The Michigan Supreme Court answered the State Bar resolution by convening a 24 member Guardianship Task Force, with a mission to examine how the judiciary, legislature, and executive branch agencies could better protect the interests of individuals for whom guardianship or conservatorship was brought. Members included legislators, judges, court staff, representatives of social services and mental health agencies, advocacy organizations for older adults and for individuals with developmental disabilities, gerontologists, attorneys, and the public, including five members of the Elder Law & Advocacy Section.

The Task Force created four committees, each to make recommendations to effect one of the following goals:

• Reduce the Use of Guardianships and Conservatorships.
• Obtain Adequate Numbers of Qualified and Concerned Guardians.
• Monitor Guardians and Court Operations.
• Develop Standards, Training, and Education for Guardians.

Review of available data, including the results of a survey of court practices conducted by the Task Force, revealed widely varying rates of guardianship among counties, non-compliance by some courts as to the required reviews, different methods of court review of annual reports and annual accountings, reluctance of some courts to use all available follow-up procedures on delinquent accounts, divergence on the qualifications and role of the GAL, and in requirements for additional documentation such as medical or other evaluations.

A second survey, of petitioners filing for guardianship, indicated that many were requested to do so by hospitals, nursing homes, and financial institutions as a condition of the individual being admitted or treated or receiving benefits. Even persons who had executed a durable power of attorney or other advance directive while competent were required to be under guardianship.

The Task Force unanimously approved eleven recommendations of three different types.

RECOMMENDATION 1: Each county should establish a local resource for citizens to help assess the need for guardianships and conservatorships, to share resources, to resolve issues outside the probate system, and to assist in developing alternatives to guardianships and conservatorships.

RECOMMENDATION 2: Existing statutory provisions for medical treatment decisions are inadequate or not recognized by many, and therefore, legislation should be explored.

Brad Geller

The legislature has enacted SB 209, the Estates and Protected Individuals Code (EPIC). The Code will replace the entire Revised Probate Code on April 1, 2000. The final, 389-page bill, was the result of prodigious work by the Probate and Estate Planning Section, legislators on the House Judiciary Sub-Committee, legislative staff, the banking and insurance industry, and advocacy organizations. The Elder Law and Advocacy Section played an active role with the goal of ensuring the bill furthered the interests of "consumers" in decedent estates, and well protected respondents in guardianship and conservatorship proceedings.

As enacted, the bill is an amalgam of the Uniform Probate Code, Michigan Revised Probate Code and suggested improvements to both those acts. A few of the changes to current law relative to decedent estates are:

• Adoption of prudent investor rule;
• Substantial increase in spousal share in intestate succession and elective share;
• Personal representative may take periodic fees without prior court approval;
• Notice required to interested parties so they can object to costs of administration; Account must specifically state amount of attorney and fiduciary fees;
• Attorneys serving as personal representative must keep time records; and
• Affidavit delivered to bank or broker as alternative to small estate proceeding for personal property valued at no more than $15,000.

Significant changes were made to adult guardianship and conservatorship proceedings. Some of these are highlighted below.

• Recognizing many litigants are not represented by counsel, the legislature explicitly provided court staff can offer interested persons general information, blank forms, and specific information concerning the preparation of a form.
• When meaningful communication is possible, a guardian should consult with the individual before making a major decision.
• If a guardian delegates his or her powers through a power of attorney, the guardian must inform the court within 7 days, and provide the name, address and telephone number of the attorney-in-fact.
• The need for a conservator must be established by clear and convincing evidence.
• In general, the procedural protections in guardianship proceedings apply to conservatorship, e.g. right to independent exam, closed hearing, moving site of hearing, trial by jury.
• Provision for limited conservatorships; court must fashion conservator's powers to the demonstrated needs of the individual.
• Conservator must take into account the existing estate plan of the individual in carrying out conservator's duties.
• Upon death of individual, conservator may petition to be given powers of personal representative, should no one else petition.

The legislation will necessitate changes to court rules and court forms;. Information will be provided to members as it becomes available.