Bill Text: MI HB4384 | 2013-2014 | 97th Legislature | Chaptered
Bill Title: Probate; guardians and conservators; guardian's authority to consent to a do-not-resuscitate order; clarify, and provide procedure. Amends secs. 1103, 5303, 5305 & 5314 of 1998 PA 386 (MCL 700.1103 et seq.). TIE BAR WITH: HB 4382'13
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2013-11-06 - Assigned Pa 157'13 With Immediate Effect [HB4384 Detail]
Download: Michigan-2013-HB4384-Chaptered.html
Act No. 157
Public Acts of 2013
Approved by the Governor
November 5, 2013
Filed with the Secretary of State
November 5, 2013
EFFECTIVE DATE: February 3, 2014
STATE OF MICHIGAN
97TH LEGISLATURE
REGULAR SESSION OF 2013
Introduced by Rep. Kurtz
ENROLLED HOUSE BILL No. 4384
AN ACT to amend 1998 PA 386, entitled “An act to codify, revise, consolidate, and classify aspects of the law relating to wills and intestacy, relating to the administration and distribution of estates of certain individuals, relating to trusts, and relating to the affairs of certain individuals under legal incapacity; to provide for the powers and procedures of the court that has jurisdiction over these matters; to provide for the validity and effect of certain transfers, contracts, and deposits that relate to death; to provide procedures to facilitate enforcement of certain trusts; and to repeal acts and parts of acts,” by amending sections 1103, 5303, 5305, and 5314 (MCL 700.1103, 700.5303, 700.5305, and 700.5314), section 1103 as amended by 2009 PA 46, section 5303 as amended by 2000 PA 468, section 5305 as amended by 2012 PA 210, and section 5314 as amended by 2012 PA 173.
The People of the State of Michigan enact:
Sec. 1103. As used in this act:
(a) “Agent” includes, but is not limited to, an attorney-in-fact under a durable or nondurable power of attorney and an individual authorized to make decisions as a patient advocate concerning another’s health care.
(b) “Application” means a written request to the probate register for an order of informal probate or informal appointment under part 3 of article III.
(c) “Attorney” means, if appointed to represent a child under the provisions referenced in section 5213, an attorney serving as the child’s legal advocate in the manner defined and described in section 13a of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.13a.
(d) “Beneficiary” includes, but is not limited to, the following:
(i) In relation to a trust, a person that is a trust beneficiary as defined in section 7103.
(ii) In relation to a charitable trust, a person that is entitled to enforce the trust.
(iii) In relation to a beneficiary of a beneficiary designation, a person that is a beneficiary of an insurance or annuity policy, of an account with POD designation, of a security registered in beneficiary form (TOD), of a pension, profit-sharing, retirement, or similar benefit plan, or of another nonprobate transfer at death.
(iv) In relation to a beneficiary designated in a governing instrument, a person that is a grantee of a deed, devisee, trust beneficiary, beneficiary of a beneficiary designation, donee, appointee, taker in default of a power of appointment, or person in whose favor a power of attorney or power held in an individual, fiduciary, or representative capacity is exercised.
(e) “Beneficiary designation” means the naming in a governing instrument of a beneficiary of an insurance or annuity policy, of an account with POD designation, of a security registered in beneficiary form (TOD), of a pension, profit-sharing, retirement, or similar benefit plan, or of another nonprobate transfer at death.
(f) “Child” includes, but is not limited to, an individual entitled to take as a child under this act by intestate succession from the parent whose relationship is involved. Child does not include an individual who is only a stepchild, a foster child, or a grandchild or more remote descendant.
(g) “Claim” includes, but is not limited to, in respect to a decedent’s or protected individual’s estate, a liability of the decedent or protected individual, whether arising in contract, tort, or otherwise, and a liability of the estate that arises at or after the decedent’s death or after a conservator’s appointment, including funeral and burial expenses and costs and expenses of administration. Claim does not include an estate or inheritance tax, or a demand or dispute regarding a decedent’s or protected individual’s title to specific property alleged to be included in the estate.
(h) “Conservator” means a person appointed by a court to manage a protected individual’s estate.
