KAHN, PAPPAGEORGE and HARDIMAN and referred to the Committee on Judiciary.

 

 

 

     A bill to amend 1998 PA 386, entitled

 

"Estates and protected individuals code,"

 

by amending sections 5404, 5405, 5406, 5407, and 5427 (MCL

 

700.5404, 700.5405, 700.5406, 700.5407, and 700.5427), section 5406

 

as amended by 2000 PA 464 and section 5407 as amended by 2009 PA

 

46.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 5404. (1) The One or more of the following may petition

 

for the appointment of a conservator or for another appropriate

 

protective order:

 

     (a) The individual to be protected. , a

 

     (b) A person who is interested in the individual's estate,

 

affairs, or welfare, including a parent, guardian, or custodian, or

 

a person who would be adversely affected by lack of effective

 

management of the individual's property and business affairs. may

 

petition for a conservator's appointment or for another appropriate

 

protective order.

 

     (c) If the petition is for an ex parte preliminary protective

 

order under section 5407(2)(a), a local law enforcement officer or

 

the director of the county office of the department of human

 

services.

 

     (2) The petition must set forth to the extent known the

 

petitioner's interest; the name, age, residence, and address of the

 

individual to be protected; the name and address of the guardian,

 

if any; the name and address of the nearest relative known to the

 

petitioner; a general statement of the individual's property known

 

to the petitioner with an estimate of the value of the property,

 

including compensation, insurance, a pension, or an allowance to

 

which the individual is entitled; and the reason why a

 

conservator's appointment or another protective order is necessary.

 

If a conservator's appointment is requested, the petition shall

 

also set forth the name and address of the person whose appointment

 

is sought and the basis of the claim to priority for appointment.

 

     (3) A petition under subsection (1)(c) shall contain a

 

statement that the petitioner has a good faith belief that there is

 

an immediate risk that the property of the individual to be

 

protected will be dissipated if a protective order is not issued

 

immediately without a hearing and without notice and state the

 

facts that support that belief.

 

     Sec. 5405. (1) On a petition for a conservator's appointment

 

or another protective order, the requirements for notice described

 

in section 5311 apply, subject to the following:

 

     (a) If the individual to be protected has disappeared or is

 

otherwise situated so as to make personal service of notice

 

impracticable, notice to the individual shall be given by mail or

 

publication as provided in section 1401.

 

     (b) If the individual to be protected is a minor, section

 

5213(1) also applies.

 

     (c) Service of notice of a petition under section 5404(1)(c)

 

is not required before entry of an order under section 5407(2)(a).

 

     (2) Notice of a hearing on a petition for an order after a

 

conservator's appointment or another protective order must be given

 

to the protected individual, a conservator of the protected

 

individual's estate, and any other person as ordered by the court

 

or as provided by court rule.

 

     (3) If an order is entered under section 5407(2)(a), notice of

 

the petition and entry of the order shall be given under subsection

 

(1).

 

     Sec. 5406. (1) Upon 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 the minor is 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 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 hearing. Unless the individual to be

 

protected has chosen 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) After entry of an order under section 5407(2)(a), a person

 

who could petition for the appointment of a conservator for the

 

protected individual may request a hearing. The court shall set a

 

date for and hold a hearing under this subsection within 14 days

 

after the request for a hearing.

 

     (4) (3) The court may utilize, as an additional visitor under

 

this section, 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.

 

     (5) (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).

 

     (6) (5) The individual to be protected is entitled to be

 

present at the a hearing held under this section 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 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 counsel for the individual so

 

requests.

 

     (7) (6) Any person may request for permission to participate

 

in the proceeding, and the court may grant the request, with or

 

without hearing, upon 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.

 

     (8) (7) After hearing, upon 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. 5407. (1) The court shall exercise the authority

 

conferred in this part to encourage the development of maximum

 

self-reliance and independence of a protected individual and shall

 

make protective orders only to the extent necessitated by the

 

protected individual's mental and adaptive limitations and other

 

conditions warranting the procedure. Accordingly, the court may

 

authorize a protected individual to function without the consent or

 

supervision of the individual's conservator in handling part of his

 

or her money or property, including authorizing the individual to

 

maintain an account with a financial institution. To the extent the

 

individual is authorized to function autonomously, a person may

 

deal with the individual as though the individual is mentally

 

competent.

