House Introduced Bill 5919

HOUSE BILL No. 5919

June 21, 2000, Introduced by Reps. Richner, Woronchak, Hart, Shulman and Julian and referred to the Committee on Family
and Civil Law.

A bill to amend 1998 PA 386, entitled

"Estates and protected individuals code,"

by amending sections 5306, 5313, 5314, and 5417 (MCL 700.5306,

700.5313, 700.5314, and 700.5417), sections 5313 and 5314 as

amended by 2000 PA 54.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

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Sec. 5306. (1) The court may appoint a guardian if it is

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satisfied THE COURT FINDS by clear and convincing evidence BOTH

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that the individual for whom a guardian is sought is an incapaci-

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tated individual , and that the appointment is necessary as a

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means of providing continuing care and supervision of the inca-

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pacitated individual, WITH EACH FINDING SUPPORTED SEPARATELY ON

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THE RECORD. THE FORM FOR RECORDING FINDINGS UNDER THIS

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SUBSECTION SHALL REFLECT THE REQUIREMENT FOR SEPARATE FINDINGS ON

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THESE ISSUES. Alternately, the court may dismiss the proceeding

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, or may enter Alternately, the court may dismiss the

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proceeding or enter another appropriate order.

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(2) A guardian shall be granted THE COURT SHALL GRANT A

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GUARDIAN only those powers and only for that period of time as is

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necessary to provide for the demonstrated need of the incapaci-

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tated individual. , and the guardianship shall be designed THE

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COURT SHALL DESIGN THE GUARDIANSHIP to encourage the development

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of maximum self-reliance and independence in the individual.

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EXCEPT AS PROVIDED IN SUBSECTION (5), A COURT SHALL NOT GRANT A

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GUARDIAN THE SAME POWERS THAT ARE HELD BY A PATIENT ADVOCATE

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UNDER A DESIGNATION UNDER SECTION 5506. A court order establish-

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ing a guardianship shall specify any limitations on the

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guardian's powers and any time limits on the guardianship.

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EXCEPT AS PROVIDED IN SECTION 5407, THE COURT SHALL NOT AUTHORIZE

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A GUARDIAN TO, AND A GUARDIAN DOES NOT HAVE THE POWER TO, SELL A

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WARD'S REAL PROPERTY.

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(3) If it is found THE COURT FINDS by clear and convincing

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evidence that the AN individual is incapacitated and lacks the

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capacity to do some, but not all, of the tasks necessary to care

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for himself or herself, the court may appoint a limited guardian

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to provide guardianship services to the individual, but the court

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shall not appoint a full guardian.

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(4) If it is found THE COURT FINDS by clear and convincing

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evidence that the individual is incapacitated and is totally

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without capacity to care for himself or herself, the court shall

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specify that finding of fact in an order and may appoint a full

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guardian.

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(5) IF THE GUARDIAN'S WARD EXECUTES A PATIENT ADVOCATE

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DESIGNATION IN COMPLIANCE WITH SECTION 5506 AND NAMES A PERSON

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OTHER THAN THE GUARDIAN AS HIS OR HER PATIENT ADVOCATE, FOR THOSE

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TIME PERIODS WHEN THE PATIENT ADVOCATE'S AUTHORITY, RIGHTS, AND

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RESPONSIBILITIES ARE EFFECTIVE AS PROVIDED IN SECTIONS 5506 TO

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5512, THE COURT SHALL NOT GRANT AND THE GUARDIAN SHALL NOT EXER-

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CISE A POWER THAT THE DESIGNATION GIVES TO THE PATIENT ADVOCATE

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REGARDING THE WARD'S CARE, CUSTODY, OR MEDICAL TREATMENT. IF,

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HOWEVER, A PETITION FOR GUARDIANSHIP OR FOR MODIFICATION UNDER

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SECTION 5310 ALLEGES AND THE COURT FINDS THAT THE PATIENT ADVO-

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CATE DESIGNATION WAS NOT EXECUTED IN COMPLIANCE WITH SECTION

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5506, THAT THE PATIENT ADVOCATE IS NOT COMPLYING WITH THE TERMS

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OF THE DESIGNATION OR OF SECTIONS 5506 TO 5512, OR THAT THE

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PATIENT ADVOCATE IS NOT ACTING CONSISTENT WITH THE WARD'S BEST

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INTERESTS, THE COURT MAY MODIFY THE GUARDIANSHIP'S TERMS TO GRANT

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THOSE POWERS TO THE GUARDIAN.

