Bill Text: MI HB4910 | 2023-2024 | 102nd Legislature | Engrossed
Bill Title: Probate: guardians and conservators; duties of guardians, conservators, and guardians ad litem; modify. Amends secs. 5305, 5314, 5406, 5417 & 5418 of 1998 PA 386 (MCL 700.5305 et seq.) & adds sec. 5314a. TIE BAR WITH: HB 4909'23, HB 4911'23, HB 4912'23, HB 5047'23
Spectrum: Moderate Partisan Bill (Democrat 46-7)
Status: (Engrossed) 2023-10-25 - Referred To Committee On Civil Rights, Judiciary, And Public Safety [HB4910 Detail]
Download: Michigan-2023-HB4910-Engrossed.html
Substitute For
HOUSE BILL NO. 4910
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending sections 5305, 5314, 5406, 5417, and 5418 (MCL 700.5305, 700.5314, 700.5406, 700.5417, and 700.5418), section 5305 as amended by 2017 PA 155, section 5314 as amended by 2018 PA 594, section 5406 as amended by 2000 PA 464, and sections 5417 and 5418 as amended by 2000 PA 312, and by adding section 5314a.
the people of the state of michigan enact:
Sec. 5305. (1) The Subject to subsection (2), the duties of a guardian ad litem appointed for when an individual is alleged to be incapacitated include all of the following:
(a) Personally visiting the individual.
(b) Explaining to the individual the nature, purpose, and legal effects of a guardian's appointment.
(c) Explaining to the individual the hearing procedure and the individual's rights in the hearing procedure, including, but not limited to, all of the following:
(i) The right to contest the petition.
(ii) The right to request limits on the guardian's powers, including a limitation on the guardian's power to execute on behalf of the ward either of the following:
(A) A do-not-resuscitate order.
(B) A physician orders for scope of treatment form.
(iii) The right to object to a particular person being appointed guardian.
(iv) The right to be present at the hearing.
(v) The right to be represented by legal counsel.
(vi) The right to have legal counsel appointed for the individual if he or she is unable to afford legal counsel.
(d) Informing the individual that if a guardian is appointed, the guardian may have the power to execute a do-not-resuscitate order on behalf of the individual and, if meaningful communication is possible, discern if the individual objects to having a do-not-resuscitate order executed on his or her behalf.
(e) Informing the individual that if a guardian is appointed, the guardian may have the power to execute a physician orders for scope of treatment form on behalf of the individual and, if meaningful communication is possible, discern if the individual objects to having a physician orders for scope of treatment form executed on his or her behalf.
(f) Informing the individual of the name of each person known to be seeking appointment as guardian.
(g) Asking the individual and the petitioner about the amount of cash and property readily convertible into cash that is in the individual's estate.
(h) Making determinations, and informing the court of those determinations, on all of the following:
(i) Whether there are 1 or more appropriate alternatives to the appointment of a full guardian or whether 1 or more actions should be taken in addition to the appointment of a guardian. Before informing the court of his or her determination under this subparagraph, the guardian ad litem shall consider the appropriateness of at least each of the following as alternatives or additional actions:
(A) Appointment of a limited guardian, including the specific powers and limitation on those powers the guardian ad litem believes appropriate.
(B) Appointment of a conservator or another protective order under part 4 of this article. In the report informing the court of the determinations under this subdivision, the guardian ad litem shall include an estimate of the amount of cash and property readily convertible into cash that is in the individual's estate.
(C) Execution of a patient advocate designation, do-not-resuscitate order, physician orders for scope of treatment form, or durable power of attorney with or without limitations on purpose, authority, or duration.
(ii) Whether a disagreement or dispute related to the guardianship petition might be resolved through court ordered mediation.
(iii) Whether the individual wishes to be present at the hearing.
(iv) Whether the individual wishes to contest the petition.
(v) Whether the individual wishes limits placed on the guardian's powers.
(vi) Whether the individual objects to having a do-not-resuscitate order executed on his or her behalf.
(vii) Whether the individual objects to having a physician orders for scope of treatment form executed on his or her behalf.
(viii) Whether the individual objects to a particular person being appointed guardian.
(2) The court shall not order compensation of the guardian ad litem unless the guardian ad litem states on the record or in the guardian ad litem's written report that he or she has complied with subsection (1).
(3) If the individual alleged to be incapacitated wishes to contest the petition, to have limits placed on the guardian's powers, or to object to a particular person being appointed guardian and if legal counsel has not been secured, the court shall appoint legal counsel to represent the individual alleged to be incapacitated. If the individual alleged to be incapacitated is indigent, this state shall bear the expense of legal counsel.
(4) If the individual alleged to be incapacitated requests legal counsel or the guardian ad litem determines it is in the individual's best interest to have legal counsel, and if legal counsel has not been secured, the court shall appoint legal counsel. If the individual alleged to be incapacitated is indigent, this state shall bear the expense of legal counsel.
(5) If the individual alleged to be incapacitated has legal counsel appointed under subsection (3) or (4), the appointment of a guardian ad litem terminates.
(a) Impartially gather information as provided by law.
(b) Seek information from the individual and, if communication is possible, communicate in a manner the individual is best able to understand. If communication is not possible or there is a barrier to communication, the guardian ad litem must note that in the report under subsection (3).
(c) Interview the individual in person at the individual's location and out of the presence of any interested person.
(d) Advise the individual that the guardian ad litem does not represent the individual as an attorney and that no attorney-client relationship has been created.
