Bill Text: MI HB5047 | 2023-2024 | 102nd Legislature | Introduced
Bill Title: Probate: guardians and conservators; office of state guardian; create. Amends sec. 5106 of 1998 PA 386 (MCL 700.5106) & adds pt. 5A to art. V. TIE BAR WITH: HB 4909'23, HB 4910'23, HB 4911'23, HB 4912'23
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed) 2023-10-25 - Referred To Committee On Civil Rights, Judiciary, And Public Safety [HB5047 Detail]
Download: Michigan-2023-HB5047-Introduced.html
HOUSE BILL NO. 5047
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending section 5106 (MCL 700.5106), as amended by 2017 PA 136, and by adding part 5A to article V.
the people of the state of michigan enact:
Sec. 5106. (1) Subject to subsections (2) and (3), the court may appoint or approve a professional guardian or professional conservator, as appropriate, as a guardian or conservator under this act, or as a plenary guardian or partial guardian as those terms are defined in section 600 of the mental health code, 1974 PA 258, MCL 330.1600.
(2) The court shall only appoint a professional guardian or professional conservator as authorized under subsection (1) if the court finds on the record all of the following:
(a) The appointment of the professional guardian or professional conservator is in the ward's, developmentally disabled individual's, incapacitated individual's, or protected individual's best interests.
(b) There is no other person that is competent, suitable, and willing to serve in that fiduciary capacity in accordance with section 5212, 5313, or 5409.
(3) The court shall not appoint a professional guardian or professional conservator as authorized under subsection (1) unless the both of the following conditions are met:
(a) The professional guardian or professional conservator files a bond in an amount and with the conditions as determined by the court. For a professional conservator, the sureties and liabilities of the bond are subject to sections 5410 and 5411.
(b) The professional guardian or professional conservator holds a license issued under part 5A of this article.
(4) A professional guardian or professional conservator appointed under this section shall not receive as a result of that appointment a benefit beyond compensation specifically authorized for that type of fiduciary by this act or the mental health code, 1974 PA 258, MCL 330.1001 to 330.2106. This subsection does not prevent a person from providing compensation or other benefits, from a source other than the estate of the ward, developmentally disabled individual, incapacitated individual, or protected individual, to a professional guardian or professional conservator appointed or approved under this section. If a professional guardian or professional conservator appointed or approved under this section receives or is to receive compensation or other benefits as a result of that appointment from a person other than this state, a political subdivision of this state, or a trust created under section 5407(2), the professional guardian or professional conservator shall file with the appointing or approving court a written statement of the compensation or other benefit received or to be received, including the source of the compensation or other benefit, in a form and in a manner prescribed by the Michigan court rules. The professional guardian or professional conservator shall serve a copy of the form described in this subsection to the ward, developmentally disabled individual, incapacitated individual, or protected individual and to interested persons.
(5) A professional guardian appointed under this section shall establish and maintain a schedule of visitation so that an individual associated with the professional guardian who is responsible for the ward's care visits the ward within 3 months after the professional guardian's appointment and not less than once within 3 months after each previous visit.
(6) A professional guardian appointed under this section shall ensure that there are a sufficient number of employees assigned to the care of wards for the purpose of performing the necessary duties associated with ensuring that proper and appropriate care is provided.
(7) For the purposes of the statutory authorization required by section 1105(2)(e) of the banking code of 1999, 1999 PA 276, MCL 487.11105, to act as a fiduciary in this state, if the court appoints a for-profit or nonprofit, nonbanking corporation organized under the laws of this state to serve in a fiduciary capacity that is listed in subsection (1), the nonbanking corporation is authorized to act in that fiduciary capacity. The authorization under this subsection confers the fiduciary capacity only to the extent necessary in the particular matter of each appointment and is not a general grant of fiduciary authority. A nonbanking corporation is not authorized to act in any other fiduciary capacity.
PROFESSIONAL GUARDIANS AND PROFESSIONAL CONSERVATORS
Sec. 5531. As used in this part:
(a) "Adult protective services" means the office, division, or unit of the department that is charged with investigation of abuse, neglect, or exploitation of vulnerable individuals under the social welfare act, 1939 PA 280, MCL 400.1 to 400.119b.
