HOUSE BILL No. 6094


     September 17, 1998, Introduced by Rep. Bogardus and referred to the Committee on Judiciary.


        A bill to amend 1978 PA 642, entitled

   "Revised probate code,"

   by amending sections 455, 468, and 484 (MCL 700.455, 700.468, and

   700.484), section 455 as amended by 1988 PA 398 and section 468

   as amended by 1980 PA 396.

               THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 1         Sec. 455.  (1) Except as limited under section  444(3), a

 2     guardian of  444, a legally incapacitated  person  PERSON'S

 3    GUARDIAN is responsible for the care, custody, and control of the

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

 5    responsibility for THE WARD'S acts.  of the ward.  In particular,

 6    and without qualifying the  foregoing  PROVISIONS OF THE PREVIOUS

 7    SENTENCE, a guardian has the following powers and duties, except

 8    as modified by COURT order:  of the court: 




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

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

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

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

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

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

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

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

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

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

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

12     responsibility of securing  SECURE services to restore the ward

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

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

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

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

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

18    commence protective proceedings if other property of the ward  is

19     in need of  NEEDS protection.

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

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

22    professional care, counsel, treatment, or service.

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

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

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

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

27     ward  to perform that duty.



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

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

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

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

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

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

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

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

 9    possible.  The guardian shall exercise care to conserve any

10    excess for the ward's needs.

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

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

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

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

15    following:

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

17    condition.

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

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

20    year.

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

22    changes in his or her living arrangement that have occurred

23    during the past year.

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

25    arrangement for the ward.

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





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 1         (vi) Services received by the ward.

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

 3    on behalf of, the ward.

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

 5    guardianship.

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

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

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

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

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

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

12    guardian shall account to the conservator for  funds  MONEY

13    expended.

14         (2) A guardian of a person for whom a conservator also is

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

16    entitled to receive reasonable sums for his or her services and

17    for room and board furnished to the ward as agreed upon between

18    the guardian and the conservator if the amounts agreed upon are

19    reasonable under the circumstances.  The guardian may request the

20    conservator to expend the ward's estate by payment to third per-

21    sons or institutions for the ward's care and maintenance.

22         (3) If a ward dies while under guardianship,  and  a conser-

23    vator has not been appointed for the WARD'S estate,  of the

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

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

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

27    claim for burial expense or any other claim as the court



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 1    considers advisable.  Upon hearing the claim, the court may enter

 2    an order allowing or disallowing the claim or any part of it and

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

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

 5    or serious inconvenience to the ward's estate.

 6         (4) IF A CONSERVATOR IS NOT APPOINTED FOR THE WARD'S ESTATE,

 7    A GUARDIAN SHALL NOT SELL THE WARD'S REAL PROPERTY EXCEPT AS

 8    AUTHORIZED BY THE COURT UNDER THIS SUBSECTION.  THE COURT MAY

 9    AUTHORIZE A GUARDIAN TO SELL A WARD'S REAL PROPERTY ONLY IF THE

10    COURT IS SATISFIED, AFTER NOTICE AND A HEARING, THAT THE SALE IS

11    IN THE WARD'S BEST INTERESTS AND THAT THE WARD IS INCAPABLE OF

12    CONSENTING OR HAS CONSENTED TO THE SALE.

13         Sec. 468.  (1) The court has the following powers, which may

14    be exercised directly or through a conservator, with respect to

15    the estate and affairs of protected persons:

16         (a) While a petition for appointment of a conservator or

17    other protective order is pending and after preliminary hearing

18    and without notice to others, the court may preserve and apply

19    the property of the person to be protected as may be required for

20    the person's benefit or the benefit of the person's dependents.

21         (b) After a hearing, and upon determining that a basis for

22    an appointment or other protective order exists with respect to a

23    minor without other disability, the court has all those powers

24    over the MINOR'S estate and affairs  of the minor which  THAT are

25    or may be necessary for the best interests of the minor, the

26    minor's family, and members of the minor's household.





