HOUSE BILL No. 6091


     September 16, 1998, Introduced by Rep. Martinez and referred to the Committee on Judiciary.


        A bill to amend 1978 PA 642, entitled

   "Revised probate code,"

   by amending sections 447 and 455 (MCL 700.447 and 700.455), as

   amended by 1988 PA 398.

               THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 1         Sec. 447.  (1) On petition of the guardian and subject to

 2    the filing and approval of a report prepared  pursuant to  AS

 3    REQUIRED BY section  455(1)(e)  455(2)(E), the court shall accept

 4    the guardian's resignation and make any other order  which  THAT

 5    may be appropriate.

 6         (2) The ward or a person interested in the ward's welfare

 7    may petition for an order removing the guardian, appointing a

 8    successor guardian, modifying the terms of the guardianship, or

 9    terminating the guardianship.  A request for this order may be

10    made by informal letter to the court or judge.  A person who


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 1    knowingly interferes with transmission of this kind of request to

 2    the court or judge is subject to a finding of contempt of court.

 3    Except as otherwise provided in the order finding legal incapac-

 4    ity, upon receiving a petition or request, the court shall set a

 5    date for a hearing to be held within 28 days after the receipt of

 6    the petition or request.  An order finding legal incapacity may

 7    specify a minimum period, not exceeding 180 days, during which a

 8    petition or request for a finding that a ward is no longer

 9    legally incapacitated, or FOR an order removing the guardian,

10    modifying the terms of the guardianship, or terminating the

11    guardianship, may not be filed without special leave of the

12    court.

13         (3) Before removing a guardian, appointing a successor

14    guardian, modifying the terms of the guardianship, or terminating

15    a guardianship, the court, following the same procedures to safe-

16    guard the rights of the ward as apply to a petition for appoint-

17    ment of a guardian, may send a visitor to the residence of the

18    present guardian and to the place where the ward resides or is

19    detained, to observe conditions and report in writing to the

20    court.

21         Sec. 455.  (1) IN EXERCISING A GUARDIANSHIP POWER, A GUARD-

22    IAN SHALL BE GUIDED BY WISHES EXPRESSED BY THE GUARDIAN'S WARD

23    BEFORE THE WARD BECAME LEGALLY INCAPACITATED.  THIS REQUIREMENT

24    INCLUDES THE GUARDIAN'S COMPLIANCE WITH A DURABLE POWER OF ATTOR-

25    NEY OR OTHER ADVANCE DIRECTIVE.  IN ADDITION, WHENEVER MEANINGFUL

26    COMMUNICATION IS POSSIBLE, BEFORE MAKING A MAJOR DECISION

27    AFFECTING A WARD, A GUARDIAN SHALL CONSULT WITH THE WARD.



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 1         (2) Except as limited under THIS SECTION AND section

 2     444(3), a guardian of  444, a legally incapacitated  person 

 3    PERSON'S GUARDIAN is responsible for the care, custody, and con-

 4    trol of the ward, but is not liable to third persons by reason of

 5    that responsibility for THE WARD'S acts.  of the ward.  In par-

 6    ticular, and without qualifying the  foregoing  PROVISIONS OF THE

 7    PREVIOUS SENTENCE, a guardian has the following powers and

 8    duties, except as modified by COURT order:  of the court: 

 9         (a) To the extent that it is consistent with the terms of an

10    order by a court of competent jurisdiction relating to THE WARD'S

11    detention or commitment,  of the ward,  the guardian is entitled

12    to custody of the WARD'S person  of his or her ward  and may

13    establish the ward's place of residence within or without this

14    state.  The guardian shall notify the court within 14 days of

15     any  A change in the ward's place of residence.

