Bill Text: MI HB5153 | 2017-2018 | 99th Legislature | Introduced
Bill Title: Probate; guardians and conservators; nonopioid directive form; allow a guardian to execute. Amends secs. 1106 & 5314 of 1998 PA 386 (MCL 700.1106 & 700.5314).
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2018-12-31 - Assigned Pa 555'18 With Immediate Effect [HB5153 Detail]
Download: Michigan-2017-HB5153-Introduced.html
HOUSE BILL No. 5153
October 19, 2017, Introduced by Reps. Canfield, Lucido, Hoadley, Brann, Leutheuser, Singh, McCready, Kahle, Inman and Zemke and referred to the Committee on Health Policy.
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending sections 1106 and 5314 (MCL 700.1106 and 700.5314),
section 1106 as amended by 2009 PA 46 and section 5314 as amended
by 2013 PA 157.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1106. As used in this act:
(a) "Mental health professional" means an individual who is
trained and experienced in the area of mental illness or
developmental disabilities and who is 1 of the following:
(i) A physician who is licensed to practice medicine or
osteopathic medicine and surgery in this state under article 15 of
the public health code, 1978 PA 368, MCL 333.16101 to 333.18838.
(ii) A psychologist licensed to practice in this state under
article 15 of the public health code, 1978 PA 368, MCL 333.16101 to
333.18838.
(iii) A registered professional nurse licensed to practice in
this state under article 15 of the public health code, 1978 PA 368,
MCL 333.16101 to 333.18838.
(iv) A licensed master's social worker licensed under article
15 of the public health code, 1978 PA 368, MCL 333.16101 to
333.18838.
(v) A physician's assistant licensed to practice in this state
under article 15 of the public health code, 1978 PA 368, MCL
333.16101 to 333.18838.
(vi) A licensed professional counselor licensed under part 181
of the public health code, 1978 PA 368, MCL 333.18101 to 333.18117.
(b) "Michigan prudent investor rule" means the fiduciary
investment and management rule prescribed by part 5 of this
article.
(c) "Minor" means an individual who is less than 18 years of
age.
(d) "Minor ward" means a minor for whom a guardian is
appointed solely because of minority.
(e) "Money" means legal tender or a note, draft, certificate
of deposit, stock, bond, check, or credit card.
(f) "Mortgage" means a conveyance, agreement, or arrangement
in which property is encumbered or used as security.
(g) "Nonopioid directive form" means that term as defined in
section 9145 of the public health code, 1978 PA 368, MCL 333.9145.
(h) (g)
"Nonresident decedent"
means a decedent who was
domiciled in another jurisdiction at the time of his or her death.
(i) (h)
"Organization" means a
corporation, business trust,
estate, trust, partnership, limited liability company, association,
or joint venture; governmental subdivision, agency, or
instrumentality; public corporation; or another legal or commercial
entity.
(j) (i)
"Parent" includes, but is
not limited to, an
individual entitled to take, or who would be entitled to take, as a
parent under this act by intestate succession from a child who dies
without a will and whose relationship is in question. Parent does
not include an individual who is only a stepparent, foster parent,
or grandparent.
(k) (j)
"Partial guardian" means
that term as defined in
section 600 of the mental health code, 1974 PA 258, MCL 330.1600.
(l) (k)
"Patient advocate" means
an individual designated to
exercise powers concerning another individual's care, custody, and
medical or mental health treatment or authorized to make an
anatomical gift on behalf of another individual, or both, as
provided in section 5506.
(m) (l) "Patient
advocate designation" means the written
document executed and with the effect as described in sections 5506
to 5515.
(n) (m)
"Payor" means a trustee,
insurer, business entity,
employer, government, governmental subdivision or agency, or other
person authorized or obligated by law or a governing instrument to
make payments.
(o) (n)
"Person" means an
individual or an organization.
(p) (o)
"Personal representative"
includes, but is not limited
to, an executor, administrator, successor personal representative,
and special personal representative, and any other person, other
than a trustee of a trust subject to article VII, who performs
substantially the same function under the law governing that
person's status.
(q) (p)
"Petition" means a
written request to the court for an
order after notice.
(r) (q)
"Plenary guardian" means
that term as defined in
section 600 of the mental health code, 1974 PA 258, MCL 330.1600.
(s) (r)
"Proceeding" includes an
application and a petition,
and may be an action at law or a suit in equity. A proceeding may
be denominated a civil action under court rules.
(t) (s)
"Professional
conservator" means a person that
provides conservatorship services for a fee. Professional
conservator does not include a person who is an individual who is
related to all but 2 of the protected individuals for whom he or
she is appointed as conservator.
(u) (t)
"Professional guardian"
means a person that provides
guardianship services for a fee. Professional guardian does not
include a person who is an individual who is related to all but 2
of the wards for whom he or she is appointed as guardian.
(v) (u)
"Property" means anything
that may be the subject of
ownership, and includes both real and personal property or an
interest in real or personal property.
(w) (v)
"Protected individual"
means a minor or other
individual for whom a conservator has been appointed or other
protective order has been made as provided in part 4 of article V.
(x) (w)
"Protective proceeding"
means a proceeding under the
provisions of part 4 of article V.
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) or execute a nonopioid directive form under subdivision (f)
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) The power to execute, reaffirm, and revoke a nonopioid
directive form on behalf of a ward.
(g) (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 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.
(h) (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) Whether the guardian has executed, reaffirmed, or
revoked a nonopioid directive form on behalf of the ward during the
past year.
(viii) (vii) Services
received by the ward.
(ix) (viii) A list
of the guardian's visits with, and
activities on behalf of, the ward.
(x) (ix) A
recommendation as to the need for continued
guardianship.
(i) (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 takes effect 90 days
after the date it is enacted into law.
Enacting section 2. This amendatory act does not take effect
unless Senate Bill No.____ or House Bill No. 5152 (request no.
02563'17 *) of the 99th Legislature is enacted into law.