(b) "Attorney general" means the department of attorney general.
(c) "Board" means the professional guardian and professional conservator board created in section 5532.
(d) "Department" means the department of health and human services.
(e) "Executive director" means the executive director of the board appointed by the governor under section 5532.
(f) "Indigent" means an individual who is unable, without substantial financial hardship to the individual or to the individual's dependents, to pay a competent, qualified professional guardian on the individual's own. Substantial financial hardship is rebuttably presumed if the ward receives personal public assistance, including under the food assistance program, temporary assistance for needy families, Medicaid, or disability insurance, resides in public housing, or earns an income less than 140% of the federal poverty guideline.
Sec. 5532. (1) The professional guardian and professional conservator board is created within the department.
(2) The board consists of the following members, appointed by the governor:
(a) One member from a list of 3 or more individuals recommended by the attorney general.
(b) One member from a list of 3 or more individuals recommended by the senate majority leader.
(c) One member from a list of 3 or more individuals recommended by the speaker of the house of representatives.
(d) One member from a list of 3 or more individuals recommended by the chief justice of the supreme court.
(e) One member from a list of 3 or more individuals recommended by the agency that implements and administers the program for the protection and advocacy of the rights of persons with developmental disabilities under section 931 of the mental health code, 1974 PA 258, MCL 330.1931.
(f) One member who is a probate judge.
(g) One member who is a probate court register.
(h) One member from a list of 3 or more individuals recommended by the department's behavioral physical health and aging administration representing the interests of vulnerable adults as that term is defined in section 145m of the Michigan penal code, 1931 PA 328, MCL 750.145m.
(i) One member from adult protective services.
(j) One member who is a professional guardian.
(k) One member who is a professional conservator.
(l) One member who is a licensed master's social worker as that term is defined in section 18501 of the public health code, 1978 PA 368, MCL 333.18501.
(m) One member who is recommended by the state long-term care ombudsman established under section 6 of the older Michiganians act, 1981 PA 180, MCL 400.586.
(n) One member who is recommended by a community mental health authority as that term is defined in section 100a of the mental health code, 1974 PA 258, MCL 330.1100a, to represent the interests of community mental health services programs as that term is defined in section 100a of the mental health code, 1974 PA 258, MCL 330.1100a.
(3) The governor shall appoint the executive director of the board to a 4-year term. The executive director is a full, voting member of the board.
(4) The governor shall appoint the first members to the board not later than 180 days after the effective date of the amendatory act that added this part.
(5) Members of the board shall serve for terms of 4 years or until a successor is appointed, whichever is later, except that of the members first appointed, the members provided for in subsection (2)(a) to (e) shall serve for 2 years, the members provided for in subsection (2)(f) to (j) shall serve for 3 years, and the members provided for in subsection (2)(k) to (n) shall serve for 4 years.
(6) If a vacancy occurs on the board, the governor shall make an appointment for the unexpired term in the same manner as the original appointment.
(7) The governor may remove a member of the board for incompetence, dereliction of duty, malfeasance, misfeasance, or nonfeasance in office, or any other good cause.
(8) The executive director shall call the first meeting of the board. At the first meeting, the board shall elect from among its members a chairperson and other officers as it considers necessary or appropriate. After the first meeting, the board shall meet at least quarterly.
(9) A majority of the members of the board constitute a quorum for the transaction of business at a meeting of the board. A majority of the members present and serving are required for official action of the board.
(10) The business that the board may perform must be conducted at a public meeting of the board held in compliance with the open meetings act, 1976 PA 267, MCL 15.261 to 15.275.
(11) A writing prepared, owned, used, in the possession of, or retained by the board in the performance of an official function is subject to the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.
(12) Members of the board shall serve without compensation. However, members of the board may be reimbursed for their actual and necessary expenses incurred in the performance of their official duties as members of the board.
Sec. 5533. (1) The executive director shall do all of the following:
(a) Set minimum standards for licensure of professional guardians and professional conservators.
(b) Ensure that professional guardians and professional conservators maintain compliance with minimum standards of practice.
(c) Adopt a process for receipt of complaints against guardians and conservators. The board may initiate complaints.
(d) Act as an interested party, upon appearance, in any guardianship or conservatorship proceeding and be entitled to any documents or information requested in writing.
