December 6, 2017, Introduced by Senators MARLEAU, KNOLLENBERG, KOWALL, JONES, BOOHER, EMMONS, COLBECK, ROCCA, CASPERSON, O'BRIEN, HUNE, GREEN, ROBERTSON, STAMAS, BRANDENBURG, BIEDA, GREGORY, HERTEL, MACGREGOR, NOFS, HANSEN, HORN, HILDENBRAND and SCHMIDT and referred to the Committee on Judiciary.
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending sections 5101, 5305, 5306, 5306a, 5310, and 5507 (MCL
700.5101, 700.5305, 700.5306, 700.5306a, 700.5310, and 700.5507),
sections 5101 and 5310 as amended by 2000 PA 54, section 5305 as
amended by 2013 PA 157, section 5306 as amended by 2004 PA 532,
section 5306a as added by 2012 PA 173, and section 5507 as amended
by 2008 PA 41, and by adding part 6 to article V.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 5101. As used in parts 1 to 4 of this article:
(a) "Best interests of the minor" means the sum total of the
following factors to be considered, evaluated, and determined by
the court:
(i) The love, affection, and other emotional ties existing
between the parties involved and the child.
(ii) The capacity and disposition of the parties involved to
give the child love, affection, and guidance and to continue
educating and raising the child in the child's religion or creed,
if any.
(iii) The capacity and disposition of the parties involved to
provide the child with food, clothing, medical care or other
remedial care recognized and permitted under the laws of this state
in place of medical care, and other material needs.
(iv) The length of time the child has lived in a stable,
satisfactory environment, and the desirability of maintaining
continuity.
(v) The permanence, as a family unit, of the existing or
proposed custodial home.
(vi) The moral fitness of the parties involved.
(vii) The mental and physical health of the parties involved.
(viii) The child's home, school, and community record.
(ix) The child's reasonable preference, if the court considers
the child to be of sufficient age to express a preference.
(x) The party's willingness and ability to facilitate and
encourage a close and continuing parent-child relationship between
the child and his or her parent or parents.
(xi) Domestic violence regardless of whether the violence is
directed against or witnessed by the child.
(xii) Any other factor considered by the court to be relevant
to a particular dispute regarding termination of a guardianship,
removal of a guardian, or parenting time.
(b) "Claim" includes, in respect to a protected individual, a
liability of the protected individual, whether arising in contract,
tort, or otherwise, and a liability of the estate that arises at or
after the appointment of a conservator, including expenses of
administration.
(c) "Conservator" includes, but is not limited to, a limited
conservator described in section 5419(1).
(d) "Isolated adult" means an individual who is 18 years of
age or older, including a ward, and who has been denied visitation
with a qualified person by another person.
(e) "Qualified person" means any of the following:
(i) The spouse, child, grandchild, parent, or sibling of an
allegedly isolated adult.
(ii) An individual who has a significant and ongoing
relationship with an allegedly isolated adult.
(iii) An individual whom the allegedly isolated adult named in
his or her patient advocate designation with whom the allegedly
isolated adult would like to visit.
(f) (d)
"Visitor" means an
individual appointed in a
guardianship or protective proceeding who is trained in law,
nursing, or social work, is an officer, employee, or special
appointee of the court, and has no personal interest in the
proceeding.
Sec. 5305. (1) The duties of a guardian ad litem appointed for
an individual 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 a do-not-
resuscitate order on behalf of the ward.
(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 discerning
whether the individual objects
to having a do-not-resuscitate order executed on his or her behalf.
(e) Informing the individual of the name of each person known
to be seeking appointment as guardian.
(f) Asking the individual and the petitioner about the amount
of cash and property readily convertible into cash that is in the
individual's estate.
(g) 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 limitations
on those powers that the
guardian
ad litem believes to be 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, 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 a particular person
being appointed guardian.
(viii) With whom the individual wishes to communicate and
visit, and if the individual named another individual in a patient
advocate designation with whom the individual would like to visit
and communicate, the identity of that individual.
(ix) Whether it is appropriate for the individual to visit or
communicate with an individual described in subparagraph (viii).
(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, the 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,
the 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.
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 and to continue
the existing relationships with qualified persons. 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 must
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.
Sec. 5306a. (1) An individual for whom a guardian is sought or
has been appointed under section 5306 has all of the following
rights:
(a) To object to the appointment of a successor guardian by
will or other writing, as provided in section 5301.
