June 15, 2011, Introduced by Senators SCHUITMAKER, ROCCA, JONES, NOFS, HANSEN, HILDENBRAND, EMMONS, PROOS, KAHN and MARLEAU and referred to the Committee on Families, Seniors and Human Services.
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending sections 2802, 2803, 2804, 5305, 5306, 5314, 5315,
5316, 5410, 5422, 5423, and 5501 (MCL 700.2802, 700.2803, 700.2804,
700.5305, 700.5306, 700.5314, 700.5315, 700.5316, 700.5410,
700.5422, 700.5423, and 700.5501), section 5305 as amended by 2000
PA 464, section 5306 as amended by 2004 PA 532, section 5314 as
amended by 2000 PA 469, section 5316 as amended by 2000 PA 54, and
section 5423 as amended by 2005 PA 204, and by adding sections
5306a and 5319.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 2802. As used in this section and sections 2803 and 2804:
(a) "Abuse, neglect, or exploitation" means any of the
(i) An intentional act, the commission of which is a felony,
prohibited under chapter XXA of the Michigan penal code, 1931 PA
328, MCL 750.145m to 750.145r.
(ii) A violation of section 174a of the Michigan penal code,
1931 PA 328, MCL 750.174a.
(iii) A criminal act that is an offense involving domestic
violence as that term is defined in section 27b of chapter VIII of
the code of criminal procedure, 1927 PA 175, MCL 768.27b.
(iv) An act that constitutes child abuse under section 136b of
the Michigan penal code, 1931 PA 328, MCL 750.136b.
(v) A criminal act that constitutes abuse, neglect, or
exploitation as those terms are defined in section 11 of the social
welfare act, 1939 PA 280, MCL 400.11.
"Disposition or appointment of property" includes, but
is not limited to, a transfer of an item of property or another
benefit to a beneficiary designated in a governing instrument.
(c) "Felon" means the individual who was convicted of
committing the abuse, neglect, or exploitation.
"Governing instrument" means a governing instrument
executed by the decedent.
"Revocable" means, with respect to a disposition,
appointment, provision, or nomination, one under which the
decedent, at the time of or immediately before death, was alone
empowered, by law or under the governing instrument, to cancel the
designation in favor of the killer or felon, whether or not the
decedent was then empowered to designate himself or herself in
place of his or her killer or felon and whether or not the decedent
then had the capacity to exercise the power.
Sec. 2803. (1) An individual who feloniously and intentionally
kills or who is convicted of committing abuse, neglect, or
exploitation with respect to the decedent forfeits all benefits
under this article with respect to the decedent's estate, including
an intestate share, an elective share, an omitted spouse's or
child's share, a homestead allowance, a family allowance, and
exempt property. If the decedent died intestate, the decedent's
intestate estate passes as if the killer or felon disclaimed his or
her intestate share.
(2) The felonious and intentional killing or the conviction of
the felon for the abuse, neglect, or exploitation of the decedent
does all of the following:
(a) Revokes all of the following that are revocable:
(i) Disposition or appointment of property made by the decedent
to the killer or felon in a governing instrument.
(ii) Provision in a governing instrument conferring a general
or nongeneral power of appointment on the killer or felon.
(iii) Nomination of the killer or felon in a governing
instrument, nominating or appointing the killer or felon to serve
in a fiduciary or representative capacity, including a personal
representative, executor, trustee, or agent.
(b) Severs the interests of the decedent and killer or felon
in property held by them at the time of the killing, abuse,
neglect, or exploitation as joint tenants with the right of
survivorship, transforming the interests of the decedent and killer
or felon into tenancies in common.
(3) A severance under subsection (2)(b) does not affect a
third party interest in property acquired for value and in good
faith reliance on an apparent title by survivorship in the killer
or felon unless a writing declaring the severance has been noted,
registered, filed, or recorded in records appropriate to the kind
and location of the property that are relied upon, in the ordinary
course of transactions involving that type of property, as evidence
(4) A provision of a governing instrument is given effect as
if the killer or felon disclaimed all provisions revoked by this
section or, in the case of a revoked nomination in a fiduciary or
representative capacity, as if the killer or felon predeceased the
(5) A killer's or felon's wrongful acquisition of property or
interest not covered by this section shall be treated in accordance
with the principle that a killer or felon cannot profit from his or
(6) After all right to appeal has been exhausted, a judgment
of conviction establishing criminal accountability for the
felonious and intentional killing or the abuse, neglect, or
exploitation of the decedent conclusively establishes the convicted
individual as the decedent's killer or as a felon, as applicable,
purposes of this section.
respect to a claim of
felonious and intentional killing, in the absence of a conviction,
the court, upon the petition of an interested person, shall
determine whether, under the preponderance of evidence standard,
the individual would be found criminally accountable for the
felonious and intentional killing of the decedent. If the court
determines that, under that standard, the individual would be found
criminally accountable for the felonious and intentional killing of
the decedent, the determination conclusively establishes that
individual as the decedent's killer for purposes of this section.