(e) Identify whether the individual wishes to be present at the hearing. If the allegedly incapacitated individual does not wish to be present at the hearing, the guardian ad litem shall identify the reasons why the individual does not wish to be present.
(f) Identify any barrier to attending hearings at the place where court is held or otherwise fully participating in the hearing, including the need for assistive technology, transportation, or other support. If the allegedly incapacitated individual wishes to attend, the guardian ad litem must identify whether the individual has identified a plan for how the individual will attend.
(g) Identify whether the individual plans to retain legal counsel or wants appointed legal counsel. If the allegedly incapacitated individual does not plan to retain legal counsel or request appointed legal counsel, the guardian ad litem must make a recommendation as to whether legal counsel should be appointed.
(h) Identify whether a disagreement or dispute related to the petition might be resolved through court-ordered mediation.
(2) The duties of a guardian ad litem appointed when an individual is alleged to be incapacitated or a legally incapacitated individual include all of the following, as applicable:
(a) Explain to the individual the nature, purpose, and legal effects of a guardian's appointment.
(b) Explain who has filed the petition and who, if anyone, has been nominated as guardian.
(c) Explain to the individual the hearing procedure and the individual's rights in the hearing procedure, as identified in section 5306a, including, but not limited to, the following:
(i) The right to contest the petition, in whole or in part.
(ii) The right to request limits on the guardian's powers.
(iii) The right to be present at the hearing. If the individual is unable to attend the hearing at the location court proceedings typically are held, the guardian ad litem shall inform the individual of his or her right for the hearing at another location.
(iv) The right to request a reasonable accommodation to allow the individual to participate as fully as possible at the hearing, including with assistive technology or other support.
(v) The right to be represented by legal counsel of the individual's choice. If the individual is unable to secure legal counsel of his or her choice, the right to have legal counsel appointed by the court.
(vi) The right to request an independent medical evaluation.
(d) Explain to the individual that if a guardian is appointed, the guardian may have the power to take certain actions on behalf of the individual. A guardian ad litem must inform the individual that a guardian may have any of the following powers and, if meaningful communication is possible, discern if the individual objects to a guardian having any of the following powers:
(i) Executing a do-not-resuscitate order.
(ii) Executing a physician orders for scope of treatment form.
(iii) Consenting to any medical treatment.
(iv) Consenting to placement decisions, including moving the individual to a nursing facility or adult foster care home.
(v) Choosing whether the individual can marry or divorce.
(vi) Handling any financial and property matters, including the sale or disposal of personal property and the maintenance of real property.
(e) Identify whether the individual objects to the particular person proposed as guardian, if any.
(f) If a guardian were to be appointed, identify a list of whom the individual would want to serve, in order of preference.
(g) If a guardian were to be appointed, identify whom the individual would not want to serve.
(3) Subject to subsections (4) and (5), a guardian ad litem appointed for an individual alleged to be incapacitated or a legally incapacitated individual shall file a written report with the court and in the form required by the state court administrative office.
(4) If an individual who is subject to an initial petition under this part, petition to terminate under this part, or petition to modify under this part contests the petition, the guardian ad litem's written report required under subsection (3) must include only the following:
(a) That the individual contests the petition.
(b) Whether the individual has retained legal counsel or wishes for legal counsel to be appointed.
(c) Whether the individual has any barriers to attending court at the place where it is usually held.
(d) If a guardian were appointed, who the individual would want to serve in order of preference.
(e) If a guardian were appointed, who the individual would not want to serve.
(f) Any other information the guardian ad litem determines would be helpful to the court in ruling on the petition.
(5) If an individual who is subject to an initial petition under this part, petition to terminate under this part, or petition to modify under this part does not contest the petition, the guardian ad litem's report required under subsection (3) must include only the following:
(a) The date and time the guardian ad litem met with the individual.
(b) The length of time the guardian ad litem met with the individual.
(c) The location where the guardian ad litem met with the individual.
(d) Whether the guardian ad litem was able to meaningfully communicate with the individual and any barriers to communication.
(e) Who, if anyone, was present for the interview besides the individual.
(f) Whether the individual wishes to be present at the hearing. If the individual wishes to be present at the hearing but has a barrier to fully participating, the guardian ad litem must include in the written report whether the barrier can be resolved by moving the location of the hearing or using assistive technology, or both, or other support.
(g) Whether the individual has identified a plan for how the individual will attend.
(h) Whether the individual plans to retain legal counsel or has requested appointed legal counsel. If the individual has not indicated he or she wishes to be represented by legal counsel, the guardian ad litem shall include in the written report a recommendation as to whether legal counsel should be appointed to represent the individual.
(i) Whether the individual has any of the following:
(i) A power of attorney with or without limitations on purpose, authority, or time period.
(ii) A patient advocate designation.
(iii) A physician orders for scope of treatment form.
(iv) A benefits payee, trustee, or other fiduciary.
(j) Whether a disagreement or dispute related to the petition might be resolved through court-ordered mediation.
(k) Whether the appointment of a visitor with appropriate knowledge, training, and education such as a social worker, mental health professional, or medical professional could provide the court with the information on whether alternatives to guardianship or a limited guardianship is appropriate.
(l) If a guardian were appointed, who the individual would want to serve in order of preference.
(m) If a guardian were appointed, who the individual would not want to serve.
(n) An estimate of the liquid assets as that term is defined in section 5314, income, real property, and a description of personal property to the extent known after reasonable inquiry.
(o) Any other information the guardian ad litem determines would be helpful to the court in ruling on the petition.