(e) Adopt a process to refer appropriate complaints regarding guardians and conservators to the attorney general or another investigatory agency, including, but not limited to, adult protective services or a law enforcement agency, for investigation.
(f) Adopt a process to refer wards or interested persons to an agency that provides legal representation or advocacy for wards.
(g) Establish rules concerning the discipline of guardians and conservators who fail to meet licensure standards, breach their fiduciary duties, or otherwise engage in misconduct.
(h) Publish educational materials that assist guardians and conservators to better meet their fiduciary responsibilities.
(i) Contract with professional guardians to provide guardianship services to eligible indigent wards or prospective wards and maintain minimum standards for contracting professional guardians.
(j) Collect uniform and consistent data regarding service delivery that must be made available, on a quarterly basis, to the legislature and the supreme court in a format that is not identifiable by individual ward or protected individual to protect confidentiality. The data under this subdivision must include all of the following:
(i) The number of wards under a guardianship.
(ii) The number of protected individuals under a conservatorship.
(iii) The number of wards under a partial guardianship.
(iv) The number of wards under a full guardianship.
(v) The number of guardians and conservators licensed under this part.
(vi) For each professional guardian, the number of wards to whom the professional guardian was appointed.
(vii) For each professional conservator, the number of protected individuals to whom the professional conservator was appointed.
(k) Consult with and assist other public or private agencies or organizations to implement the intent of this part.
(l) Make recommendations to the legislature and the supreme court on matters relating to the board's responsibilities under this part.
(m) Conduct contested case hearings under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, as required to administer licensing and discipline under this part.
(n) Modify any minimum requirement under this part with the approval of the board.
(o) Promulgate any other rules that are necessary and appropriate to enable the board to fulfill its role and efficiently administer this part.
(2) The executive director shall not petition for a guardianship or conservatorship or accept appointment as a guardian or conservator of any individual.
Sec. 5534. (1) A person shall not serve as a professional guardian or professional conservator unless the person is issued a license under this section by the executive director.
(2) The executive director shall not issue a professional guardian license or professional conservator license unless the applicant meets all of the following conditions:
(a) The applicant holds a certification from the National Center for Guardianship Certification.
(b) The applicant submits a criminal background check to the department of state police.
(c) The applicant has not been found liable in a civil action that involved fraud, misrepresentation, material omission, misappropriation, theft, exploitation, abuse, neglect, sexual assault, or conversion.
(3) A professional guardian or professional conservator shall report to the executive director not later than 30 days after any of the following events have occurred:
(a) Conviction of a felony.
(b) A substantiated case on the central registry as those terms are defined in section 2 of the child protection law, 1975 PA 238, MCL 722.622.
(c) Conviction of a misdemeanor related to child abuse or neglect, vulnerable adult abuse or neglect, controlled substances, criminal sexual conduct, domestic violence, stalking, embezzlement, or crimes of theft or dishonesty.
(d) Filing of bankruptcy.
(e) Entry of a personal protection order against the professional guardian or professional conservator.
(f) Entry of an order from the probate court to surcharge the professional guardian's or the professional conservator's bond or entry of a judgment against the professional guardian or professional conservator in any court.
(g) Finding by the probate court that the professional guardian or professional conservator breached the professional guardian's or the professional conservator's fiduciary duties.
Sec. 5535. (1) The executive director shall contract with professional guardians to provide guardianship services for an indigent ward who is any of the following:
(a) At significant risk of harm from abuse, neglect, exploitation, abandonment, self-harm, or self-neglect.
(b) In imminent danger of loss of, or significant reduction in, public services that are necessary for the ward to live successfully in the most integrated and least restrictive environment that is appropriate in light of the ward's needs and values.
(c) Homeless or at risk of homelessness.
(2) Except as otherwise provided in this subsection, a professional guardian that contracts with the executive director under this section shall not serve as a professional guardian for more than 30 wards total, including those wards for whom guardianship services are not provided for under a contract in accordance with this section. The executive director may allow a professional guardian to serve as guardian for more than 30 wards if all of the following conditions are met:
(a) The professional guardian requests that a guardianship is necessary in an emergency or unusual circumstance.