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 1         (c) After a hearing, and upon determining that a basis for

 2    an appointment or other protective order exists with respect to a

 3    person for reasons other than minority, the court, for the bene-

 4    fit of the person and members of the person's household, has all

 5    the powers over the person's estate and affairs  which  THAT the

 6    person could exercise if present and not under disability, except

 7    the power to make a will.  These powers include  the power to 

 8    ALL OF THE FOLLOWING POWERS:

 9         (i) TO make gifts.  , to 

10         (ii) TO convey or release contingent and expectant interests

11    in property including marital property rights and  any  A

12    SURVIVORSHIP right  of survivorship  incident to joint tenancy or

13    tenancy by the entirety.  , to 

14         (iii) TO exercise or release powers as trustee, personal

15    representative, custodian for minors, conservator, or donee of a

16    power of appointment.  , to 

17         (iv) TO enter into contracts.  , to 

18         (v) TO create revocable or irrevocable trusts of ESTATE

19    property  of the estate which  THAT may extend beyond disability

20    or life.  , to 

21         (vi) TO exercise  options of  the disabled  person  PERSON'S

22    OPTIONS to purchase securities or other property.  , to 

23         (vii) TO exercise rights to elect options and change benefi-

24    ciaries under insurance and annuity policies and to surrender the

25    policies for their cash value.  , to 

26         (viii) TO exercise the right to an elective share in  the  A

27    DECEASED SPOUSE'S estate.  of a deceased spouse, and to 



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 1         (ix) TO renounce  any  AN interest by testate or intestate

 2    succession or by inter vivos transfer.

 3         (d)  The  ONLY IF SATISFIED AFTER NOTICE AND A HEARING THAT

 4    IT IS IN THE PROTECTED PERSON'S BEST INTERESTS AND THAT THE PRO-

 5    TECTED PERSON IS INCAPABLE OF CONSENTING OR HAS CONSENTED TO THE

 6    PROPOSED EXERCISE OF THE POWER, THE court may exercise, or direct

 7    the exercise of, its authority to DO 1 OR MORE OF THE FOLLOWING:

 8         (i) TO exercise or release powers of appointment of which

 9    the protected person is donee.  , to 

10         (ii) TO renounce interests.  , to 

11         (iii) TO make gifts in trust or otherwise exceeding 20% of

12    any year's ESTATE income.  of the estate, or to 

13         (iv) TO change beneficiaries under insurance and annuity

14    policies.  , only if satisfied, after notice and hearing, that it

15     is in the best interests of the protected person, and that the

16     person is incapable of consenting or has consented to the pro-

17     posed exercise of power. 

18         (v) TO SELL THE PROTECTED PERSON'S PRIMARY RESIDENCE.

19         (vi) TO PURCHASE A PREPAID FUNERAL OR BURIAL SERVICES

20    CONTRACT.

21         (2) An order made  pursuant to  UNDER this section determin-

22    ing that a basis for appointment of a conservator or other pro-

23    tective order exists  ,  does not affect the capacity of the pro-

24    tected person.

25         (3) To encourage the self-reliance and independence of a

26    protected person, the court may authorize the individual to

27    function without the consent or supervision of the person's



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 1    conservator in the handling of part of his or her money or

 2    property, including the maintenance of a savings or checking

 3    account in a bank or other institution.  , and, to  TO the extent

 4    authorized  , any  UNDER THIS SUBSECTION, A person may deal with

 5    that individual as though the individual were mentally

 6    competent.

 7         Sec. 484.  (1) A conservator has all of the powers conferred

 8    in this section.  In addition, a conservator of the estate of an

 9    unmarried minor as to whom no person has parental rights  ,  has

10    the duties and powers of a MINOR'S guardian  of a minor 

11    described in section 431 until the minor marries.  but  HOWEVER,

12    the parental rights  so  conferred BY THIS SUBSECTION on a con-

13    servator do not preclude appointment of a guardian as provided

14     by sections 421 to 437  IN THIS ARTICLE.

15         (2) A conservator, without court authorization or confirma-

16    tion, may invest  and  OR reinvest  funds of the  estate MONEY as

17    would a trustee.

18         (3) A conservator, acting reasonably in efforts to accom-

19    plish the purpose for which he or she was appointed, may act

20    without court authorization or confirmation to DO ALL OF THE

21    FOLLOWING:

22         (a) Collect, hold,  and  OR retain ESTATE assets  of the

23     estate  including land in another state, until in the

24    conservator's judgment, disposition of the assets should be made,

25    which assets may be retained even though they include an asset in

26    which the conservator is personally interested.





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 1         (b) Receive additions to the estate.

 2         (c) Continue or participate in the operation of a business

 3    or other enterprise.

 4         (d) Acquire an undivided interest in an estate asset in

 5    which the conservator, in any fiduciary capacity, holds an undi-

 6    vided interest.

 7         (e) Invest  and  OR reinvest estate assets pursuant to sub-

 8    section (2).

 9         (f) Deposit estate funds in a bank including a bank operated

10    by the conservator.