(6) If a guardian ad litem is appointed for any purpose other than an initial petition under this part, petition to terminate under this part, or petition to modify under this part, the guardian ad litem must provide a written report to the court that includes, at a minimum, the information described in subsection (4) or (5), as applicable, and any other information required by law. A special limited guardian ad litem appointed under subsection (13) is not required to provide a written report unless ordered to do so by the court under subsection (13).
(7) A guardian ad litem shall file the report required under subsection (3) with the court and serve it on all interested persons at least 5 days before the date of the hearing. The court may order the report to be filed and served less than 5 days before the hearing only if the petition is made on an emergency basis under section 5312.
(8) The court may receive into evidence without testimony the written report of the guardian ad litem required under subsection (3) if the report is filed with the court and served on all interested persons not less than 5 days before the hearing. The guardian ad litem is required to report findings until the date of the termination of the guardian ad litem. The court may issue on its own initiative, or any interested person may secure, a subpoena to compel the preparer of the report to testify. On request of any interested person, the court shall issue a subpoena to compel the preparer of the report to testify.
(9) The court shall not order compensation of the guardian ad litem unless the guardian ad litem states in the guardian ad litem's written report that the guardian ad litem complied with subsections (2) to (7), as applicable.
(10) The court shall not appoint a person that was previously appointed as guardian ad litem as legal counsel for the individual if the guardian ad litem's report under subsection (3) or recommendation to the court conflicts with the wishes of the individual.
(11) If an individual who is subject to a petition under this part has not already secured legal counsel, the court shall appoint legal counsel if any of the following apply:
(a) The individual requests legal counsel.
(b) The individual objects to any part of the petition for guardianship or potential authority of a guardian.
(c) The guardian ad litem determines it is in the individual's best interest to have legal counsel if legal counsel has not been secured. If the individual who is subject to the petition is indigent, this state shall bear the expense of appointed legal counsel under this subsection.
(12) If an individual who is subject to a petition under this part has legal counsel appointed or retained, the appointment of a guardian ad litem terminates. The report of the guardian ad litem must not be admitted into evidence after the appearance or appointment of legal counsel for the individual who is subject to the petition.
(13) After appointment or retention of legal counsel for the individual who is subject to the petition under this part, the court may, for good cause shown, appoint a special limited guardian ad litem to provide information on a narrowly defined issue that will likely otherwise be inadequately addressed. A special guardian ad litem is exempt from subsections (2) to (6). The court may order that a special limited guardian ad litem appointed under this subsection provide a written report. The report under this subsection must contain the information the court considers necessary to adequately address the issue leading to the appointment of the special limited guardian ad litem. A special limited guardian ad litem shall not communicate directly with the individual who is subject to the petition and must instead communicate through legal counsel to the individual who is subject to the petition, unless legal counsel otherwise gives consent.
(14) An individual alleged to be incapacitated has the right to retain legal counsel of his or her choice at any stage, regardless of findings regarding his or her capacity. Retained legal counsel shall file a substitution of legal counsel or a motion to substitute if legal counsel has already been appointed. Retained legal counsel is entitled to reasonable attorney fees.
Sec. 5314. (1) 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 Subject to section 5314a, 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 Subject to section 5314a, the guardian shall notify the court within not later than 14 days of after a change in the ward's place of residence or a change in the guardian's place of residence. All of the following apply to the duty of the guardian to visit the ward:
(i) The guardian shall visit the ward in person not later than 1 month after the guardian's appointment and not less than once within 3 months after each in-person visit. The guardian shall also visit the ward using both audio and video technology, or if that technology is not available, only audio means, each month in which an in-person visit does not occur. If the ward is unable to communicate using audio and visual or audio-only means, the guardian shall communicate with the ward's caregivers or any other party who is familiar with the ward's circumstances and can apprise the guardian of the ward's needs and progress. If the guardian determines that audio and visual visits or audio-only visits are not possible or that the ward is unable to communicate through audiovisual means, the records the guardian must maintain must also identify the circumstances that required the guardian to rely on an audio-only visit or that required the guardian to consult with caregivers or others instead of communicating directly with the ward. The guardian shall maintain records relating to the date, time, duration, and significant information for each required visit. The guardian shall make the records available for the court's review and for review of interested persons.
(ii) If the guardian is a limited guardian, the visitation duties described in subparagraph (i) apply. However, the limited guardian may seek approval from the court to conduct audiovisual or audio-only visits less often than monthly in the months in which the limited guardian is not visiting in person. The court may grant the request if the court finds on the record that monthly audiovisual or audio-only visits in the months in which an in-person visit is not occurring are not necessary for the individual's well-being and best interests and identifies on the record the individual's circumstances that led to that finding.
(iii) If the guardian is not a professional guardian, the guardian may delegate the required in-person visits under subparagraph (i) to another person. The guardian shall communicate with the person who conducted the in-person visit and maintain records regarding the information shared by the person who conducted the visit.
(iv) If the guardian is a professional guardian and the professional guardian employs 2 or more employees who hold a license issued under part 5A of this article, the designated decision maker under section 5313(4) shall not delegate the required in-person visits under subparagraph (i) to another person. The designated decision maker may delegate the required audio-visual or audio-only visits under subparagraph (i) to another licensed employee only if the designated decision maker is unavailable to conduct the audio-visual or audio-only visits. If the designated decision maker delegates a visit requirement to another licensed employee as allowed under this subparagraph, the licensed employee who conducts the visit must prepare and submit a written report consistent with the requirements under subparagraph (i) to the designated decision maker.
