Bill Text: MI SB1356 | 2011-2012 | 96th Legislature | Introduced

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Bill Title: Probate; guardians and conservators; guardianship petitions; allow probate judges to schedule certain hearings prior to minor turning 18 years of age. Amends secs. 5303 & 5306 of 1998 PA 386 (MCL 700.5303 & 700.5306).

Spectrum: Slight Partisan Bill (Republican 4-2)

Status: (Introduced - Dead) 2012-11-08 - Referred To Committee On Judiciary [SB1356 Detail]

Download: Michigan-2011-SB1356-Introduced.html

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SENATE BILL No. 1356

 

 

November 8, 2012, Introduced by Senators ANDERSON, JONES, CASWELL, BIEDA, KOWALL and PAPPAGEORGE and referred to the Committee on Judiciary.

 

 

 

     A bill to amend 1998 PA 386, entitled

 

"Estates and protected individuals code,"

 

by amending sections 5303 and 5306 (MCL 700.5303 and 700.5306),

 

section 5303 as amended by 2000 PA 468 and section 5306 as amended

 

by 2004 PA 532.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 5303. (1) An individual in his or her own behalf, or any

 

person interested in the individual's welfare, may petition for a

 

finding of incapacity and appointment of a guardian. A person

 

interested in the welfare of a minor who is not less than 17 years

 

and 6 months of age may petition for a finding of incapacity and

 

appointment of guardian effective on the minor's eighteenth

 

birthday. The petition shall contain specific facts about the

 

individual's condition and specific examples of the individual's

 

recent conduct that demonstrate the need for a guardian's

 

appointment.

 

     (2) Before a petition is filed under this section, the court

 

shall provide the person intending to file the petition with

 

written information that sets forth alternatives to appointment of

 

a full guardian, including, but not limited to, a limited guardian,

 

conservator, patient advocate designation, do-not-resuscitate

 

declaration, or durable power of attorney with or without

 

limitations on purpose, authority, or time period, and an

 

explanation of each alternative.

 

     (3) Upon the filing of a petition under subsection (1), the

 

court shall set a date for hearing on the issue of incapacity. If

 

the allegedly incapacitated individual is a minor who is not less

 

than 17 years and 6 months of age, the court may set a hearing on

 

the issue of incapacity before the minor's eighteenth birthday.

 

Unless the allegedly incapacitated individual has legal counsel of

 

his or her own choice, the court shall appoint a guardian ad litem

 

to represent the person individual in the proceeding.

 

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

 

finds by clear and convincing evidence both that the individual for

 

whom a guardian is sought is an incapacitated individual and that

 

the appointment is necessary as a means of providing continuing

 

care and supervision of the incapacitated individual, with each

 

finding supported separately on the record. Alternately, the court

 

may dismiss the proceeding or enter another appropriate order.

 

     (2) The court shall grant a guardian only those powers and

 

only for that period of time as is necessary to provide for the

 

demonstrated need of the incapacitated individual. The court shall

 

design the guardianship to encourage the development of maximum

 

self-reliance and independence in the individual. If the court is

 

aware that an individual has executed a patient advocate

 

designation under section 5506, the court shall not grant a

 

guardian any of the same powers that are held by the patient

 

advocate. A court order establishing a guardianship shall specify

 

any limitations on the guardian's powers and any time limits on the

 

guardianship.

 

     (3) If the court finds by clear and convincing evidence that

 

an individual is incapacitated and lacks the capacity to do some,

 

but not all, of the tasks necessary to care for himself or herself,

 

the court may appoint a limited guardian to provide guardianship

 

services to the individual, but the court shall not appoint a full

 

guardian.

 

     (4) If the court finds by clear and convincing evidence that

 

the individual is incapacitated and is totally without capacity to

 

care for himself or herself, the court shall specify that finding

 

of fact in an order and may appoint a full guardian.

 

     (5) If an individual executed a patient advocate designation

 

under section 5506 before the time the court determines that he or

 

she became a legally incapacitated individual, a guardian does not

 

have and shall not exercise the power or duty of making medical or

 

mental health treatment decisions that the patient advocate is

 

designated to make. If, however, a petition for guardianship or for

 

modification under section 5310 alleges and the court finds that

 

the patient advocate designation was not executed in compliance

 

with section 5506, that the patient advocate is not complying with

 

the terms of the designation or with the applicable provisions of

 

sections 5506 to 5515, or that the patient advocate is not acting

 

consistent with the ward's best interests, the court may modify the

 

guardianship's terms to grant those powers to the guardian.

 

     (6) If the incapacitated individual is a minor who is not less

 

than 17 years and 6 months of age, the court may make the

 

appointment of a guardian under subsection (1) effective on the

 

minor's eighteenth birthday.