February 3, 2016, Introduced by Rep. Lucido 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) On the death of a ward, if the guardian knows the funeral
arrangements of the decedent, the guardian shall inform the heirs
about the funeral arrangement within 24 hours after the guardian
receives notice of the ward's death. The guardian may inform an
heir under this subsection at the heir's last known address,
telephone number, or electronic mail address.
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 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, 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 except for the standard of proof for modifying a
guardianship under subsection (4), 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 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 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 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.
(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) If the ward is admitted to a hospital for acute care for 3
or more days, the duty to give notice to all interested persons of
the admission. The notice must include the hospital's address and
the date of admission. The guardian shall file a proof of service
of the notice with the court. 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.