SENATE BILL NO. 955 February 26, 1998, Introduced by Senator VAN REGENMORTER and referred to the Committee on Families, Mental Health and Human Services. A bill to amend 1978 PA 642, entitled "Revised probate code," by amending sections 3, 427, and 437 (MCL 700.3, 700.427, and 700.437), section 3 as amended by 1988 PA 222 and sections 427 and 437 as amended by 1990 PA 313, and by adding section 427a. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 3. (1) "Authenticated" means that the genuineness and 2 validity of the original or a copy of a public or official docu- 3 ment, instrument, or record is proved. 4 (2) "Beneficiary" INCLUDES, as it relates to trust benefi- 5 ciaries,includesa beneficiary of a present or future inter- 6 est, vested or contingent, and the owner of an interest by 7 assignment or other transfer. Beneficiary includes a party 8 entitled to enforce the trust if the trust is a charitable 9 trust. 02610'97 a * GWH 2 1 (3) "Child" includes a person entitled to take as a child 2 under this act by intestate succession from the parent whose 3 relationship is in question and excludes a stepchild, a foster 4 child, a grandchild, or any more remote descendant who is not so 5 entitled to inherit. 6 (4) "CHILD-ATTORNEY" MEANS AN ATTORNEY APPOINTED BY THE 7 COURT TO REPRESENT A CHILD'S BEST INTERESTS. 8 (5)(4)"Claim" INCLUDES, in respect to estates of dece- 9 dents and protected persons,includesliabilities of the dece- 10 dent or protected person whether arising in contract, in tort, or 11 otherwise, and liabilities of the estate that arise before, at, 12 or after the death of the decedent or the appointment of the con- 13 servator, including funeral and burial expenses and expenses of 14 administration. Claim does not include estate and inheritance 15 taxes, demands, or disputes regarding title of a decedent or pro- 16 tected person to specific assets alleged to be included in the 17 estate. 18 (6)(5)"Conservator" means a person appointed by the 19 court, as provided in article 4, to exercise powers over the 20 estate of a protected person. 21 (7)(6)"County public administrator" means a county 22 public administrator appointed underAct No. 194 of the Public23Acts of 1947, as amended, being sections 720.201 to 720.223 of24the Michigan Compiled Laws1947 PA 194, MCL 720.201 TO 720.223. 25 (8)(7)"Court" means the probate court. 26 Sec. 427. (1)NoticeTHE PETITIONER SHALL GIVE NOTICE of 27 the time and place of hearing of a petition for the appointment 02610'97 a * 3 1 of a guardian of a minorshall be given by the petitionerto 2 each of the following: 3 (a) The minor, if 14 years of age or older. 4 (b) The person who had the principal care and custody of the 5 minor during the 60 days preceding the date of the petition. 6 (c) Each living parent of the minor or, if neither of them 7 is living, the adult nearest of kin to the minor. 