11         (g)  Acquire  EXCEPT AS PROVIDED IN SECTION 468 REGARDING

12    THE SALE OF THE PROTECTED PERSON'S PRIMARY RESIDENCE, ACQUIRE or

13    dispose of an estate asset including land in another state for

14    cash or on credit, at public or private sale;  and to  OR manage,

15    develop, improve, exchange, partition, change the character of,

16    or abandon an estate asset.

17         (h) Make ordinary or extraordinary repairs or alterations in

18    buildings or other structures,  to  demolish any improvements,

19     and to  OR raze existing or erect new party walls or buildings.

20         (i) Subdivide, develop, or dedicate land to public use;  to 

21    make or obtain the vacation of plats  and  OR adjust boundaries;

22     to  adjust differences in valuation on exchange, or  to  parti-

23    tion by giving or receiving consideration;  and to  OR dedicate

24    easements to public use without consideration.

25         (j) Enter for any purpose into a lease as lessor or lessee

26    with or without option to purchase or renew for a term within or





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 1    extending beyond the CONSERVATORSHIP'S term.  of the

 2     conservatorship. 

 3         (k) Enter into a lease or arrangement for exploration  and 

 4    OR removal of minerals or other natural resources, or enter into

 5    a pooling or unitization agreement.

 6         (l) Grant an option involving disposition of an estate asset

 7    or  to  take an option for the acquisition of  any  AN asset.

 8         (m) Vote a security, in person or by general or limited

 9    proxy.

10         (n) Pay calls, assessments,  and any  OR other sums charge-

11    able or accruing against or on account of securities.

12         (o) Sell or exercise stock subscription or conversion

13    rights;  to  OR consent, directly or through a committee or other

14    agent, to the reorganization, consolidation, merger, dissolution,

15    or liquidation of a corporation or other business enterprise.

16         (p) Hold a security in the name of a nominee or in other

17    form without disclosure of the conservatorship so that title to

18    the security may pass by delivery.  The conservator is liable for

19     any  AN act of the nominee in connection with the stock so

20    held.

21         (q) Insure the ESTATE assets  of the estate  against damage

22    or loss,  and  OR the conservator against liability with respect

23    to third persons.

24         (r) Borrow money to be repaid from estate assets or other-

25    wise;  to  advance money for the protection of the estate or the

26    protected person  and for all  OR FOR expenses, losses,  and  OR

27    liability sustained in the administration of the estate or



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 1    because of the holding or ownership of any estate assets.  The

 2    conservator has a lien on the estate as against the protected

 3    person for advances made under this subdivision.

 4         (s) Pay or contest a claim;  to  settle a claim by or

 5    against the estate or the protected person by compromise, arbi-

 6    tration, or otherwise;  and to  OR release, in whole or in part,

 7    a claim belonging to the estate to the extent that the claim is

 8    uncollectible.

 9         (t) Pay taxes, assessments, reasonable compensation of the

10    conservator,  and  OR other expenses incurred in the collection,

11    care, administration,  and  OR protection of the estate.

12         (u) Allocate items of income or expense to estate income or

13    principal, as provided by law, including creation of reserves out

14    of income for depreciation, obsolescence, or amortization, or for

15    depletion in mineral or timber properties.

16         (v) Pay  any  A sum distributable to a protected person or

17    that person's dependent without liability to the conservator, by

18    paying the sum to the distributee or by paying the sum for the

19    use of the distributee to his or her guardian or if none, to a

20    relative or other person with custody of his or her person.

21         (w) Employ persons, including attorneys, auditors, invest-

22    ment advisors, or agents, even though they are associated with

23    the conservator, to advise or assist the conservator in the per-

24    formance of his or her administrative duties;  to  act upon their

25    recommendation without independent investigation;  and  OR

26    instead of acting personally, to employ 1 or more agents to





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 1    perform  any  AN act of administration, whether or not

 2    discretionary.

 3         (x) Prosecute or defend actions, claims, or proceedings in

 4    any jurisdiction for the protection of estate assets  and  OR of

 5    the conservator in the performance of his or her duties.

 6         (y) Execute and deliver  any  AN instrument  which  THAT

 7    will accomplish or facilitate the exercise of the powers vested

 8    in the conservator.

 9         (4) THIS SECTION DOES NOT AUTHORIZE THE PURCHASE OF, AND A

10    CONSERVATOR SHALL NOT PURCHASE, A PREPAID FUNERAL OR BURIAL SERV-

11    ICES CONTRACT WITHOUT COURT AUTHORIZATION AS PRESCRIBED IN SEC-

12    TION 468.
































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