February 26, 2014, Introduced by Reps. LaFontaine, Cotter, Geiss, Leonard, Lauwers, Kowall and Jenkins and referred to the Committee on Judiciary.
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending sections 5407 and 5415 (MCL 700.5407 and 700.5415),
section 5407 as amended by 2009 PA 46, and by adding section 5423a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 5407. (1) The court shall exercise the authority
conferred in this part to encourage the development of maximum
self-reliance and independence of a protected individual and shall
make protective orders only to the extent necessitated by the
protected individual's mental and adaptive limitations and other
conditions warranting the procedure. Accordingly, the court may
authorize a protected individual to function without the consent or
supervision of the individual's conservator in handling part of his
or her money or property, including authorizing the individual to
maintain an account with a financial institution. To the extent the
individual is authorized to function autonomously, a person may
deal with the individual as though the individual is mentally
competent.
(2) The court has the following powers that may be exercised
directly or through a conservator in respect to a protected
individual's estate and business affairs:
(a) While a petition for a conservator's appointment or
another protective order is pending and after preliminary hearing
and without notice to others, the court has the power to preserve
and apply property of the individual to be protected as may be
required for the support of the individual or the individual's
dependents.
(b) After hearing and upon determining that a basis for an
appointment or other protective order exists with respect to a
minor without other disability, the court has all those powers over
the minor's estate and business affairs that are or may be
necessary for the best interests of the minor and members of the
minor's immediate family.
(c) After hearing and upon determining that a basis for an
appointment or other protective order exists with respect to an
individual for a reason other than minority, the court, for the
benefit of the individual and members of the individual's immediate
family, has all the powers over the estate and business affairs
that the individual could exercise if present and not under
disability, except the power to make a will. Those powers include,
but are not limited to, all of the following:
(i) To make gifts.
(ii) To convey or release a contingent or expectant interest in
property including marital property rights and a right of
survivorship incident to joint tenancy or tenancy by the entirety.
(iii) To exercise or release a power held by the protected
individual as personal representative, custodian for a minor,
conservator, or donee of a power of appointment.
(iv) To enter into a contract.
(v) To create a revocable or irrevocable trust of estate
property that may extend beyond the disability or life of the
protected individual.
(vi) To exercise an option of the protected individual to
purchase securities or other property.
(vii) To exercise a right to elect an option and change a
beneficiary under an insurance or annuity policy and to surrender
the policy for its cash value.
(viii) To exercise a right to an elective share in the estate of
the individual's deceased spouse.
(ix) To renounce or disclaim an interest by testate or
intestate succession or by inter vivos transfer.
(x) Subject to the applicable terms-of-service agreement:
(A) To exercise control over digital property of the protected
individual.
(B) To exercise a right in digital property of the protected
individual.
(C) To change a governing instrument affecting the digital
property of the protected individual.
(3) The court may exercise or direct the exercise of the
following powers only if satisfied, after the notice and hearing,
that it is in the protected individual's best interests and that
the individual either is incapable of consenting or has consented
to the proposed exercise of the power:
(a) To exercise or release a power of appointment of which the
protected individual is donee.
(b) To renounce or disclaim an interest.
(c) To make a gift in trust or otherwise exceeding 20% of a
year's income of the estate.
(d) To change a beneficiary under an insurance and annuity
policy.
(4) A determination that a basis for a conservator's
appointment or another protective order exists has no effect on the
protected individual's capacity.
(5) To the extent ordered by the court under subsection (2),
and subject to the applicable law and terms-of-service agreement,
with respect to the protected individual's digital property, a
conservator has the lawful consent of the protected individual and
is an authorized user under all applicable state and federal
statutes.
Sec. 5415. (1) A person interested in the welfare of an
individual for whom a conservator is appointed may file a petition
in the appointing court for an order to do any of the following:
(a) Require bond or security or additional bond or security,
or reduce bond.
(b) Require an accounting for the administration of the trust.
(c) Direct distribution.
(d) Remove the conservator and appoint a temporary or
successor conservator.
(e) Limit or eliminate the conservator's power over digital
property.
(f) (e)
Grant other appropriate relief.
(2) On receipt of a petition under subsection (1)(e), the
court shall set a date for a hearing on the petition. The hearing
date shall be not less than 14 days and not more than 56 days after
the date the petition is filed.
(3) (2)
A conservator may petition the
appointing court for
instructions concerning fiduciary responsibility. Upon notice and
hearing, the court may give appropriate instructions or make an
appropriate order.
Sec. 5423a. (1) On receipt of a conservator's written request
under this subsection for access to digital property, ownership of
digital property, or a copy of a digital asset, a digital custodian
shall provide the conservator with the requested access, ownership,
or copy, as applicable. A conservator's written request under this
subsection must be accompanied by a certified copy of the court
order that gives the conservator power over the digital property.
(2) A digital custodian shall comply not later than 56 days
after receipt of a request made under subsection (1). If the
digital custodian fails to comply, the conservator may petition the
court for an order directing compliance. If, not later than 56 days
after receiving a request made under subsection (1), the digital
custodian fails to comply with the request or order, the
conservator may petition the court for an order directing
compliance.
(3) A digital custodian is not liable for an action done in
compliance with this section.
Enacting section 1. This amendatory act does not take effect
unless all of the following bills of the 97th Legislature are
enacted into law:
(a) Senate Bill No.____ or House Bill No. 5368 (request no.
01198'13).
(b) Senate Bill No.____ or House Bill No. 5367 (request no.
04550'13).
(c) Senate Bill No.____ or House Bill No. 5369 (request no.
04552'13).
(d) Senate Bill No.____ or House Bill No. 5370 (request no.
04553'13).