(7) This section does not apply if the forfeiture, revocation,
or severance would occur because of abuse, neglect, or exploitation
and the decedent executed a governing instrument after the date of
the conviction expressing a specific intent to allow the felon to
inherit or otherwise receive the estate or property of the
Sec. 2804. (1) Except as otherwise provided in this section, a
payor or other third party is not liable for having made a payment
or transferred an item of property or another benefit to a
beneficiary designated in a governing instrument affected by an
intentional and felonious killing or by abuse, neglect, or
exploitation, or for having taken another action in reliance on the
validity of the governing instrument, upon request and satisfactory
proof of the decedent's death. A payor or other third party is
for a payment made or other action taken
3 7 or
business days after the payor or other third party actually
receives written notice of a claimed forfeiture or revocation under
section 2803. A payor or other third party is not obligated to
determine whether the decedent was the victim of felonious killing
or abuse, neglect, or exploitation or to seek evidence relating to
such a killing or abuse, neglect, or exploitation even if the
circumstances of the decedent's death are suspicious as to the
beneficiary's participation in such a killing or if there is
evidence that would raise suspicions that the decedent was the
victim of abuse, neglect, or exploitation by the beneficiary. A
recipient who incorrectly receives a payment, transfer of property,
or other benefit is liable for the payment or transfer received,
whether or not written notice of the claim is given.
(2) Written notice of a claimed forfeiture or revocation under
subsection (1) must be mailed to the payor's or other third party's
main office or home by registered or certified mail, return receipt
requested, or served upon the payor or other third party in the
same manner as a summons in a civil action. Notice to a sales
representative of a payor or other third party does not constitute
notice to the payor or other third party.
(3) The written notice under subsection (1) must include the
decedent's name, the name of the person asserting an interest, the
of the payment, item of property, or other benefit,
statement that a claim of forfeiture or revocation is being made
under section 2803, and, if the claim is based on a conviction for
abuse, neglect, or exploitation, a copy of the judgment of
conviction. Notice in a form or service in a manner other than that
described in this section does not impose liability on a payor or
other third party for an action taken in accordance with a
(4) Upon receipt of written notice of a claimed forfeiture or
revocation under this section, a payor or other third party may pay
an amount owed to the county treasurer of the county of the court
having jurisdiction of the probate proceedings relating to the
decedent's estate or, if no proceedings have been commenced, to the
county treasurer of the county of the decedent's residence. With a
payment under this section, the payor or other third party shall
file a copy of the written notice received by the payor or other
third party. A payment made to the county treasurer discharges the
payor or other third party from a claim for the value of an amount
paid to the county treasurer.
(5) The county treasurer shall not charge a filing fee for a
payment to the county treasurer under this section. The county
treasurer shall hold the money in accordance with section 3917 and,
upon the court's determination under section 2803, shall disburse
the money in accordance with the determination.
(6) The provision for payment to the county treasurer under
this section does not preclude a payor or other third party from
taking another action authorized by law or the governing
Sec. 5305. (1) The duties of a guardian ad litem appointed for
an individual alleged to be incapacitated include all of the
(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, 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 for the
individual if he or she is unable to afford legal counsel.
(d) Informing the individual of the name of each person known
to be seeking appointment as guardian.
(e) Asking the individual and the petitioner about the amount
of cash and property readily convertible into cash that is in the
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
(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 declaration, 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
(iii) Whether the individual wishes to be present at the
(iv) Whether the individual wishes to contest the petition.
(v) Whether the individual wishes limits placed on the
(vi) 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
(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. 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
what powers are granted to the guardian, any limitations on the
guardian's powers, and any time limits on the guardianship. The
incapacitated individual retains all rights and powers not
expressly or impliedly transferred to the guardian by court order.
(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
(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 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
(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
(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
(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
(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
(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
(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
(v) To, at any time, seek modification or termination of the
guardianship by informal letter to the judge, as provided in
(w) To a hearing within 28 days of requesting a review,
modification, or termination of the guardianship, as provided in
(x) To the same rights on a petition for modification or
termination of the guardianship with respect to 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
(aa) To choose the person who will serve as guardian, if the
chosen person is suitable and willing to serve, as provided in
(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
(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) To partially self-manage his or her property to encourage
self-reliance and independence, as provided in section 5316.
