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HB-5740, As Passed House, June 3, 2026
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SUBSTITUTE FOR
HOUSE BILL NO. 5740
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending sections 5106, 5314, and 5319 (MCL 700.5106, 700.5314,
and 700.5319), section 5106 as amended by 2017 PA 136, section 5314
as amended by 2024 PA 1, and section 5319 as added by 2012 PA 173.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 5106. (1) Subject to subsections (2) and (3), the court 1
may appoint or approve a professional guardian or professional 2
conservator, as appropriate, as a guardian or conservator under 3
this act, or as a plenary guardian or partial guardian as those 4
terms are defined in section 600 of the mental health code, 1974 PA 5
258, MCL 330.1600. 6
(2) The court shall only appoint a professional guardian or 7
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professional conservator as authorized under subsection (1) if the 1
court finds on the record all of the following: 2
(a) The appointment of the professional guardian or 3
professional conservator is in the ward's, developmentally disabled 4
individual's, incapacitated individual's, or protected individual's 5
best interests. 6
(b) There is no other person that is competent, suitable, and 7
willing to serve in that fiduciary capacity in accordance with 8
section 5212, 5313, or 5409. 9
(3) The court shall not appoint a professional guardian or 10
professional conservator as authorized under subsection (1) unless 11
the professional guardian or professional conservator files a bond 12
or places money in a restricted account in an amount and with the 13
conditions as determined by the court. For a professional 14
conservator, the sureties and liabilities of the bond are subject 15
to sections 5410 and 5411. 16
(4) A professional guardian or professional conservator 17
appointed under this section shall not receive as a result of that 18
appointment a benefit beyond compensation specifically authorized 19
for that type of fiduciary by this act or the mental health code, 20
1974 PA 258, MCL 330.1001 to 330.2106. This subsection does not 21
prevent a person from providing compensation or other benefits, 22
from a source other than the estate of the ward, developmentally 23
disabled individual, incapacitated individual, or protected 24
individual, to a professional guardian or professional conservator 25
appointed or approved under this section. If a professional 26
guardian or professional conservator appointed or approved under 27
this section receives or is to receive compensation or other 28
benefits as a result of that appointment from a person other than 29
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this state, a political subdivision of this state, or a trust 1
created under section 5407(2), the professional guardian or 2
professional conservator shall file with the appointing or 3
approving court a written statement of the compensation or other 4
benefit received or to be received, including the source of the 5
compensation or other benefit, in a form and in a manner prescribed 6
by the Michigan court rules. The professional guardian or 7
professional conservator shall serve a copy of the form described 8
in this subsection to the ward, developmentally disabled 9
individual, incapacitated individual, or protected individual and 10
to interested persons. 11
(5) A professional guardian appointed under this section shall 12
establish and maintain a schedule of visitation so that an 13
individual associated with the professional guardian who is 14
responsible for the ward's care visits the ward within not later 15
than 3 months after the professional guardian's appointment and not 16
less than once within 3 months after each previous visit. 17
(6) A professional guardian appointed under this section shall 18
ensure that there are a sufficient number of employees assigned to 19
the care of wards for the purpose of performing the necessary 20
duties associated with ensuring that proper and appropriate care is 21
provided. 22
(7) For the purposes of the statutory authorization required 23
by section 1105(2)(e) of the banking code of 1999, 1999 PA 276, MCL 24
487.11105, to act as a fiduciary in this state, if the court 25
appoints a for-profit or nonprofit, nonbanking corporation 26
organized under the laws of this state to serve in a fiduciary 27
capacity that is listed in subsection (1), the nonbanking 28
corporation is authorized to act in that fiduciary capacity. The 29
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authorization under this subsection confers the fiduciary capacity 1
only to the extent necessary in the particular matter of each 2
appointment and is not a general grant of fiduciary authority. A 3
nonbanking corporation is not authorized to act in any other 4
fiduciary capacity. 5
Sec. 5314. If meaningful communication is possible, a legally 6
incapacitated individual's guardian shall consult with the legally 7
incapacitated individual before making a major decision affecting 8
the legally incapacitated individual. To the extent a guardian of a 9