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Sec. 5313. (1) A THE COURT MAY APPOINT A competent

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person, including a nonprofit corporation described in section

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5106, may be appointed AS guardian of a legally incapacitated

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individual. The court shall not appoint as a guardian an agency,

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public or private, that financially benefits from directly pro-

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viding housing, medical, or social services to the legally inca-

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pacitated individual. IF THE COURT DETERMINES THAT THE WARD'S

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PROPERTY NEEDS PROTECTION, THE COURT SHALL ORDER THE GUARDIAN TO

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FURNISH A BOND OR SHALL INCLUDE RESTRICTIONS IN THE LETTERS OF

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GUARDIANSHIP AS NECESSARY TO PROTECT THE PROPERTY.

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(2) In appointing a guardian under this section, the court

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shall appoint a person, if suitable and willing to serve,

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designated by the individual who is the subject of the petition,

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including a designation made in a durable power of attorney. If

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a specific designation is not made or a person designated is not

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suitable or willing to serve, the court may appoint as a guardian

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a person named as attorney in fact through a durable power of

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attorney.

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(3) If a person is not designated under subsection (2) or a

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person designated under subsection (2) is not suitable or willing

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to serve, the court may appoint as a guardian an individual who

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is related to the subject of the petition in the following order

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of preference:

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(a) The legally incapacitated individual's spouse. This

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subdivision shall be considered to include a person nominated by

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will or other writing signed by a deceased spouse.

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(b) An adult child of the legally incapacitated individual.

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(c) A parent of the legally incapacitated individual. This

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subdivision shall be considered to include a person nominated by

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will or other writing signed by a deceased parent.

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(d) A relative of the legally incapacitated individual with

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whom the individual has resided for more than 6 months before the

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filing of the petition.

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(e) A person nominated by the person who is caring for the

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individual or paying benefits to the individual.

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(4) If none of the persons listed in subsection (3) is

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suitable or willing to serve, the court may appoint any competent

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person who is suitable and willing to serve.

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Sec. 5314. Whenever meaningful communication is possible, a

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legally incapacitated individual's guardian should consult with

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the legally incapacitated individual before making a major deci-

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sion affecting the legally incapacitated individual. Except as

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limited under section 5306, a legally incapacitated individual's

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guardian is responsible for the ward's care, custody, and con-

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trol, but is not liable to third persons by reason of that

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responsibility for the ward's acts. In particular and without

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qualifying the foregoing PREVIOUS SENTENCE, a guardian has all

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of the following powers and duties, except as modified by court

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order:

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(a) To the extent that it is consistent with the terms of an

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order by a court of competent jurisdiction relating to THE WARD'S

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detention or commitment, of the ward, the guardian is entitled

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to custody of the person of the guardian's ward and may establish

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the ward's place of residence within or without this state. The

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guardian must SHALL notify the court within 14 days of
AFTER

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a change in the ward's place of residence.

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(b) If entitled to custody of the ward, the guardian must

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make provision SHALL PROVIDE for the ward's care, comfort, and

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maintenance and, when appropriate, arrange for the ward's train-

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ing and education. The guardian has the responsibility of secur-

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ing services to restore the ward to the best possible state of

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mental and physical well-being so that the ward can return to

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self-management at the earliest possible time. Without regard to

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custodial rights of the ward's person, the guardian must SHALL

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take reasonable care of the ward's clothing, furniture, vehicles,

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and other personal effects and commence a protective proceeding

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if the ward's other property is in need of NEEDS protection.