(v) If the guardian is an individual professional guardian, the professional guardian shall not delegate the required in-person visits under subparagraph (i) to another person.
(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. The guardian shall make a reasonable effort to identify a reasonable number of items of personal or sentimental value, including, but not limited to, family heirlooms, photo albums, and collections. Not later than 56 days after appointment, the guardian shall serve on all interested persons a list of the identified items. The list must be signed by the guardian and include an attestation that states, "I represent this list is true and correct to the best of my knowledge, information, and belief at the time of signing. I understand that I must handle this property, like all of the ward's property for which I am responsible, consistent with my fiduciary duties. This may include sale, disposal, or other actions to meet my fiduciary duties. I am not responsible for storing any items at my own expense.". 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), execute a nonopioid directive form under subdivision (f), or execute a physician orders for scope of treatment form under subdivision (g) 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 nonopioid directive form on behalf of a ward.
(g) 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.
(h) If a guardian executes a physician orders for scope of treatment form under subdivision (f), (g), 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.
(i) If a conservator for the ward's estate is not appointed, the power to do any all of the following:
(i) Institute The power to 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 The power to 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.
(iii) The duty to allow interested persons to review proofs of income and disbursements at a time reasonably convenient to the guardian and interested persons.
(j) 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 nonopioid directive form on behalf of the ward during the past year.
(viii) 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.
(ix) Services received by the ward.
(x) A list of the guardian's visits with, and activities on behalf of, the ward.
(xi) A recommendation as to the need for continued guardianship.
(k) 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.
(2) If a conservator has not been appointed for the ward, and if the ward's qualified estate is greater than 400% of the federal poverty level, the guardian must file a petition for conservatorship under part 4. This subsection does not prevent the appointment of a conservator for the ward if the ward's qualified estate is less than 400% of the federal poverty level. As used in this subsection:
(a) "Federal poverty level" means the poverty guidelines published annually in the federal register by the United States Department of Health and Human Services under its authority to revise the poverty line under 42 USC 9902.
(b) "Liquid assets" means assets that can easily be converted into cash in a short amount of time. Liquid assets includes, but is not limited to, cash, checking and savings accounts, money market instruments, certificates of deposit, mutual funds held in a taxable account, marketable securities, bonds, and the monetary value of life or other insurance. A retirement account is considered a liquid asset once the individual's circumstances allow him or her to withdraw cash without facing any Internal Revenue Service early withdrawal penalties.
(c) "Ward's qualified estate" means, except as otherwise provided in subdivision (d), the ward's liquid assets or income, or both, reported by the guardian ad litem under section 5305 or later discovered by the guardian.
(d) Ward's qualified estate does not include liquid assets or income that is subject to some oversight such as a representative payee, durable power of attorney, joint ownership, trust, or other protection.
Sec. 5314a. (1) The guardian shall maintain a legally incapacitated individual in the legally incapacitated individual's permanent residence if possible and consistent with the well-being and preferences of the legally incapacitated individual. If a legally incapacitated individual is removed from his or her permanent residence temporarily for any reason, the guardian must make all reasonable efforts to return the legally incapacitated individual to his or her permanent residence at the earliest opportunity consistent with the legally incapacitated individual's wishes. Temporary removal of the legally incapacitated individual from his or her permanent residence for the purpose of receiving health care or supervision, for engaging in family or social activities, or for other reasons including the well-being or convenience of the legally incapacitated individual does not relieve the guardian of the obligations set forth in this section regarding permanent removal from the permanent residence. A guardian shall not primarily consider the guardian's own convenience or benefit when making a decision to remove the legally incapacitated individual from the legally incapacitated individual's permanent residence or selecting a new residence for the legally incapacitated individual.
(2) A guardian shall explore reasonably available and affordable supports and services that could enable the legally incapacitated individual to remain in his or her permanent residence.
(3) If a guardian proposes to move the legally incapacitated individual from his or her permanent residence, the guardian must attempt to consult with the legally incapacitated individual and honor the legally incapacitated individual's preference to the greatest extent possible.
(4) In exercising the guardian's power to establish the legally incapacitated individual's place of residence, the guardian shall do both of the following:
(a) Select a residential setting the guardian believes the legally incapacitated individual would select if the legally incapacitated individual were able. If the guardian does not know and cannot reasonably determine what setting the legally incapacitated individual would likely select, or the guardian reasonably believes the decision the legally incapacitated individual would make would unreasonably harm or endanger the welfare or personal or financial interests of the legally incapacitated individual, the guardian must choose a residential setting that is consistent with the legally incapacitated individual's best interest.
(b) Give priority to a residential setting in a location that will allow the legally incapacitated individual to interact with persons and participate in activities important to the legally incapacitated individual and meet the legally incapacitated individual's needs in the least restrictive manner reasonably feasible.
(5) If a guardian that is not a professional guardian removes a legally incapacitated individual from the legally incapacitated individual's permanent residence to another location in this state, the guardian must notify the court in writing not later than 14 days after the removal. The notification required under this subsection must include the address of the new permanent residence.
(6) A guardian shall not move the legally incapacitated individual out of state without order of the court. If the guardian petitions to move the legally incapacitated individual out of state, a guardian ad litem must be appointed and the court shall schedule a hearing regardless of whether the individual files objections or expresses dissatisfaction with the proposed move. If the legally incapacitated individual files objections or expresses dissatisfaction with the proposed move, the court must appoint legal counsel if the legally incapacitated individual is not already represented by legal counsel.