(2) Within 7 days after being appointed, a guardian shall
inform the ward in writing of his or her rights enumerated in this
section. The guardian shall sign and date the advice of rights
notice. The ward shall sign and date an acknowledgment that the
ward has received the advice of rights notice. The signed advice of
rights notice and acknowledgment shall be filed with the court.
Within 180 days of the effective date of the amendatory act that
added this section, the state court administrative office and the
office of services to the aging 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 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. 5314. Whenever meaningful communication is possible, a
legally incapacitated individual's guardian shall consult with the
legally incapacitated individual before making a major decision
the legally incapacitated individual.
Except as limited
To the extent a guardian of a legally incapacitated individual is
powers by the court under section 5306,
a legally incapacitated
individual's the guardian is responsible for the
ward's care, custody, and control, but is not liable to third
persons by reason of that responsibility for the ward's acts. In
particular and without qualifying the previous sentences, a
has all of the following powers and duties,
except as modified
to the extent granted by court order:
To the extent that it is consistent with the terms of an order
by a court of competent jurisdiction relating to the ward's detention
or commitment, the guardian is entitled to The custody of
person of the
guardian's ward and may the power to establish
ward's place of residence within or without this state.
The guardian shall visit the ward within 3 months after
guardian's appointment and not less than once within 3 months after
previous visit. The guardian
must shall notify the court
within 14 days of a change in the ward's place of residence.
If entitled to custody of the ward, the
guardian must 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. Without regard to custodial rights of the ward's
must 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.
A guardian may The power
to give the consent or approval
that is necessary to enable the ward to receive medical or other
professional care, counsel, treatment, or service.
If a conservator for the ward's estate is not appointed,
may the power to do any of the following:
(i) 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
(ii) 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 upon 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
guardian shall 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
must shall 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 received by the ward.
(vi) Services received by the ward.
(vii) A list of the guardian's visits with, and activities on
behalf of, the ward.
(viii) A recommendation as to the need for continued
If a conservator is appointed, the
guardian shall 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.
A To the extent
granted by the court under
section 5306, the guardian of an individual for whom a conservator
also is appointed controls the ward's custody and care and is
entitled to receive reasonable amounts for those services and for
room and board furnished to the ward as agreed upon between the
guardian and the conservator if the amounts agreed upon are
reasonable under the circumstances. The guardian may request the
conservator to expend the ward's estate by payment to a third
person or institution for the ward's care and maintenance.
(2) If a ward dies while under guardianship and a conservator
has not been appointed for the ward's estate and if the guardian
has possession of money of the deceased ward, upon petition of the
guardian and with or without notice, the court may hear a claim for
burial expenses or any other claim as the court considers
advisable. Upon hearing the claim, the court may enter an order
allowing or disallowing the claim or a part of the claim and may
provide in the order of allowance that the claim or a part of it be
paid immediately if the payment can be made without injury or
serious inconvenience to the ward's estate.
To encourage self-reliance and independence in
Except to the extent the court grants the guardian or conservator
of a legally incapacitated individual the power to control the
the court may authorize
to function may handle his
or her money or property
without the consent or supervision of the individual's guardian or
handling part of his or her money or property,
authorizing the individual to maintain maintaining an
account with a financial institution. To the extent the individual
authorized has the power to function autonomously, a person may
deal with the individual as though the individual is mentally
Sec. 5319. (1) If a court determines that the total amount of
cash and property that is readily convertible into cash in a ward's
estate exceeds the limit for administering a decedent's estate
under section 3982, adjusted for the year in which the guardian is
appointed in the manner provided under section 1210 for certain
dollar amounts applicable to decedents' estates, or if the court
determines that financial protection is required for the ward for
another reason, the court may order the guardian to petition for
the appointment of a conservator or for another protective order
for the ward's estate.
(2) If a conservator has not been appointed for a ward's
estate and the guardian determines that there is more cash or
property that is readily convertible into cash in the ward's estate
than was reported by the guardian ad litem under section
5305(1)(f), the guardian shall report the amount of the additional
cash or property to the court.
Sec. 5410. (1) The court may require a conservator to furnish
a bond. If the court determines that the value of cash and property
that is readily convertible into cash in the estate and in the
conservator's control exceeds the limit for administering a
decedent's estate under section 3982, adjusted in the manner
provided under section 1210 for the year in which the conservator
is appointed, the court shall require the conservator to furnish a
bond, unless 1 or more of the following apply:
(a) The estate contains no property readily convertible to
cash and the cash is in a restricted account with a financial
(b) The conservator has been granted trust powers under
section 4401 of the banking code of 1999, 1999 PA 276, MCL
(c) The court determines that requiring a bond would impose a
financial hardship on the estate.