legally incapacitated individual is granted powers by the court 10
under section 5306, the guardian is responsible for the ward's 11
care, custody, and control, but is not liable to third persons 12
because of that responsibility for the ward's acts. In particular 13
and without qualifying the previous sentences, a guardian has all 14
of the following powers and duties, to the extent granted by court 15
order: 16
(a) The custody of the person of the ward and the power to 17
establish the ward's place of residence in or outside this state. 18
The guardian shall visit the ward within not later than 3 months 19
after the guardian's appointment and not less than once within 3 20
months after each previous visit. The guardian shall notify the 21
court within not later than 14 days of after a change in the ward's 22
place of residence or a change in the guardian's place of 23
residence. 24
(b) If entitled to custody of the ward, the duty to make 25
provision for the ward's care, comfort, and maintenance and, when 26
appropriate, arrange for the ward's training and education. The 27
guardian shall secure services to restore the ward to the best 28
possible state of mental and physical well-being so that the ward 29
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can return to self-management at the earliest possible time. 1
Without regard to custodial rights of the ward's person, the 2
guardian shall take reasonable care of the ward's clothing, 3
furniture, vehicles, and other personal effects and commence a 4
protective proceeding if the ward's other property needs 5
protection. If a guardian commences a protective proceeding because 6
the guardian believes that it is in the ward's best interest to 7
sell or otherwise dispose of the ward's real property or interest 8
in real property, the court may appoint the guardian as special 9
conservator and authorize the special conservator to proceed under 10
section 5423(3). A guardian shall not otherwise sell the ward's 11
real property or interest in real property. 12
(c) The power to give the consent or approval that is 13
necessary to enable the ward to receive medical, mental health, or 14
other professional care, counsel, treatment, or service. However, a 15
guardian does not have and shall not exercise the power to give the 16
consent to or approval for inpatient hospitalization unless the 17
court expressly grants the power in its order. If the ward objects 18
or actively refuses mental health treatment, the guardian or any 19
other interested person must follow the procedures provided in 20
chapter 4 of the mental health code, 1974 PA 258, MCL 330.1400 to 21
330.1490, to petition the court for an order to provide involuntary 22
mental health treatment. The power of a guardian to execute a do-23
not-resuscitate order under subdivision (d), execute a nonopioid 24
directive form under subdivision (f), or execute a physician orders 25
for scope of treatment form under subdivision (g) does not affect 26
or limit the power of a guardian to consent to a physician's order 27
to withhold resuscitative measures in a hospital. As used in this 28
subdivision, "involuntary mental health treatment" means that term 29
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as defined in section 400 of the mental health code, 1974 PA 258, 1
MCL 330.1400. 2
(d) The power to execute, reaffirm, and revoke a do-not-3
resuscitate order on behalf of a ward. However, a guardian shall 4
not execute a do-not-resuscitate order unless the guardian does all 5
of the following: 6
(i) Not more than 14 days before executing the do-not-7
resuscitate order, visits the ward and, if meaningful communication 8
is possible, consults with the ward about executing the do-not-9
resuscitate order. 10
(ii) Consults directly with the ward's attending physician as 11
to the specific medical indications that warrant the do-not-12
resuscitate order. 13
(e) If a guardian executes a do-not-resuscitate order under 14
subdivision (d), not less than annually after the do-not-15
resuscitate order is first executed, the duty to do all of the 16
following: 17
(i) Visit the ward and, if meaningful communication is 18
possible, consult with the ward about reaffirming the do-not-19
resuscitate order. 20
(ii) Consult directly with the ward's attending physician as to 21
specific medical indications that may warrant reaffirming the do-22
not-resuscitate order. 23
(f) The power to execute, reaffirm, and revoke a nonopioid 24
directive form on behalf of a ward. 25
(g) The power to execute, reaffirm, and revoke a physician 26
orders for scope of treatment form on behalf of a ward. However, a 27
guardian shall not execute a physician orders for scope of 28
treatment form unless the guardian does all of the following: 29
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(i) Not more than 14 days before executing the physician orders 1
for scope of treatment form, visits the ward and, if meaningful 2
communication is possible, consults with the ward about executing 3
the physician orders for scope of treatment form. 4
(ii) Consults directly with the ward's attending physician as 5
to the specific medical indications that warrant the physician 6
