Bill Text: MI HB5818 | 2017-2018 | 99th Legislature | Engrossed


Bill Title: Probate; guardians and conservators; guardians' authority to consent to mental health treatment; allow. Amends sec. 5314 of 1998 PA 386 (MCL 700.5314). TIE BAR WITH: HB 5819'18

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2018-06-05 - Referred To Committee On Health Policy [HB5818 Detail]

Download: Michigan-2017-HB5818-Engrossed.html

HB-5818, As Passed House, May 30, 2018

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

HOUSE BILL No. 5818

 

 

April 17, 2018, Introduced by Reps. Guerra, Vaupel and Kesto and referred to the Committee on Health Policy.

 

     A bill to amend 1998 PA 386, entitled

 

"Estates and protected individuals code,"

 

by amending section 5314 (MCL 700.5314), as amended by 2017 PA 155.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 5314. 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

 

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 in or 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, mental health, or


other professional care, counsel, treatment, or service. However, a

 

guardian does not have and shall not exercise the power to give the

 

consent to or approval for inpatient hospitalization unless the

 

court expressly grants the power in its order. If the ward objects

 

or actively refuses mental health treatment, the guardian or any

 

other interested person must follow the procedures provided in

 

chapter 4 of the mental health code, 1974 PA 258, MCL 330.1400 to

 

330.1490, to petition the court for an order to provide involuntary

 

mental health treatment. The power of a guardian to execute a do-

 

not-resuscitate order under subdivision (d) or execute a physician

 

orders for scope of treatment 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. As used in

 

this subdivision, "involuntary mental health treatment" means that

 

term as defined in section 400 of the mental health code, 1974 PA

 

258, MCL 330.1400.

 

     (d) The power to execute, reaffirm, and revoke a do-not-

 

resuscitate order on behalf of a ward. 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, visits the ward and, if meaningful communication

 

is possible, consults with the ward about executing the do-not-

 

resuscitate order.

 

     (ii) 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 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 physician

 

orders for scope of treatment form on behalf of a ward. However, a

 

guardian shall not execute a physician orders for scope of

 

treatment form unless the guardian does all of the following:

 

     (i) Not more than 14 days before executing the physician

 

orders for scope of treatment form, visits the ward and, if

 

meaningful communication is possible, consults with the ward about

 

executing the physician orders for scope of treatment form.

 

     (ii) Consults directly with the ward's attending physician as

 

to the specific medical indications that warrant the physician

 

orders for scope of treatment form.

 

     (g) If a guardian executes a physician orders for scope of

 

treatment form under subdivision (f), not less than annually after

 

the physician orders for scope of treatment is first executed, the

 

duty to do all of the following:

 

     (i) Visit the ward and, if meaningful communication is

 

possible, consult with the ward about reaffirming the physician


orders for scope of treatment form.

 

     (ii) Consult directly with the ward's attending physician as

 

to specific medical indications that may warrant reaffirming the

 

physician orders for scope of treatment form.

 

     (h) 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 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.

 

     (i) The 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 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, including mental health 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 physician orders for scope of treatment form on behalf of

 

the ward during the past year.

 

     (viii) Services received by the ward.

 

     (ix) A list of the guardian's visits with, and activities on

 

behalf of, the ward.

 

     (x) A recommendation as to the need for continued

 

guardianship.

 

     (j) 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. 5819 (request no.

 

03363'17 *) of the 99th Legislature is enacted into law.

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