(d) The court states on the record the reasons why a bond is
(2) A bond furnished under this section shall be conditioned
upon faithful discharge of all duties of the conservator's trust
according to law, with sureties as the court specifies. Unless
otherwise directed, the bond shall be in the amount of the
aggregate capital value of the estate property in the conservator's
control plus 1 year's estimated income minus the value of
securities deposited under arrangements requiring a court order for
their removal and the value of land that the fiduciary, by express
limitation of power, lacks power to sell or convey without court
authorization. Instead of sureties on a bond, the court may accept
other security for the performance of the bond, including a pledge
of securities or a mortgage of land.
Sec. 5422. (1) A person who in good faith either assists or
deals with a conservator for value in a transaction, other than
requiring a transaction that
requires a court order as
provided in section 5407 or 5423(3), is protected as if the
properly exercised the power.
The Except as provided in
subsection (3), the fact that a person knowingly deals with a
conservator does not alone require the person to inquire into the
existence of a power or the propriety of its exercise, but a
restriction on a conservator's powers that is endorsed on letters
as provided in section 5427 is effective as to third persons. A
person is not bound to see to the proper application of estate
property paid or delivered to a conservator.
(2) The protection expressed in this section extends to a
procedural irregularity or jurisdictional defect that occurs in a
proceeding leading to the issuance of letters and is not a
substitution for protection provided by a comparable provision of
the law relating to a commercial transaction or to simplifying a
transfer of securities by a fiduciary.
(3) A conservator shall record an order allowing the sale,
disposal, mortgage, or pledge of or placement of a lien on real
property under section 5423 in the records of the register of deeds
for the county in which the real estate is located. Unless the
order has been recorded or a person to whom an interest in the real
estate is transferred has been given a copy of the order, the
person is not entitled to presume that the conservator has the
power to sell or otherwise dispose of the real property, or to
mortgage, pledge, or cause a lien to be placed on the protected
individual's home, as applicable.
Sec. 5423. (1) Subject to a limitation imposed under section
5427, a conservator has all of the powers conferred in this section
and the additional powers conferred by law on trustees in this
state. In addition, a conservator of the estate of an unmarried
minor, as to whom no one has parental rights, has the powers,
responsibilities, and duties of a guardian described in section
5215 until the individual is no longer a minor or marries. The
parental rights conferred on a conservator by this section do not
preclude a guardian's appointment as provided in part 2.
(2) Acting reasonably in an effort to accomplish the purpose
of the appointment and without court authorization or confirmation,
a conservator may do any of the following:
(a) Collect, hold, or retain estate property, including land
in another state, until the conservator determines that disposition
of the property should be made. Property may be retained even
though it includes property in which the conservator is personally
(b) Receive an addition to the estate.
(c) Continue or participate in the operation of a business or
(d) Acquire an undivided interest in estate property in which
the conservator, in a fiduciary capacity, holds an undivided
(e) Invest or reinvest estate property. If the conservator
exercises the power conferred by this subdivision, the conservator
must invest or reinvest the property in accordance with the
Michigan prudent investor rule.
(f) Deposit estate money in a state or federally insured
financial institution including one operated by the conservator.
(g) Except as provided in subsection (3), acquire or dispose
of estate property, including land in another state, for cash or on
credit, at public or private sale, or manage, develop, improve,
exchange, partition, change the character of, or abandon estate
(h) Make an ordinary or extraordinary repair or alteration in
a building or other structure, demolish an improvement, or raze an
existing or erect a new party wall or building.
(i) Subdivide, develop, or dedicate land to public use; make
or obtain the vacation of a plat or adjust a boundary; adjust a
difference in valuation on exchange or partition by giving or
receiving consideration; or dedicate an easement to public use
(j) Enter for any purpose into a lease as lessor or lessee
with or without option to purchase or renew for a term within or
extending beyond the term of the conservatorship.
(k) Enter into a lease or arrangement for exploration and
removal of a mineral or other natural resource or enter into a
pooling or unitization agreement.
(l) Grant an option involving disposition of estate property or
take an option for the acquisition of property.
(m) Vote a security, in person or by general or limited proxy.
(n) Pay a call, assessment, or other amount chargeable or
accruing against or on account of a security.
(o) Sell or exercise stock subscription or conversion rights.
(p) Consent, directly or through a committee or other agent,
to the reorganization, consolidation, merger, dissolution, or
liquidation of a corporation or other business enterprise.