(i) “Cost-of-living adjustment factor” means a fraction, the numerator of which is the United States consumer price index for the prior calendar year and the denominator of which is the United States consumer price index for 1997. As used in this subdivision, “United States consumer price index” means the annual average of the United States consumer price index for all urban consumers as defined and reported by the United States department of labor, bureau of labor statistics, or its successor agency, and as certified by the state treasurer.
(j) “Court” means the probate court or, when applicable, the family division of circuit court.
(k) “Descendant” means, in relation to an individual, all of his or her descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in this act.
(l) “Devise” means, when used as a noun, a testamentary disposition of real or personal property and, when used as a verb, to dispose of real or personal property by will.
(m) “Devisee” means a person designated in a will to receive a devise. For the purposes of article II, for a devise to a trustee of an existing trust or to a trustee under a will, the trustee is a devisee and a beneficiary is not.
(n) “Disability” means cause for a protective order as described in section 5401.
(o) “Distributee” means a person that receives a decedent’s property from the decedent’s personal representative or trust property from the trustee other than as a creditor or purchaser. A trustee of a trust created by will is a distributee only to the extent that distributed property or an increment of the distributed property remains in the trustee’s hands. A beneficiary of a trust created by will to whom the trustee distributes property received from a personal representative is a distributee of the personal representative. For the purposes of this subdivision, “trustee of a trust created by will” includes a trustee to whom property is transferred by will to the extent of the devised property.
(p) “Do-not-resuscitate order” means that term as defined in section 2 of the Michigan do-not-resuscitate procedure act, 1996 PA 193, MCL 333.1052.
Sec. 5303. (1) An individual in his or her own behalf, or any person interested in the individual’s welfare, may petition for a finding of incapacity and appointment of a guardian. The petition shall contain specific facts about the individual’s condition and specific examples of the individual’s recent conduct that demonstrate the need for a guardian’s appointment.
(2) Before a petition is filed under this section, the court shall provide the person intending to file the petition with written information that sets forth alternatives to appointment of a full guardian, including, but not limited to, a limited guardian, conservator, patient advocate designation, do-not-resuscitate order, or durable power of attorney with or without limitations on purpose, authority, or time period, and an explanation of each alternative.
(3) Upon the filing of a petition under subsection (1), the court shall set a date for hearing on the issue of incapacity. Unless the allegedly incapacitated individual has legal counsel of his or her own choice, the court shall appoint a guardian ad litem to represent the person in the proceeding.
Sec. 5305. (1) 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 a do-not-resuscitate order on behalf of the ward.
(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 of the name of each person known to be seeking appointment as guardian.
(f) Asking the individual and the petitioner about the amount of cash and property readily convertible into cash that is in the individual’s estate.
(g) 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, 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 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, the 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, the 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.
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. 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 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, to the extent granted by court order:
(a) The custody of the person of the ward and the power to establish the ward’s place of residence within or without 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.
(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 or other professional care, counsel, treatment, or service. The power of a guardian to execute a do-not-resuscitate order under subdivision (d) does not affect or limit the power of a guardian to consent to a physician’s order to withhold resuscitative measures in a hospital.
(d) The power of a guardian to execute, reaffirm, and revoke a do-not-resuscitate order on behalf of a ward is subject to this subdivision. 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, the guardian visits the ward and, if meaningful communication is possible, consults with the ward about executing the do-not-resuscitate order.
(ii) The guardian 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 guardian shall 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) If a conservator for the ward’s estate is not appointed, 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.
(g) The guardian shall 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 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) Whether the guardian has executed, reaffirmed, or revoked a do-not-resuscitate order on behalf of the ward during the past year.
(vii) Services received by the ward.
(viii) A list of the guardian’s visits with, and activities on behalf of, the ward.
(ix) A recommendation as to the need for continued guardianship.
(h) 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.
Enacting section 1. This amendatory act does not take effect unless House Bill No. 4382 of the 97th Legislature is enacted into law.
Enacting section 2. This amendatory act takes effect 90 days after the date it is enacted into law.
This act is ordered to take immediate effect.
Clerk of the House of Representatives
Secretary of the Senate
Approved
Governor