16         (b) If entitled to custody of the ward, the guardian shall

17     make provision  PROVIDE for the WARD'S care, comfort, and main-

18    tenance  of the ward  and, when appropriate, arrange for the

19    ward's training and education.  The guardian shall  have the

20     responsibility of securing  SECURE services to restore the ward

21    to the best possible state of mental and physical well-being so

22    that the ward can return to self-management at the earliest pos-

23    sible time.  Without regard to custodial rights of the ward's

24    person, the guardian shall take reasonable care of the ward's

25    clothing, furniture, vehicles, and other personal effects and

26    commence protective proceedings if other property of the ward  is

27     in need of  NEEDS protection.



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 1         (c) A guardian may give  any  consent or approval that  may

 2     be  IS necessary to enable the ward to receive medical or other

 3    professional care, counsel, treatment, or service.

 4         (d) If a conservator for the WARD'S estate  of the ward  is

 5    not appointed, a guardian may DO ALL OF THE FOLLOWING:

 6         (i) Institute proceedings to compel a person under a duty to

 7    support the ward or to pay sums for the WARD'S welfare  of the

 8     ward  to perform that duty.

 9         (ii) Receive money and tangible property deliverable to the

10    ward and apply the money and property for THE WARD'S support,

11    care, and education.  of the ward.  The guardian may not use

12     funds  MONEY from the ward's estate for room and board  which 

13    THAT the guardian or the guardian's spouse, parent, or child have

14    furnished the ward unless a charge for the service is approved by

15    COURT order  of the court  made upon notice to at least 1 of the

16    WARD'S next of kin,  of the incompetent ward,  if notice is

17    possible.  The guardian shall exercise care to conserve any

18    excess for the ward's needs.

19         (e)  To  THE GUARDIAN SHALL report the condition of the ward

20    and of the estate  which  THAT is subject to the guardian's pos-

21    session or control, as required by the court, but not less often

22    than annually.  A  THE report shall contain all of the

23    following:

24         (i) The ward's current mental, physical, and social

25    condition.







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 1         (ii) Any improvement or deterioration in the ward's mental,

 2    physical, and social condition that has occurred during the past

 3    year.

 4         (iii) The ward's present living arrangement and  any 

 5    changes in his or her living arrangement that have occurred

 6    during the past year.

 7         (iv) Whether the guardian recommends a more suitable living

 8    arrangement for the ward.

 9         (v) Any medical treatment received by the ward.

10         (vi) Services received by the ward.

11         (vii) A list of the guardian's visits with, and activities

12    on behalf of, the ward.

13         (viii) A recommendation as to the need for continued

14    guardianship.

15         (f) If a conservator is appointed, THE GUARDIAN SHALL PAY TO

16    THE CONSERVATOR, FOR MANAGEMENT AS PROVIDED IN THIS ACT, the

17    ward's estate received by the guardian in excess of  those funds 

18    THE MONEY  expended to meet current expenses for THE WARD'S sup-

19    port, care, and education.  of the ward shall be paid to the con-

20     servator for management as provided in this act, and the  THE

21    guardian shall account to the conservator for  funds  MONEY

22    expended.

23         (3)  (2)  A guardian of a person for whom a conservator also

24    is appointed shall control the custody and care of the ward and

25    is entitled to receive reasonable sums for his or her services

26    and for room and board furnished to the ward as agreed upon

27    between the guardian and the conservator if the amounts agreed



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 1    upon are reasonable under the circumstances.  The guardian may

 2    request the conservator to expend the ward's estate by payment to

 3    third persons or institutions for the ward's care and

 4    maintenance.

 5         (4)  (3)  If a ward dies while under guardianship,  and  a

 6    conservator has not been appointed for the WARD'S estate,  of the

 7     ward,  and  if  the guardian has possession of any  money  of the

 8    deceased  ward  WARD'S MONEY, the court may, upon THE GUARDIAN'S

 9    petition  of the guardian  and with or without notice, hear a

10    claim for burial expense or any other claim as the court consid-

11    ers advisable.  Upon hearing the claim, the court may enter an

12    order allowing or disallowing the claim or any part of it and

13    provide in the order of allowance that the claim or any part of

14    it be paid immediately if the payment can be made without injury

15    or serious inconvenience to the ward's estate.



























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