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(c) A guardian may give the consent or approval that may be

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necessary to enable the ward to receive medical or other profes-

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sional care, counsel, treatment, or service.

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(d) If a conservator for the ward's estate is not appointed,

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a guardian may:

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(i) Institute a proceeding to compel a person under a duty

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to support the ward or to pay sums for the ward's welfare to per-

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form that duty.

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(ii) Receive money and tangible property deliverable to the

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ward and apply the money and property for the ward's support,

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care, and education. The guardian shall not use money from the

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ward's estate for room and board that the guardian or the

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guardian's spouse, parent, or child have furnished the ward

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unless a charge for the service is approved by court order made

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upon notice to at least 1 of the ward's next of kin, if notice is

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possible. The guardian shall exercise care to conserve any

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excess for the ward's needs.

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(e) The guardian shall report the WARD'S condition of the

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ward and the ward's estate that is subject to the guardian's pos-

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session or control, as required by the court, but not less often

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than annually. A report under this subdivision must SHALL

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contain all of the following:

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(i) The ward's current mental, physical, and social

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condition.

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(ii) Any improvement or deterioration in the ward's mental,

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physical, and social condition that occurred during the past

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year.

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(iii) The ward's present living arrangement and any

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changes in his or her living arrangement that occurred during the

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past year.

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(iv) Whether the guardian recommends a more suitable living

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arrangement for the ward.

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(v) Medical treatment received by the ward.

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(vi) Services received by the ward.

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

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on behalf of, the ward.

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(viii) A recommendation as to the need for continued

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guardianship.

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(f) If a conservator is appointed, the guardian shall pay to

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the conservator, for management as provided in this act, the

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amount of the ward's estate received by the guardian in excess of

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the amount the guardian expends for the ward's current support,

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care, and education. The guardian shall account to the conserva-

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tor for the amount expended.

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(G) IF A CONSERVATOR IS NOT APPOINTED FOR THE WARD AND THE

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GUARDIAN HAS CONTROL OF ANY OF THE WARD'S ESTATE, WITHIN 63 DAYS

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AFTER APPOINTMENT, THE GUARDIAN SHALL PREPARE AND FILE WITH THE

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APPOINTING COURT A COMPLETE INVENTORY OF THE ESTATE THAT IS

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SUBJECT TO THE GUARDIANSHIP.

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(H) IF A CONSERVATOR IS NOT APPOINTED FOR THE WARD, THE

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GUARDIAN SHALL FILE AN ACCOUNT WITH THE COURT OF ALL INCOME AND

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ASSETS IN THE GUARDIAN'S CONTROL. THE GUARDIAN SHALL FILE THE

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ACCOUNT AS REQUIRED BY THE COURT, BUT NOT LESS THAN ANNUALLY.

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THE COURT, OR STAFF ASSIGNED BY THE COURT, SHALL REVIEW THE

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ACCOUNTING.

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Sec. 5417. (1) Within 63 days after appointment or within

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another time period specified by court rule, a conservator must

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SHALL prepare and file with the appointing court a complete

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inventory AND ACCOUNTING of the PROTECTED INDIVIDUAL'S estate

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subject to the conservatorship together with an oath or affirma-

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tion that the inventory is AND ACCOUNTING ARE believed to be

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complete and accurate so far as information permits. THE COURT,

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OR STAFF ASSIGNED BY THE COURT, SHALL REVIEW THE ACCOUNTING.

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(2) The conservator must SHALL provide a copy of the

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inventory AND ACCOUNTING to the protected individual if the

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individaul INDIVIDUAL can be located, and if the individual

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is 14 years of age or older, and has sufficient mental capacity

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to understand the arrangement. A copy must also be provided

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THESE MATTERS. THE CONSERVATOR SHALL ALSO PROVIDE A COPY to a

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parent or guardian with whom the protected individual resides.

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(3) (2) The conservator must keep suitable records of the

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administration and exhibit those records on the request of an

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interested person.

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