(7) Subject to subsections (9) and (10), and except as otherwise provided in subsection (14), a professional guardian shall not permanently remove a legally incapacitated individual from the legally incapacitated individual's permanent residence unless, subject to subsection (8), the professional guardian files a petition under this subsection and the court grants the petition under subsection (13). A petition under this subsection must be separate from the petition for a finding of incapacity and appointment of guardian under section 5303. A petition under this subsection must include all of the following information:
(a) The individual's current permanent residence.
(b) The proposed new residence.
(c) The reason for the proposed move.
(d) Whether the move is to a more or less restrictive setting.
(e) The efforts made or resources explored to enable the individual to remain in his or her current permanent residence.
(f) Whether the guardian has engaged in meaningful communication with the individual about the proposed move.
(g) Whether the individual objects to or supports the proposed move.
(8) If the person petitioning for guardianship under section 5303 proposes or anticipates that a professional guardian will be appointed under section 5306, the petitioner or any interested person that believes that it is necessary for the well-being of the alleged incapacitated individual to move the individual permanently from his or her permanent residence may file a petition under subsection (7) seeking authority for a professional guardian, if appointed under section 5306, to permanently remove the alleged incapacitated individual from his or her permanent residence.
(9) If a professional guardian determines that to protect the health, safety, or welfare of the legally incapacitated individual, it is necessary to move the legally incapacitated individual from his or her permanent residence to a another residence the professional guardian intends to be permanent before obtaining court approval under subsection (13), the professional guardian may move the legally incapacitated individual. Not later than 14 days after moving the legally incapacitated individual as allowed under this subsection, the professional guardian must file a petition under subsection (7). The petition must include the circumstances that the professional guardian determined were necessary to move the legally incapacitated individual before filing a petition under subsection (7).
(10) If, after a temporary stay in a health care facility or at a residence the professional guardian initially intended to be temporary, the professional guardian determines that it is necessary to change to the permanent residence of the legally incapacitated individual, the professional guardian must, not later than 14 days after making the determination, file a petition under subsection (7). The petition must include the circumstances underlying the professional guardian's determination.
(11) If a petition for removal from the permanent residence has been filed under subsection (7), the court shall promptly appoint a guardian ad litem and hold the hearing not later than 28 days after the petition is filed. The guardian ad litem must, in addition to the other duties set forth in section 5305, do all of the following:
(a) Advise the individual that a petition has been filed to move the individual from his or her permanent residence to the new residence identified in the petition or another location the court determines is appropriate.
(b) Explain that if the court grants the petition to move the individual, the guardian will have the authority to change the individual's permanent residence to the location specified in the petition or to another location the court determines is appropriate.
(c) Ascertain, if possible, the wishes of the individual to remain in his or her permanent residence.
(d) Include a summary of the discussion in the guardian ad litem's written report.
(12) If the alleged incapacitated individual or legally incapacitated individual does not already have legal counsel, the court must appoint legal counsel if the individual files an objection to the petition for authority to move the individual from his or her permanent residence under subsection (7) or if the guardian ad litem's report under subsection (11) states that the individual objects to being removed from his or her permanent residence.
(13) The court shall not grant a petition for removal from the permanent residence under subsection (7) unless the court, after due consideration and opportunity for testimony on the matter, determines by clear and convincing evidence that moving the legally incapacitated individual from the permanent residence to the residence identified in the petition is 1 or more of the following:
(a) Necessary to protect the individual's physical health, safety, or welfare.
(b) Consistent with the individual's wishes.
(14) If the legally incapacitated individual must leave the permanent residence because the residence becomes permanently unavailable, the professional guardian must provide at least 14 days' prior written notice to the legally incapacitated individual if possible under the circumstances or, if less time is available before the legally incapacitated individual must move, notice at the earliest opportunity. The professional guardian shall provide written notice to the court and all interested persons not later than 14 days after the move under this subsection explaining why the permanent residence is no longer available, whether the professional guardian attempted to consult with the legally incapacitated individual about where the legally incapacitated individual wanted to move, whether the professional guardian honored the legally incapacitated individual's preferences regarding where he or she wanted to move, the address of the new residence, the type of residence, and how the new residence will meet the legally incapacitated individual's needs. If the legally incapacitated individual's residence becomes permanently unavailable, the professional guardian is not required to file a petition under subsection (7) and the court is not required to appoint a guardian ad litem or legal counsel or hold a hearing. For purposes of this subsection, a residence becomes permanently unavailable as a result of a facility closure, removal of the property from the rental market, involuntary discharge, notice to quit, or eviction that cannot be appropriately resolved by the professional guardian, irreparable damage to the permanent residence, or other circumstances that are not initiated by the professional guardian but necessitate the permanent removal of the legally incapacitated individual from his or her permanent residence.
(15) If removal from the permanent residence necessitates the sale, transfer, or disposal of real property or sentimental personal property and if meaningful communication is possible, the guardian must consult with the legally incapacitated individual before taking any action to dispose of the property. A guardian shall make all reasonable efforts to identify and honor the legally incapacitated individual's wishes to preserve sentimental personal property in the overall context of the legally incapacitated individual's estate, including items identified in the inventory under section 5314, and shall take reasonable steps to safeguard that personal property. The court may remove a guardian that fails to comply with this subsection.
(16) As used in this section, "permanent residence" means any of the following:
(a) The location the allegedly incapacitated individual or legally incapacitated individual uses as a permanent address, in which most of the individual's possessions are maintained.