 

     (2) The court has the following powers that may be exercised

 

directly or through a conservator in respect to a protected

 

individual's estate and business affairs:

 

     (a) On petition by an individual under section 5404(1)(c), if

 

the court determines that there is an immediate risk that the

 

property of the person to be protected will be dissipated if a

 

protective order is not issued immediately without a hearing and

 

notice to others, the power to enter a protective order to preserve

 

property of the individual to be protected without a hearing and

 

without notice to others.

 

     (b) (a) While a petition for a conservator's appointment or

 

another protective order is pending and after preliminary hearing

 

and without notice to others, the court has the power to preserve

 

and apply property of the individual to be protected as may be

 

required for the support of the individual or the individual's

 

dependents.

 

     (c) (b) After hearing and upon determining that a basis for an

 

appointment or other protective order exists with respect to a

 

minor without other disability, the court has all those powers over

 

the minor's estate and business affairs that are or may be

 

necessary for the best interests of the minor and members of the

 

minor's immediate family.

 

     (d) (c) After hearing and upon determining that a basis for an

 

appointment or other protective order exists with respect to an

 

individual for a reason other than minority, the court, for the

 

benefit of the individual and members of the individual's immediate

 

family, has all the powers over the estate and business affairs

 

that the individual could exercise if present and not under

 

disability, except the power to make a will. Those powers include,

 

but are not limited to, all of the following:

 

     (i) To make gifts.

 

     (ii) To convey or release a contingent or expectant interest in

 

property including marital property rights and a right of

 

survivorship incident to joint tenancy or tenancy by the entirety.

 

     (iii) To exercise or release a power held by the protected

 

individual as personal representative, custodian for a minor,

 

conservator, or donee of a power of appointment or, until April 1,

 

2010, a power held by the protected individual as trustee.

 

     (iv) To enter into a contract.

 

     (v) To create a revocable or irrevocable trust of estate

 

property that may extend beyond the disability or life of the

 

protected individual.

 

     (vi) To exercise an option of the protected individual to

 

purchase securities or other property.

 

     (vii) To exercise a right to elect an option and change a

 

beneficiary under an insurance or annuity policy and to surrender

 

the policy for its cash value.

 

     (viii) To exercise a right to an elective share in the estate of

 

the individual's deceased spouse.

 

     (ix) To renounce or disclaim an interest by testate or

 

intestate succession or by inter vivos transfer.

 

     (3) The court may exercise or direct the exercise of the

 

following powers only if satisfied, after the notice and hearing,

 

that it is in the protected individual's best interests and that

 

the individual either is incapable of consenting or has consented

 

to the proposed exercise of the power:

 

     (a) To exercise or release a power of appointment of which the

 

protected individual is donee.

 

     (b) To renounce or disclaim an interest.

 

     (c) To make a gift in trust or otherwise exceeding 20% of a

 

year's income of the estate.

 

     (d) To change a beneficiary under an insurance and annuity

 

policy.

 

     (4) A determination that a basis for a conservator's

 

appointment or another protective order exists has no effect on the

 

protected individual's capacity.

 

     Sec. 5427. Subject to the restrictions in section 5407(3), at

 

the time of appointment or later, the court may confer on a

 

conservator, in addition to the powers conferred by sections 5423

 

to 5426, any power that the court itself could exercise under

 

section 5407(2)(b) and (c) 5407(2)(c) and (d). At the time of

 

appointment or later, the court may limit the powers of a

 

conservator otherwise conferred by sections 5423 to 5426 or

 

previously conferred by the court, and may at any time remove or

 

modify a limitation. If the court limits a power conferred on the

 

conservator by sections 5423 to 5426 or specifies, as provided in

 

section 5419(1), that title to some, but not all, of the protected

 

individual's property vests in the conservator, the limitation or

 

specification of property subject to the conservatorship shall be

 

endorsed upon the letters of appointment.