(b) The professional guardian does not serve as guardian for more than 3 consecutive months or more than 4 months in 12 months.
(3) The executive director shall develop a fee schedule for the payment of contracting professional guardians under this section. All of the following apply to the fee schedule under this subsection:
(a) Fees for contracting professional guardians must not be lower than patient pay offsets permitted for the payment of guardian expenses as provided in the Bridges Eligibility Manual 546 published by the department.
(b) The fee schedule must include all of the following:
(i) Case-weighting guidelines that provide for greater compensation for the first 3 months of a new guardianship.
(ii) Higher compensation if the case is complex at the time of appointment.
(iii) Allow for adjustment during the guardianship if the complexity of the case changes.
Sec. 5536. (1) The executive director shall establish procedures to do all of the following:
(a) Receive or initiate complaints against guardians and conservators, which must be in writing.
(b) Review complaints against guardians and conservators to determine whether the guardian or conservator has failed to meet licensure standards, breached the guardian's or the conservator's fiduciary duties, or otherwise engaged in misconduct.
(c) Obtain the information necessary to investigate a complaint by filing an appearance as an interested party in the relevant court proceeding.
(d) Develop procedures to respond to complaints, conduct investigations and hearings, and take administrative action consistent with this part.
(e) Make findings as to whether a guardian or conservator has, or has not, failed to meet licensure standards, breached the guardian's or the conservator's fiduciary duties, or otherwise engaged in misconduct.
(f) Issue appropriate disciplinary orders when there are findings of wrongdoing and dismiss complaints without merit.
(g) Refer appropriate complaints to the attorney general or another law enforcement agency.
(2) If the executive director determines that a nonpublic court file exists and that it is relevant to a pending complaint, the executive director may request that the court release the nonpublic court file to the executive director. On request of the executive director, the court shall release the nonpublic court file to the executive director.
(3) The executive director may request a law enforcement officer to provide all available information about a given complaint filed against a professional guardian or professional conservator after a law enforcement officer has completed an investigation regarding that complaint against the professional guardian or professional conservator. An investigation is considered completed after a prosecutor issues or declines to issue charges. A law enforcement officer may redact information if needed to protect the safety of witnesses or preserve the integrity of an investigation.
(4) If the executive director finds that a professional guardian or professional conservator fails to meet the conditions under section 5534, after an opportunity for a hearing under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, the executive director shall reduce the findings and decision to writing and shall issue and cause to be served on the professional guardian or professional conservator charged with the failure a copy of the findings and an order requiring the person to cease and desist from the violation. In addition, the executive director may order any of the following:
(a) Revocation of the license of the professional guardian or professional conservator.
(b) The suspension of the professional guardian or professional conservator, subject to the following:
(i) The suspension must not be less than 30 days, with conditions relevant to the failure to meet the conditions under section 5534.
(ii) If the suspension exceeds 179 days, the suspension must remain until further order of the executive director.
(c) Reprimand with conditions relevant to the failure to meet the conditions under section 5534.
(d) Probation.
(e) Restitution in an amount determined by the executive director.
(5) If the executive director determines or has reasonable cause to suspect that a ward has been or is being abused, neglected, or exploited as a result of a filed complaint or during the course of an investigation of a complaint, the executive director shall immediately report the determination or suspicion to adult protective services.
Sec. 5537. The attorney general may do any of the following:
(a) Subpoena documents from any probate court, guardian, conservator, or other fiduciary.
(b) Intervene on behalf of the public and participate as an interested party, at any stage of the proceeding, in any guardian, conservator, or protective proceeding.
(c) Investigate any complaint referred by the executive director and make recommendations to the executive director and law enforcement about the complaint.
Sec. 5538. (1) The professional guardian and professional conservator compliance fund is created within the state treasury.
(2) The state treasurer may receive money or other assets from any source for deposit into the fund. The state treasurer shall direct the investment of the fund. The state treasurer shall credit to the fund interest and earnings from fund investments.
(3) Money in the fund at the close of the fiscal year remains in the fund and does not lapse to the general fund.
(4) The department is the administrator of the fund for auditing purposes.
(5) The department shall expend money from the fund, on appropriation, to reimburse the attorney general for expenses incurred related to investigations under and enforcement of this part.