(b) The location the allegedly incapacitated individual or legally incapacitated individual considers to be his or her home.
Sec. 5406. (1) Upon On receipt of a petition for a conservator's appointment or another protective order because of minority, the court shall set a date for hearing. If, at any time in the proceeding, the court determines that the minor's interests are or may be inadequately represented, the court may appoint an attorney to represent the minor, giving consideration to the minor's choice if 14 years of age or older. An attorney appointed by the court to represent a minor has the powers and duties of a guardian ad litem.
(2) Upon On receipt of a petition for a conservator's appointment or another protective order for a reason other than minority, the court shall set a date for initial hearing. Unless the individual to be protected has chosen legal counsel, or is mentally competent but aged or physically infirm, the court shall appoint a guardian ad litem. to represent the person in the proceeding. If the alleged disability is mental illness, mental deficiency, physical illness or disability, chronic use of drugs, or chronic intoxication, the court may direct that the individual alleged to need protection be examined by a physician or mental health professional appointed by the court, preferably a physician or mental health professional who is not connected with an institution in which the individual is a patient or is detained. The individual alleged to need protection has the right to secure an independent evaluation at his or her own expense. The court may send a visitor to interview the individual to be protected. The visitor may be a guardian ad litem or a court officer or employee.
(3) The court may utilize, as an additional visitor, the service of a public or charitable agency to evaluate the condition of the individual to be protected and make appropriate recommendations to the court.
(4) A guardian ad litem, physician, mental health professional, or visitor appointed under this section who meets with, examines, or evaluates an individual who is the subject of a petition in a protective proceeding shall do all of the following:
(a) Consider whether there is an appropriate alternative to a conservatorship.
(b) If a conservatorship is appropriate, consider the desirability of limiting the scope and duration of the conservator's authority.
(c) Report to the court based on the considerations required in subdivisions (a) and (b).
(5) Subject to subsection (6), the duties of a guardian ad litem appointed under subsection (2) for an individual alleged to need protection include all of the following:
(a) Impartially gather information as provided by law.
(b) Seek information from the individual and, if communication is possible, communicate in a manner the individual is best able to understand. If communication is not possible or there is a barrier to communication, the guardian ad litem must note that in the report.
(c) Interview the individual in person at the individual's location and out of the presence of any interested person.
(d) Advise the individual that the guardian ad litem does not represent the individual as an attorney and that no attorney-client relationship has been created.
(e) Identify whether the individual wishes to be present at the hearing. If the individual alleged to need protection does not wish to be present at the hearing, the guardian ad litem shall identify the reasons why the individual does not wish to be present.
(f) Identify any barrier to attending hearings at the place where court is held or otherwise fully participating in the hearing, including the need for assistive technology, transportation, or other support. If the individual alleged to need protection wishes to attend, the guardian ad litem must identify whether the individual has identified a plan for how the individual will attend.
(g) Identify whether the individual plans to retain legal counsel or wants appointed legal counsel. If the individual alleged to need protection does not plan to retain legal counsel or request appointed legal counsel, the guardian ad litem must make a recommendation as to whether legal counsel should be appointed.
(h) Identify whether a disagreement or dispute related to the petition might be resolved through court-ordered mediation.
(6) The duties of a guardian ad litem appointed for an individual alleged to need protection or a protected individual include all of the following, as applicable:
(a) Explain to the individual the nature, purpose, and legal effects of a conservator's appointment or issuance of a protective order.
(b) Explain who has filed the petition and who, if anyone, has been nominated as conservator, if applicable.
(c) Explain to the individual the hearing procedure and the individual's rights in the hearing procedure, including, but not limited to, the following:
(i) The right to contest the petition, in whole or in part.
(ii) The right to request limits on the conservator's powers.
(iii) The right to be present at the hearing. If the individual is unable to attend the hearing at the location court proceedings typically are held, the guardian ad litem shall inform the individual of his or her right to have the hearing at another location.
(iv) The right to request a reasonable accommodation to allow the individual to participate as fully as possible at the hearing, including with assistive technology or other support.
(v) The right to be represented by legal counsel of the individual's choice. If the individual is unable to secure legal counsel of his or her choice, the guardian ad litem shall explain to the individual that he or she has the right to have legal counsel appointed by the court.
(vi) The right to request an independent medical evaluation.
(d) Explain to the individual that if a conservator is appointed, the conservator may have the power to take certain actions on behalf of the individual. A guardian ad litem must inform the individual that a conservator may have any of the powers described in section 5407 and, if meaningful communication is possible, discern if the individual objects to a conservator having any of those powers.
(e) Identify whether the individual objects to the particular person proposed as conservator, if any.
(f) If a conservator were to be appointed, identify a list of who the individual would want to serve, in order of preference.
(g) If a conservator were to be appointed, identify who the individual would not want to serve.
(7) A guardian ad litem appointed for an individual alleged to need protection or a protected individual shall file a written report with the court in the form required by the state court administrative office.
(8) If an individual who is subject to an initial petition under this part, petition to terminate under this part, or petition to modify under this part contests the petition, the guardian ad litem's written report required under subsection (7) must include only the following:
(a) That the individual contests the petition.
(b) Whether the individual has retained legal counsel or wishes for legal counsel to be appointed.
(c) Whether the individual has any barriers to attending court at the place where it is usually held.
