SB-0049, As Passed House, October 5, 2017

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 49

     A bill to amend 1998 PA 386, entitled

"Estates and protected individuals code,"

by amending section 5106 (MCL 700.5106), as amended by 2000 PA 463.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 5106. (1) Subject to the other provisions of this

section, subsections (2) and (3), the court may appoint or approve

a professional guardian or professional conservator, as

appropriate, as a guardian or conservator under this act, or as a

plenary guardian or partial guardian as those terms are defined in

section 600 of the mental health code, 1974 PA 258, MCL 330.1600.

     (2) The court shall only appoint a professional guardian or

professional conservator as authorized under subsection (1) if the

court finds on the record all of the following:

     (a) The appointment of the professional guardian or

professional conservator is in the ward's, developmentally disabled

individual's, incapacitated individual's, or protected individual's

best interests.

     (b) There is no other person that is competent, suitable, and

willing to serve in that fiduciary capacity in accordance with

section 5212, 5313, or 5409.

     (3) The court shall not appoint a professional guardian or

professional conservator as authorized under subsection (1) unless

the professional guardian or professional conservator files a bond

in an amount and with the conditions as determined by the court.

For a professional conservator, the sureties and liabilities of the

bond shall be as provided in are subject to sections 5410 and 5411.

     (4) A professional guardian or professional conservator

appointed under this section shall not receive as a result of that

appointment a benefit beyond compensation specifically authorized

for that type of fiduciary by this act or the mental health code,

1974 PA 258, MCL 330.1001 to 330.2106. This subsection does not

prevent a person from providing compensation or other benefits,

from a source other than the estate of the ward, developmentally

disabled individual, incapacitated individual, or protected

individual, to a professional guardian or professional conservator

appointed or approved under this section. If a professional

guardian or professional conservator appointed or approved under

this section receives or is to receive compensation or other

benefits as a result of that appointment from a person other than

this state, a political subdivision of this state, or a trust

created under section 5407(2), the professional guardian or

professional conservator shall file with the appointing or

approving court a written statement of the compensation or other

benefit received or to be received, including the source of the

compensation or other benefit, in a form and in a manner prescribed

by the Michigan court rules. The professional guardian or

professional conservator shall serve a copy of the form described

in this subsection to the ward, developmentally disabled

individual, incapacitated individual, or protected individual and

to interested persons.

     (5) A professional guardian appointed under this section shall

establish and maintain a schedule of visitation so that an

individual associated with the professional guardian who is

responsible for the ward's care visits the ward within 3 months

after the professional guardian's appointment and not less than

once within 3 months after each previous visit.

     (6) A professional guardian appointed under this section shall

ensure that there are a sufficient number of employees assigned to

the care of wards for the purpose of performing the necessary

duties associated with ensuring that proper and appropriate care is

provided.

     (7) For the purposes of the statutory authorization required

by section 1105(2)(e) of the banking code of 1999, 1999 PA 276, MCL

487.11105, to act as a fiduciary in this state, if the court

appoints a for-profit or nonprofit, nonbanking corporation

organized under the laws of this state to serve in a fiduciary

capacity that is listed in subsection (1), the nonbanking

corporation is authorized to act in that fiduciary capacity. The

authorization under this subsection confers the fiduciary capacity

only to the extent necessary in the particular matter of each

appointment and is not a general grant of fiduciary authority. A

nonbanking corporation is not authorized to act in any other

fiduciary capacity.

     Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.