orders for scope of treatment form. 7
(h) If a guardian executes a physician orders for scope of 8
treatment form under subdivision (g), not less than annually after 9
the physician orders for scope of treatment form is first executed, 10
the duty to do all of the following: 11
(i) Visit the ward and, if meaningful communication is 12
possible, consult with the ward about reaffirming the physician 13
orders for scope of treatment form. 14
(ii) Consult directly with the ward's attending physician as to 15
specific medical indications that may warrant reaffirming the 16
physician orders for scope of treatment form. 17
(i) If a conservator for the ward's estate is not appointed, 18
the power to do any of the following: 19
(i) Institute a proceeding to compel a person under a duty to 20
support the ward or to pay money for the ward's welfare to perform 21
that duty. 22
(ii) Receive Subject to subdivision (k), receive money and 23
tangible property deliverable to the ward up to a value of 24
$25,000.00 and apply the money and property for the ward's support, 25
care, and education. The guardian shall not use money from the 26
ward's estate for room and board that the guardian or the 27
guardian's spouse, parent, or child have furnished the ward unless 28
a charge for the service is approved by court order made on notice 29
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to at least 1 of the ward's next of kin, if notice is possible. The 1
guardian shall exercise care to conserve any excess for the ward's 2
needs. 3
(j) The duty to report the condition of the ward and the 4
ward's estate that is subject to the guardian's possession or 5
control, as required by the court, but not less often than 6
annually. The guardian shall also serve the report required under 7
this subdivision on the ward and interested persons as specified in 8
the Michigan court rules. A report under this subdivision must 9
contain all of the following: 10
(i) The ward's current mental, physical, and social condition. 11
(ii) Improvement or deterioration in the ward's mental, 12
physical, and social condition that occurred during the past year. 13
(iii) The ward's present living arrangement and changes in the 14
ward's living arrangement that occurred during the past year. 15
(iv) Whether the guardian recommends a more suitable living 16
arrangement for the ward. 17
(v) Medical treatment, including mental health treatment, 18
received by the ward. 19
(vi) Whether the guardian has executed, reaffirmed, or revoked 20
a do-not-resuscitate order on behalf of the ward during the past 21
year. 22
(vii) Whether the guardian has executed, reaffirmed, or revoked 23
a nonopioid directive form on behalf of the ward during the past 24
year. 25
(viii) Whether the guardian has executed, reaffirmed, or revoked 26
a physician orders for scope of treatment form on behalf of the 27
ward during the past year. 28
(ix) Services received by the ward. 29
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(x) A list of the guardian's visits with, and activities on 1
behalf of, the ward. 2
(xi) A recommendation as to the need for continued 3
guardianship. 4
(xii) If a standby guardian has been designated, a statement 5
signed by the standby guardian that the standby guardian continues 6
to be willing to serve in the event of the unavailability, death, 7
incapacity, or resignation of the guardian. 8
(k) If a guardian accumulates or discovers property of the 9
ward that has a greater value than $25,000.00, the guardian has a 10
duty to give notice to the court not later than 14 days after 11
discovery by filing a protective order, petition for 12
conservatorship, or petition for instructions. The guardian may 13
receive statements and information pertaining to the newly 14
discovered property, but must not have access to the excess 15
property until ordered by the court. 16
(l) (k) If a conservator is appointed, the duty to pay to the 17
conservator, for management as provided in this act, the amount of 18
the ward's estate received by the guardian in excess of the amount 19
the guardian expends for the ward's current support, care, and 20
education. The guardian shall account to the conservator for the 21
amount expended. 22
Sec. 5319. (1) If the court determines that financial 23
protection is required for the ward, the court may shall order the 24
guardian to petition for the appointment of a conservator or for 25
another protective order under part 4 of this article in relation 26
to the ward's estate. 27
(2) If a conservator has not been appointed for a ward's 28
estate and the guardian determines that there is more cash 29
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accumulates or discovers property that has a greater value than 1
$25,000.00 or other property that is readily convertible into cash 2
in the ward's estate, than was estimated by the guardian ad litem 3
and reported to the court, the guardian shall report the amount of 4
the additional cash or property to the court not later than 14 days 5
after discovery. 6
Enacting section 1. This amendatory act does not take effect 7
unless House Bill No. 5739 of the 103rd Legislature is enacted into 8
law. 9