(9) If an individual who is subject to an initial petition under this part, petition to terminate under this part, or petition to modify under this part does not contest the petition, the guardian ad litem's written report required under subsection (7) must include only the following:
(a) The date and time the guardian ad litem met with the individual.
(b) The length of time the guardian ad litem met with the individual.
(c) The location where the guardian ad litem met with the individual.
(d) Whether the guardian ad litem was able to meaningfully communicate with the individual and any barriers to communication.
(e) Who, if anyone, was present for the interview besides the individual.
(f) Whether the individual wishes to be present at the hearing. If the individual wishes to be present at the hearing but has a barrier to fully participating, the guardian ad litem must include in the written report whether the barrier can be resolved by moving the location of the hearing or using assistive technology, or both, or other support.
(g) Whether the individual has identified a plan for how the individual will attend.
(h) Whether the individual plans to retain legal counsel or has requested appointed legal counsel. If the individual has not indicated he or she wishes to be represented by legal counsel, the guardian ad litem shall include in the written report a recommendation as to whether legal counsel should be appointed to represent the individual.
(i) Whether the individual has any of the following:
(i) A power of attorney with or without limitations on purpose, authority, or time period.
(ii) A patient advocate designation.
(iii) A physician orders for scope of treatment form.
(iv) A benefits payee, trustee, or other fiduciary.
(j) Whether a disagreement or dispute related to the conservatorship petition might be resolved through court-ordered mediation.
(k) Whether the appointment of a visitor with appropriate knowledge, training, and education such as a social worker, mental health professional, or medical professional could provide the court with the information on whether alternatives to conservatorship or a limited conservatorship under section 5419(1) is appropriate.
(l) For an initial petition under this part, if a conservator were appointed, who the individual would want to serve in order of preference.
(m) For an initial petition under this part, if a conservator were appointed, who the individual would not want to serve.
(n) An estimate of the liquid assets as that term is defined in section 5314, income, real property, and a description of personal property to the extent known after reasonable inquiry.
(10) If a guardian ad litem is appointed for any purpose other than an initial petition under this part, petition to terminate under this part, or petition to modify under this part, the guardian ad litem must provide a written report to the court that includes, at a minimum, the information described in subsection (5), (6), (8), or (9), as applicable, and any other information required by law. A special limited guardian ad litem appointed under subsection (16) is not required to provide a written report unless ordered to do so by the court.
(11) The court may receive into evidence without testimony the written report of the guardian ad litem required under subsection (7) if the report is filed with the court and served on all interested persons not less than 5 days before the hearing. The guardian ad litem is required to report findings until the date of the termination of the guardian ad litem. The court may issue on its own initiative, or any interested person may secure, a subpoena to compel the preparer of the report to testify. On request of any interested person, the court must issue a subpoena to compel the preparer of the report to testify.
(12) A guardian ad litem shall file any report required under this section with the court and serve the report on all interested persons at least 5 days before the hearing. The court shall not order compensation of the guardian ad litem unless the guardian ad litem states in the guardian ad litem's written report that the guardian ad litem complied with this subsection.
(13) The court shall not appoint a guardian ad litem as legal counsel for the individual if the guardian ad litem's report under subsection (7) or recommendation to the court conflicts with the wishes of the individual.
(14) If an individual who is subject to a petition under this part has not already secured legal counsel, the court shall appoint legal counsel if any of the following apply:
(a) The individual who is subject to the petition requests legal counsel.
(b) The individual who is subject to the petition objects to any part of the petition for conservatorship or potential authority of a conservator.
(c) The guardian ad litem determines it is in the best interest of the individual subject to the petition to have legal counsel and, if legal counsel has not been secured, the court shall appoint legal counsel. If the individual who is subject to the petition is indigent, this state shall bear the expense of appointed legal counsel.
(15) If an individual who is subject to a petition under this part has legal counsel appointed or retained, the appointment of a guardian ad litem terminates. The report of the guardian ad litem under subsection (7) must not be admitted into evidence after the appearance or appointment of legal counsel for the individual who is subject to the petition.
(16) After appointment or retention of legal counsel for the individual who is subject to the petition under this part, the court may, for good cause shown, appoint a special limited guardian ad litem to provide information on a narrowly defined issue that will likely otherwise be inadequately addressed. A special guardian ad litem is exempt from subsections (5) to (10). The court may order that a special limited guardian ad litem provide a written report. The report under this subsection must contain the information the court considers necessary to adequately address the issue leading to the appointment of the special limited guardian ad litem. A special limited guardian ad litem shall not communicate directly with the individual who is subject to the petition and must instead communicate through legal counsel to the individual who is subject to the petition, unless legal counsel otherwise gives consent.
(17) (5) The individual to be protected is entitled to be present at the hearing in person. If the individual wishes to be present at the hearing, all practical steps must be taken to ensure the individual's presence including, if necessary, moving the site of the hearing. The individual is entitled to be represented by legal counsel, to present evidence, to cross-examine witnesses, including a court-appointed physician or other qualified person and a visitor, and to trial by jury. The issue may be determined at a closed hearing or without a jury if the individual to be protected or legal counsel for the individual so requests.
(18) (6) Any person may request for permission to participate in the proceeding, and the court may grant the request, with or without hearing, upon on determining that the best interest of the individual to be protected will be served by granting the request. The court may attach appropriate conditions to the permission.
(19) (7) After hearing, upon on finding that a basis for a conservator's appointment or another protective order is established by clear and convincing evidence, the court shall make the appointment or other appropriate protective order.