8 (2) Upon hearing OF A PETITION TO APPOINT A GUARDIAN, if the 9 court finds that a qualified person seeks appointment, venue is 10 proper, the required notices have been given, the requirements of 11 section 424 or 424a are satisfied, and the MINOR'S welfareof12the minorwill be served by the requested appointment,itTHE 13 COURT shall make the appointment. In other cases, the court may 14 dismiss the proceedings or make any other disposition of the 15 matter that will serve the MINOR'S welfare.of the minor.16 (3) If necessary, the court may appoint a temporary guardian 17 with the status of an ordinary guardian of a minor, but the 18 TEMPORARY GUARDIAN'S authorityof a temporary guardianshall 19 not exceed 6 months. 20 (4) If, at any time in the proceeding, the court determines 21 that the MINOR'S interestsof the minorare or may be inade- 22 quately represented, the courtmaySHALL appointan attorney23 A CHILD-ATTORNEY to represent the minor, giving consideration to 24 the MINOR'S preferenceof the minorif the minor is 14 years of 25 age or older. IN ADDITION TO ANY OTHER POWERS AND DUTIES, A 26 CHILD-ATTORNEY'S POWERS AND DUTIES INCLUDE THOSE PRESCRIBED IN 27 SECTION 427A. 02610'97 a * 4 1 SEC. 427A. (1) A CHILD-ATTORNEY APPOINTED UNDER SECTION 427 2 HAS AT LEAST ALL OF THE FOLLOWING POWERS AND DUTIES: 3 (A) TO SERVE AS THE INDEPENDENT LEGAL REPRESENTATIVE OF THE 4 MINOR'S BEST INTERESTS. THE CHILD-ATTORNEY IS ENTITLED TO FULL 5 AND ACTIVE PARTICIPATION IN ALL ASPECTS OF THE PROCEEDING. THE 6 COURT SHALL GRANT THE CHILD-ATTORNEY ACCESS TO ALL RELEVANT 7 INFORMATION REGARDING THE MINOR. 8 (B) TO DETERMINE THE FACTS OF THE CASE BY CONDUCTING AN 9 INDEPENDENT INVESTIGATION INCLUDING INTERVIEWING THE CHILD, 10 SOCIAL WORKERS, FAMILY MEMBERS, AND OTHERS AS NECESSARY, AND BY 11 REVIEWING REPORTS AND OTHER INFORMATION. 12 (C) BEFORE EACH STAGE OF THE PROCEEDINGS, TO MEET WITH AND 13 OBSERVE THE MINOR, ASSESS THE MINOR'S NEEDS AND WISHES WITH 14 REGARD TO THE REPRESENTATION AND THE ISSUES IN THE CASE, REVIEW 15 THE AGENCY CASE FILE AND, CONSISTENT WITH THE RULES OF PROFES- 16 SIONAL RESPONSIBILITY, CONSULT WITH THE MINOR'S PARENTS, GUARDI- 17 ANS, AND CASEWORKERS. 18 (D) TO EXPLAIN TO THE MINOR, ACCORDING TO THE MINOR'S ABIL- 19 ITY TO UNDERSTAND THE PROCEEDINGS, THE CHILD-ATTORNEY'S ROLE, AND 20 THOSE CIRCUMSTANCES UNDER WHICH THE CHILD-ATTORNEY MAY DISCLOSE 21 INFORMATION TO THE COURT. 22 (E) TO FILE ALL NECESSARY PLEADINGS AND PAPERS AND INDEPEN- 23 DENTLY CALL WITNESSES ON THE MINOR'S BEHALF. 24 (F) TO ATTEND ALL HEARINGS AND SUBSTITUTE REPRESENTATION 25 ONLY WITH COURT APPROVAL. 26 (G) TO MAKE A DETERMINATION AS TO THE MINOR'S BEST INTERESTS 27 AND ADVOCATE FOR THE BEST INTERESTS AS THE CHILD-ATTORNEY SEES 02610'97 a * 5 1 THEM, REGARDLESS OF WHETHER THE CHILD-ATTORNEY'S DETERMINATION 2 REFLECTS THE MINOR'S WISHES. THE MINOR'S WISHES ARE RELEVANT TO 3 THE CHILD-ATTORNEY'S DETERMINATION OF BEST INTERESTS, AND THE 4 CHILD-ATTORNEY SHALL WEIGH THE MINOR'S WISHES ACCORDING TO THE 5 MINOR'S COMPETENCE AND MATURITY. IN ANY EVENT, THE 6 CHILD-ATTORNEY SHALL INFORM THE COURT AS TO THE MINOR'S WISHES 7 AND PREFERENCES. 