(b) To have the guardianship proceeding commenced and
conducted in the place where the individual resides or is present
or, if the individual is admitted to an institution by a court, in
the county in which the court is located, as provided in section
5302.
(c) To petition on his or her own behalf for the appointment
of a guardian, as provided in section 5303.
(d) To have legal counsel of his or her own choice represent
him or her on the petition to appoint a guardian, as provided in
sections 5303, 5304, and 5305.
(e) If he or she is not represented by legal counsel, to the
appointment of a guardian ad litem to represent the individual on
the petition to appoint a guardian, as provided in section 5303.
(f) To an independent evaluation of his or her capacity by a
physician or mental health professional, at public expense if he or
she is indigent, as provided in section 5304.
(g) To be present at the hearing on the petition to appoint a
guardian and to have all practical steps taken to ensure this,
including, if necessary, moving the hearing site, as provided by
section 5304.
(h) To see or hear all the evidence presented in the hearing
on the petition to appoint a guardian, as provided in section 5304.
(i) To present evidence and cross-examine witnesses in the
hearing on the petition to appoint a guardian, as provided in
section 5304.
(j) To a trial by jury on the petition to appoint a guardian,
as provided in section 5304.
(k) To a closed hearing on the petition to appoint a guardian,
as provided in section 5304.
(l) If a guardian ad litem is appointed, to be personally
visited by the guardian ad litem, as provided in section 5305.
(m) If a guardian ad litem is appointed, to an explanation by
the guardian ad litem of the nature, purpose, and legal effects of
a guardian's appointment, as provided in section 5305.
(n) If a guardian ad litem is appointed, to an explanation by
the guardian ad litem of the individual's rights in the hearing
procedure, as provided in section 5305.
(o) If a guardian ad litem is appointed, to be informed by the
guardian ad litem of the right to contest the petition, to request
limits on the guardian's powers, to object to a particular person
being appointed guardian, to be present at the hearing, to be
represented by legal counsel, and to have legal counsel appointed
if the individual is unable to afford legal counsel, as provided in
section 5305.
(p) To be informed of the name of each person known to be
seeking appointment as guardian, including, if a guardian ad litem
is appointed, to be informed of the names by the guardian ad litem
as provided in section 5305.
(q) To require that proof of incapacity and the need for a
guardian be proven by clear and convincing evidence, as provided in
section 5306.
(r) To the limitation of the powers and period of time of a
guardianship to only the amount and time that is necessary, as
provided in section 5306.
(s) To a guardianship designed to encourage the development of
maximum self-reliance and independence as provided in section 5306.
(t) To prevent the grant of powers to a guardian if those
powers are already held by a valid patient advocate, as provided in
section 5306.
(u) To periodic review of the guardianship by the court,
including the right to a hearing and the appointment of an attorney
if issues arise upon the review of the guardianship, as provided in
section 5309.
(v) To, at any time, seek modification or termination of the
guardianship by informal letter to the judge, as provided in
section 5310.
(w) To a hearing within 28 days of requesting a review,
modification, or termination of the guardianship, as provided in
section 5310.
(x) To the same rights on a petition for modification or
termination of the guardianship including the appointment of a
visitor as apply to a petition for appointment of a guardian, as
provided in section 5310.
(y) To personal notice of a petition for appointment or
removal of a guardian, as provided in section 5311.
(z) To written notice of the nature, purpose, and legal
effects of the appointment of a guardian, as provided in section
5311.
(aa) To choose the person who will serve as guardian, if the
chosen person is suitable and willing to serve, as provided in
section 5313.
(bb) To consult with the guardian about major decisions
affecting the individual, if meaningful conversation is possible,
as provided in section 5314.
(cc) To quarterly visits by the guardian, as provided in
section 5314.
(dd) To have the guardian notify the court within 14 days of a
change in the individual's residence, as provided in section 5314.
(ee) To have the guardian secure services to restore the
individual to the best possible state of mental and physical well-
being so that the individual can return to self-management at the
earliest possible time, as provided in section 5314.
(ff) To have the guardian take reasonable care of the
individual's clothing, furniture, vehicles, and other personal
effects, as provided in section 5314.
(gg) If the individual is able to express his or her
preference, to visit and communicate with individuals of his or her
choice. If the individual is unable to express his or her
preferences, and if the individual named another individual in a
patient advocate designation with whom the individual would like to
visit and communicate, the individual has the right to visit and
communicate with that other individual.