(q) Hold a security in the name of a nominee or in other form
without disclosure of the conservatorship so that title to the
security may pass by delivery. However, the conservator is liable
for an act of the nominee in connection with the stock so held.
(r) Insure the estate property against damage or loss or the
conservator against liability with respect to third persons.
(s) Borrow money to be repaid from estate property or
(t) Advance money for the protection of the estate or the
protected individual, and for all expense, loss, or liability
sustained in the estate's administration or because of the holding
or ownership of estate property. The conservator has a lien on the
estate as against the protected individual for such an advance.
(u) Pay or contest a claim; settle a claim by or against the
estate or the protected individual by compromise, arbitration, or
otherwise; and release, in whole or in part, a claim belonging to
the estate to the extent that the claim is uncollectible.
(v) Pay a tax, assessment, conservator's compensation, or
other expense incurred in the estate's collection, care,
administration, and protection.
(w) Allocate an item of income or expense to either estate
income or principal, as provided by law, including creation of a
reserve out of income for depreciation, obsolescence, or
or for depletion in
a mineral or timber property.
(x) Pay money distributable to a protected individual or the
protected individual's dependent by paying the money to the
distributee or by paying the money for the use of the distributee
to the distributee's guardian, or if none, to a relative or other
person having custody of the distributee.
(y) Employ a person, including an auditor, investment advisor,
or agent, even though the person is associated with the
conservator, to advise or assist in the performance of an
administrative duty; act upon the person's recommendation without
independent investigation; and, instead of acting personally,
employ an agent to perform an act of administration, whether or not
(z) Employ an attorney to perform necessary legal services or
to advise or assist the conservator in the performance of the
conservator's administrative duties, even if the attorney is
associated with the conservator, and act without independent
investigation upon the attorney's recommendation. An attorney
employed under this subdivision shall receive reasonable
compensation for his or her employment.
(aa) Prosecute or defend an action, claim, or proceeding in
any jurisdiction for the protection of estate property and of the
conservator in the performance of a fiduciary duty.
(bb) Execute and deliver an instrument that will accomplish or
facilitate the exercise of a power vested in the conservator.
(cc) Respond to an environmental concern or hazard affecting
property as provided in section 5424.
(3) A conservator shall not sell or otherwise dispose of the
protected individual's real property or interest in real property
or mortgage, pledge, or cause a lien to be placed on the protected
individual's home without approval of the court. The court shall
approve the sale,
or other disposal, mortgage, or pledge of or
lien against the real property or interest in real property if,
after a hearing with notice to interested persons as specified in
the Michigan court rules, the court considers evidence of the value
of the real property or interest in real property and otherwise
that the sale,
or other disposal, mortgage, pledge, or
lien is in the protected individual's best interest.
Sec. 5501. (1) A durable power of attorney is a power of
attorney by which a principal designates another as the principal's
in fact in a writing
and the writing that contains
words "This power of attorney is not affected by the principal's
subsequent disability or incapacity, or by the lapse of time", or
"This power of attorney is effective upon the disability or
incapacity of the principal", or similar words showing the
principal's intent that the authority conferred is exercisable
notwithstanding the principal's subsequent disability or incapacity
and, unless the power states a termination time, notwithstanding
the lapse of time since the execution of the instrument.
(2) Before exercising authority as attorney in fact under a
durable power of attorney, a person shall sign an acceptance of the
designation, acknowledging and accepting all of the following
obligations, liabilities, and rights:
(a) To act in the best interest of the principal.
(b) To keep the principal informed of the attorney in fact's
actions and account to the principal.
(c) To not make gifts of the principal's property unless
specifically authorized by the power of attorney.
(d) To be prosecuted and punished for any criminal acts.
(e) To keep the principal's assets in an account that does not
include money of the attorney in fact or another person.
(f) To only use the principal's property and income for the
benefit of the principal, unless otherwise authorized specifically
in the power of attorney.
(g) If requested, to provide an accounting at any time to the
principal, a fiduciary appointed on behalf of the principal, or the
(h) To maintain sufficient records of every transaction and be
prepared to defend each action.
(i) To be held financially responsible for any transaction
that is not specifically authorized in the power of attorney.
(j) To hire an advisor, attorney, accountant, or other
professional as reasonably required to comply with the attorney in
fact's duties and to pay for the professional's services from the
estate of the principal.
(k) Unless prohibited by the power of attorney, to receive
reasonable compensation for the attorney in fact's services, which
compensation may be subject to scrutiny by the court.
Enacting section 1. This amendatory act takes effect April 1,