Sec. 5417. (1) Within Not later than 56 days after appointment or within another time period specified by court rule, a conservator shall prepare and file with the appointing court a complete inventory of the estate subject to the conservatorship together with an oath or affirmation that the inventory is believed to be complete and accurate so far as information permits. The conservator shall serve on interested persons, along with the inventory, account statements with account numbers redacted that reflect the value of depository and investment accounts dated not later than 30 days after the inventory's date. The conservator shall provide a copy of the inventory to the protected individual if the individual can be located and is 14 years of age or older and to interested persons as specified in the Michigan court rules.
(2) The conservator must keep suitable records of the administration and exhibit those records on the request of an interested person.
(3) The conservator must make reasonable efforts to identify on the inventory under subsection (1) a reasonable number of items of special personal or sentimental value, including, but not limited to, family heirlooms, photo albums, or collections. To the extent meaningful conversation permits, the conservator must make an inquiry with the protected individual as to what items the protected individual identifies as having special personal or sentimental value. If the conservator is unable to locate an item identified as having special personal or sentimental value at the time of filing the inventory under subsection (1), the conservator must state that on the inventory. The inventory must be signed by the conservator and include an attestation that states, "I represent this list is true and correct to the best of my knowledge, information, and belief at the time of signing. I understand that I must handle this property, like all of the protected individual's property, consistent with my fiduciary duties. This may include sale, disposal, or other actions to meet my fiduciary duties. I am not responsible for storing any items at my expense.". A conservator shall make all reasonable efforts to identify and honor the protected individual's wishes to preserve items of special personal or sentimental value in the overall context of the protected individual's estate, including items identified in the inventory and annual accounts, and shall take reasonable steps to safeguard the property. The court may remove a conservator that fails to comply with this subsection. This subsection does not apply to a financial institution appointed as a professional conservator.
(4) The inventory under subsection (1) must list any merchandise, funeral services, cemetery services, or prepaid contracts for which the protected individual or conservator is the contract buyer or contract beneficiary under the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235. If the conservatorship estate includes assets described in this subsection, the conservator must file all of the following with the inventory under subsection (1):
(a) A copy of any prepaid contract under the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235.
(b) Proof that payments made under a prepaid contract are held in escrow or under a trust agreement in compliance with the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235.
(c) The most recent escrow statement issued concerning the prepaid contract.
(d) Proof of any assignments of life policies or annuity contracts made to purchase merchandise, funeral services, or cemetery services under the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235, under subsection (1) must list property with reasonable detail and the type and amount of any encumbrance.
(5) The inventory under subsection (1) must be served on all interested persons. Any interested person may file an objection to the inventory with the court and serve the objection on all other interested persons. The court shall set the matter for hearing.
Sec. 5418. (1) A conservator shall account to the court for administration of the trust not less than annually unless the court directs otherwise, upon resignation or removal, and at other times as the court directs. On The conservator shall serve on interested persons, along with the account under this subsection, account statements with account numbers redacted that reflect the value of depository and investment accounts dated not later than 30 days after the inventory's date and receipts, invoices, or other documentation for expenses in excess of $1,000.00. The account must be in the form as provided by the state court administrative office, or substantially similar. The account must detail assets including those identified in the inventory under section 5417, debts, gross income, and expenses.
(2) Not later than 56 days after the termination of the protected individual's minority or disability, a conservator shall account to the court or to the formerly protected individual or that individual's successors. Subject to appeal or vacation within the time permitted, an order, after notice and hearing, allowing an intermediate account of a conservator adjudicates as to liabilities concerning the matters considered in connection with the accounts, and an order, after notice and hearing, allowing a final account adjudicates as to all previously unsettled liabilities of the conservator to the protected individual or the protected individual's successors relating to the conservatorship. In connection with any account, the court may require a conservator to submit to a physical check of the estate to be made in any manner the court specifies.
(3) If the conservator has disposed of or sold any of the items, the conservator must describe on the account under subsection (1) how the conservator fulfilled the conservator's duties under section 5417(3).
(4) If the protected individual's estate includes any merchandise, funeral services, cemetery services, or prepaid contracts for which the protected individual or conservator is the contract buyer or contract beneficiary under the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235, the conservator must file all of the following with the account:
(a) A copy of any prepaid contract under the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235.
(b) Proof that payments made under a prepaid contract are held in escrow or under a trust agreement in compliance with the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235.
(c) The most recent escrow statement issued concerning the prepaid contract.
(d) Proof of any assignments of life policies or annuity contracts made to purchase merchandise, funeral services, or cemetery services under the prepaid funeral and cemetery sales act, 1986 PA 255, MCL 328.211 to 328.235.
(5) (2) The conservator shall provide a copy of an account to the protected individual if the individual can be located and is 14 years of age or older and to interested persons as specified in the Michigan court rules.
(6) If the protected individual objects to an account, the court must appoint a guardian ad litem to visit the protected individual in the same manner as specified in section 5406. The court must appoint legal counsel to represent the protected individual if any of the following are met:
(a) The protected individual requests legal counsel.
(b) The guardian ad litem believes that appointment of legal counsel is in the best interest of the protected individual.
(c) The court otherwise believes it is necessary to protect the interest of the protected individual.
Enacting section 1. This amendatory act takes effect January 1, 2025.
Enacting section 2. This amendatory act does not take effect unless all of the following bills of the 102nd Legislature are enacted into law:
(a) House Bill No. 4909.
(b) House Bill No. 4911.
(c) House Bill No. 4912.
(d) House Bill No. 5047.