(2) A guardian ad litem shall inform the ward in writing of
his or her rights enumerated in this section. The state court
administrative
office and the office of services to the aging and
adult services agency created in section 5 of the older
Michiganians act, 1981 PA 180, MCL 400.585, shall promulgate a form
to be used to give the written notice under this section, which
shall
must include space for the court to include information
on
how to contact the court or other relevant personnel with respect
to the rights enumerated in this section.
Sec. 5310. (1) On petition of the guardian and subject to the
filing and approval of a report prepared as required by section
5314, the court shall accept the guardian's resignation and make
any other order that is appropriate.
(2) The ward or a person interested in the ward's welfare may
petition the court for an order removing the guardian, appointing a
successor guardian, modifying the guardianship's terms, or
terminating the guardianship. A request for this order may be made
by informal letter to the court or judge. A person who knowingly
interferes with the transmission of this kind of request to the
court or judge is subject to a finding of contempt of court.
(3) Except as otherwise provided in the order finding
incapacity,
upon on receiving a petition or request under this
section, the court shall set a date for a hearing to be held within
28 days after the receipt of the petition or request. An order
finding incapacity may specify a minimum period, not exceeding 182
days, during which a petition or request for a finding that a ward
is no longer an incapacitated individual, or for an order removing
the guardian, modifying the guardianship's terms, or terminating
the
guardianship, shall must not be filed without special leave of
the court.
(4) Before removing a guardian, appointing a successor
guardian, modifying the guardianship's terms, or terminating a
guardianship, and following the same procedures to safeguard the
ward's rights as apply to a petition for a guardian's appointment,
the court may send a visitor to the present guardian's residence
and to the place where the ward resides or is detained to observe
conditions and report in writing to the court.
(5) A qualified person may petition the court for a finding
that the ward is an isolated adult and for an order of visitation
with the ward under section 5603. A qualified person may also
petition the court for an order that requires the guardian to
notify the qualified person in writing within 14 days after either
of the following events:
(a) A change of the ward's residence.
(b) The ward's admission to a hospital or skilled nursing
facility. As used in this subdivision, "skilled nursing facility"
means that term as defined in section 20109 of the public health
code, 1978 PA 368, MCL 333.20109.
Sec. 5507. (1) A patient advocate designation may include a
statement of the patient's desires on care, custody, communication
and visitation with others, and medical treatment or mental health
treatment, or both. A patient advocate designation may also include
a statement of the patient's desires on the making of an anatomical
gift of all or part of the patient's body under part 101 of the
public health code, 1978 PA 368, MCL 333.10101 to 333.10123. The
statement regarding an anatomical gift under this subsection may
include a statement of the patient's desires regarding the
resolution of a conflict between the terms of the advance health
care directive and the administration of means necessary to ensure
the medical suitability of the anatomical gift. The patient may
authorize the patient advocate to exercise 1 or more powers
concerning the patient's care, custody, medical treatment, or
mental health treatment, the making of an anatomical gift, or the
resolution of a conflict between the terms of the advance health
care directive and the administration of means necessary to ensure
the medical suitability of the anatomical gift that the patient
could have exercised on his or her own behalf.
(2) A patient may designate in the patient advocate
designation a successor individual as a patient advocate who may
exercise the powers described in subsection (1) for the patient if
the first individual named as patient advocate does not accept, is
incapacitated, resigns, or is removed.
(3) Before a patient advocate designation is implemented, a
copy of the patient advocate designation must be given to the
proposed patient advocate and must be given to a successor patient
advocate before the successor acts as patient advocate. Before
acting as a patient advocate, the proposed patient advocate must
sign an acceptance of the patient advocate designation.
(4) The acceptance of a designation as a patient advocate must
include substantially all of the following statements:
1. This patient advocate designation is not effective unless
the patient is unable to participate in decisions regarding the
patient's medical or mental health, as applicable. If this patient
advocate designation includes the authority to make an anatomical
gift as described in section 5506, the authority remains
exercisable after the patient's death.
2. A patient advocate shall not exercise powers concerning the
patient's care, custody, and medical or mental health treatment
that the patient, if the patient were able to participate in the
decision, could not have exercised on his or her own behalf.
3. This patient advocate designation cannot be used to make a
medical treatment decision to withhold or withdraw treatment from a
patient who is pregnant that would result in the pregnant patient's
death.
4. A patient advocate may make a decision to withhold or
withdraw treatment that would allow a patient to die only if the
patient has expressed in a clear and convincing manner that the
patient advocate is authorized to make such a decision, and that
the patient acknowledges that such a decision could or would allow
the patient's death.
