Bill Text: MI HB5818 | 2017-2018 | 99th Legislature | Introduced
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).
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2018-12-31 - Assigned Pa 594'18 With Immediate Effect [HB5818 Detail]
Download: Michigan-2017-HB5818-Introduced.html
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.