8 (H) TO MONITOR THE IMPLEMENTATION OF COURT ORDERS. 9 (I) CONSISTENT WITH THE RULES OF PROFESSIONAL RESPONSIBILITY 10 FOR ATTORNEYS, TO IDENTIFY COMMON INTERESTS AMONG THE PARTIES 11 AND, TO THE EXTENT POSSIBLE, PROMOTE A COOPERATIVE RESOLUTION OF 12 THE MATTER. 13 (2) IF, AFTER DISCUSSION BETWEEN THE MINOR AND THE 14 CHILD-ATTORNEY, THE CHILD-ATTORNEY DETERMINES THAT THE MINOR'S 15 INTERESTS AS IDENTIFIED BY THE MINOR ARE INCONSISTENT WITH THE 16 CHILD-ATTORNEY'S DETERMINATION OF THE MINOR'S BEST INTERESTS, THE 17 CHILD-ATTORNEY SHALL COMMUNICATE THE MINOR'S POSITION TO THE 18 COURT AND ASK THE COURT TO APPOINT LEGAL COUNSEL TO REPRESENT THE 19 MINOR. 20 (3) THE ATTORNEY-CLIENT OR ANY OTHER STATUTORY OR LEGALLY 21 RECOGNIZED PRIVILEGE SHALL NOT PREVENT THE CHILD-ATTORNEY FROM 22 SHARING ALL INFORMATION RELEVANT TO THE MINOR'S BEST INTERESTS 23 WITH THE COURT. 24 (4) A PARTY TO THE PROCEEDINGS SHALL NOT CALL THE 25 CHILD-ATTORNEY AS A WITNESS TO TESTIFY IN THE PROCEEDINGS, AND 26 THE FILE OF THE CHILD-ATTORNEY IS NOT DISCOVERABLE. 02610'97 a * 6 1 (5) A CHILD-ATTORNEY APPOINTED UNDER SECTION 427 IS NOT 2 LIABLE IN A CIVIL ACTION FOR DAMAGES FOR AN ACT OR OMISSION OF 3 THE CHILD-ATTORNEY TAKEN IN FURTHERANCE OF THE APPOINTMENT, 4 UNLESS THE ACT OR OMISSION IS GROSSLY NEGLIGENT OR WILLFUL AND 5 WANTON. 6 (6) THE COURT MAY ASSESS ALL OR PART OF THE COSTS AND REA- 7 SONABLE FEES OF THE CHILD-ATTORNEY AGAINST 1 OR MORE OF THE PAR- 8 TIES INVOLVED IN THE PROCEEDINGS. A CHILD-ATTORNEY APPOINTED 9 UNDER SECTION 427 SHALL NOT BE PAID A FEE UNLESS THE COURT FIRST 10 RECEIVES AND APPROVES THE FEE. 11 (7) AS USED IN THIS SECTION, "LEGAL COUNSEL" MEANS AN ATTOR- 12 NEY WHO SERVES AS THE CHILD'S LEGAL ADVOCATE IN A TRADITIONAL 13 ATTORNEY-CLIENT RELATIONSHIP WITH THE CHILD, AS GOVERNED BY THE 14 MICHIGAN RULES OF PROFESSIONAL CONDUCT. THE CHILD'S LEGAL COUN- 15 SEL OWES THE SAME DUTIES OF UNDIVIDED LOYALTY, CONFIDENTIALITY, 16 AND ZEALOUS REPRESENTATION OF THE CHILD'S EXPRESSED WISHES AS HE 17 OR SHE WOULD TO AN ADULT CLIENT. 18 Sec. 437. (1) A person interested intheA WARD'S welfare 19of a wardor the ward, if 14 or more years of age, may petition 20 for A GUARDIAN'S removalof a guardianon the ground that 21 removal would serve the WARD'S welfare.of the ward.A guardian 22 may petition for permission to resign. A petition for removal or 23 for permission to resign may include a request for A SUCCESSOR 24 GUARDIAN'S appointment.of a successor guardian.25 (2) After notice and hearing on a petition for removal or 26 for permission to resign, the court may terminate the 27 guardianship and make any further order that may be appropriate. 02610'97 a * 7 1 (3) If, at any time in the proceeding, the court determines 2 that the WARD'S interestsof the wardare, or may be, inade- 3 quately represented,it mayTHE COURT SHALL appointan4attorneyA CHILD-ATTORNEY to represent the minor, giving consid- 5 eration to the MINOR'S preferenceof the minorif the minor is 6 14 or more years of age. 02610'97 a * Final page. GWH