Bill Text: MI HB4996 | 2017-2018 | 99th Legislature | Introduced

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Bill Title: Probate; guardians and conservators; notification requirements of guardians; expand. Amends secs. 5308, 5310 & 5314 of 1998 PA 386 (MCL 700.5308 et seq.).

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2017-09-26 - Bill Electronically Reproduced 09/20/2017 [HB4996 Detail]

Download: Michigan-2017-HB4996-Introduced.html

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HOUSE BILL No. 4996

 

 

September 20, 2017, Introduced by Rep. Kosowski and referred to the Committee on Judiciary.

 

     A bill to amend 1998 PA 386, entitled

 

"Estates and protected individuals code,"

 

by amending sections 5308, 5310, and 5314 (MCL 700.5308, 700.5310,

 

and 700.5314), section 5308 as amended by 2005 PA 204, section 5310

 

as amended by 2000 PA 54, and section 5314 as amended by 2013 PA

 

157.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 5308. (1) The Except as otherwise provided in subsection

 

(2), a guardian's authority and responsibility for a legally

 

incapacitated individual terminates upon on the death of the

 

guardian or ward, upon on the determination of incapacity of the

 

guardian, or upon on removal or resignation as provided in section

 

5310. Testamentary appointment of a guardian under an unprobated

 

will or a will informally probated under article III terminates if

 

the will is later denied probate in a formal testacy proceeding.

 

     (2) Within 36 hours after the death of a ward, if the guardian

 

knows the funeral arrangements of the decedent, the guardian shall

 

provide written or oral notice to the heirs about the funeral

 

arrangements.

 

     Sec. 5310. (1) On petition of the guardian and subject to the

 

filing and approval of a report prepared as required by section

 

5314, the court shall accept the guardian's resignation and make

 

any other order that is appropriate.

 

     (2) The ward or a person interested in the ward's welfare may

 

petition the court for an order removing the guardian, appointing a

 

successor guardian, modifying the guardianship's terms, or

 

terminating the guardianship. A request for this order may be made

 

by informal letter to the court or judge. A person who knowingly

 

interferes with the transmission of this kind of request to the

 

court or judge is subject to a finding of contempt of court.

 

     (3) Except as otherwise provided in the order finding

 

incapacity, upon on receiving a petition or request under this

 

section, the court shall set a date for a hearing to be held within

 

28 days after the receipt of the petition or request. An order

 

finding incapacity may specify a minimum period, not exceeding 182

 

days, during which a petition or request for a finding that a ward

 

is no longer an incapacitated individual, or for an order removing

 

the guardian, modifying the guardianship's terms, or terminating

 

the guardianship, shall must not be filed without special leave of

 

the court.

     (4) A relative of the ward may petition the court for an order

 

modifying the terms of the guardianship to grant the relative

 

access to the ward, including visitation and communication with the

 

ward. If the court finds by a preponderance of the evidence that

 

the guardian previously denied the relative access to the ward and

 

that the ward desires contact with the relative or that contact

 

with the relative is in the ward's best interest, the court shall

 

issue an order prohibiting the guardian from denying access to the

 

ward. An order issued under this subsection must specify the

 

frequency, time, place, location, and any other terms of access.

 

     (5) (4) Before removing a guardian, appointing a successor

 

guardian, modifying the guardianship's terms, or terminating a

 

guardianship, and following the same procedures to safeguard the

 

ward's rights as apply to a petition for a guardian's appointment,

 

the court may send a visitor to the present guardian's residence

 

and to the place where the ward resides or is detained to observe

 

conditions and report in writing to the court.

 

     Sec. 5314. Whenever 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 by reason 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 custody of the person of the ward and the power to

 

establish the ward's place of residence within in or without

 

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.

 

     (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 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, 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 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 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) 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 or 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 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 shall 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 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.

 

     (i) The duty to notify the interested persons as specified in

 

the Michigan court rules if the ward has been admitted to a

 

hospital for acute care for 3 or more days. A notice under this

 

subdivision may be written or oral. As used in this subdivision,

 

"hospital" means that term as defined in section 20106 of the

 

public health code, 1978 PA 368, MCL 333.20106.