5. A patient advocate shall not receive compensation for the
performance of his or her authority, rights, and responsibilities,
but a patient advocate may be reimbursed for actual and necessary
expenses incurred in the performance of his or her authority,
rights, and responsibilities.
6. A patient advocate shall act in accordance with the
standards of care applicable to fiduciaries when acting for the
patient and shall act consistent with the patient's best interests.
The known desires of the patient expressed or evidenced while the
patient is able to participate in medical or mental health
treatment decisions are presumed to be in the patient's best
interests.
7. A patient may revoke his or her patient advocate
designation at any time and in any manner sufficient to communicate
an intent to revoke.
8. A patient may waive his or her right to revoke the patient
advocate designation as to the power to make mental health
treatment decisions, and if such a waiver is made, his or her
ability to revoke as to certain treatment will be delayed for 30
days after the patient communicates his or her intent to revoke.
9. A patient advocate may revoke his or her acceptance of the
patient advocate designation at any time and in any manner
sufficient to communicate an intent to revoke.
10. A patient admitted to a health facility or agency has the
rights enumerated in section 20201 of the public health code, 1978
PA 368, MCL 333.20201.
PART 6
ISOLATED ADULTS
Sec. 5601. The venue for a visitation proceeding under section
5603 is in the county where the allegedly isolated adult resides or
is present.
Sec. 5603. (1) A qualified person may petition the court for a
finding that an individual who is at least 18 years of age is being
isolated from a qualified person by another individual.
(2) A petition under this section must include all of the
following:
(a) The petitioner's interest as a qualified person.
(b) The residence of the allegedly isolated adult or where he
or she is present.
(c) A statement of facts as to why the petitioner's visitation
with the allegedly isolated adult is being interfered with or
denied.
(d) The identity of any person alleged to be interfering with
or denying visitation between the petitioner and the allegedly
isolated adult under subdivision (c).
(3) In a proceeding under this section, notice of hearing must
be given to each of the following:
(a) The allegedly isolated adult.
(b) The respondent.
(4) Notice must be served personally on the allegedly isolated
adult. Notice to all other persons must be given as prescribed by
court rule.
(5) A copy of the petition under this section must be attached
to the notice of hearing.
(6) On the filing of a petition under subsection (1), the
court shall set a date for hearing on the issue of isolation.
(7) It is presumed that it is in the best interest of an
allegedly isolated adult to visit with a qualified person. The
respondent may rebut the presumption under this subsection with
clear and convincing evidence of any of the following:
(a) That the petitioner committed mental, physical, or
financial abuse against the allegedly isolated adult.
(b) That visitation between the petitioner and the allegedly
isolated adult would be harmful to the allegedly isolated adult's
health or mental well-being.
(8) If an allegedly isolated adult who is the subject of a
petition under this section objects to visitation with the
petitioner, the petitioner must demonstrate by clear and convincing
evidence that the allegedly isolated adult's objection resulted
from the respondent's undue influence over the allegedly isolated
adult. If the petitioner demonstrates clear and convincing evidence
under this subsection, the court shall grant the petitioner
reasonable visitation and notice of change in residency as provided
in subsection (9).
(9) If the court finds that the petitioner is a qualified
person, that the individual subject to a petition under this
section is an isolated adult, and that visitation between the
isolated adult and the petitioner is being denied, the court may
enter an order that does any of the following:
(a) Establishes reasonable times for the petitioner to visit
the isolated adult.
(b) Requires the respondent to notify the petitioner within 14
days after any of the following:
(i) A change in the isolated adult's residence.
(ii) The isolated adult's admission to a hospital or skilled
nursing facility. As used in this subparagraph, "skilled nursing
facility" means that term as defined in section 20109 of the public
health code, 1978 PA 368, MCL 333.20109.
(10) If the court determines that a petitioner filed a
petition under this section in bad faith, the court may assess
reasonable attorney fees incurred by the respondent and any
guardian ad litem cost against the petitioner.
(11) If the court grants the petitioner's petition, the court
may assess against the respondent any of the following:
(a) The cost of filing and serving the petition.
(b) Any cost for a guardian ad litem.
(c) Reasonable attorney fees incurred by the petitioner.
(12) As used in this section, "respondent" means an individual
alleged to have interfered with or denied visitation between an
allegedly isolated adult and a petitioner under this section.