MICHIGAN FAMILIES AND PROTECTED INDIVIDUALS RIGHTS ACT (FPIRA) (Draft for Legislators)

Let me be very clear this is not an actual bill this is a combination of the Michigan Elder Justice Initiative’s Pilot Program combined with real life victims input on what they think would have prevented the harm their families experienced.

The idea for the bill is to protect the rights, liberties, and due process of individuals subject to guardianship, conservatorship, or probate court proceedings in the State of Michigan; to ensure the least restrictive alternatives are used before removing individual rights; to increase transparency, integrity, and public accountability in probate courts; and to provide for oversight, enforcement, and related purposes.

Section 1. Short Title.

This act shall be known and may be cited as the "Michigan Families and Protected Individuals Rights Act" or "FPIRA".

Section 2. Definitions.

As used in this act:

·       "Protected individual" means an individual who is the subject of a guardianship, conservatorship, or other protective proceeding under the Estates and Protected Individuals Code (EPIC), or who is alleged to be in need of such protection.

·       "Family member" means a spouse, child, grandchild, sibling, parent, or other individual related by blood or marriage, and any person with a significant caregiving relationship with the protected individual.

·       "Probate court" means a probate court of this state exercising jurisdiction under EPIC or related statutes.

·       "Least restrictive alternative" means the course of action that imposes the fewest limitations on the protected individual’s rights, consistent with that individual’s safety, well-being, and expressed wishes.

·       "Supported decision-making" means a voluntary arrangement in which an adult with cognitive or functional limitations retains legal decision-making authority while receiving assistance from one or more supporters in understanding, making, or communicating decisions.

·       "Guardian" and "conservator" have the meanings ascribed to them under EPIC.

·       "Judicial misconduct" means a willful or reckless failure to comply with this act, EPIC, the Michigan Court Rules, or constitutional due process requirements in matters affecting a protected individual.

Section 3. Legislative Findings and Purpose.

The legislature finds that guardianship and conservatorship are powerful legal tools that can remove or restrict fundamental rights, including the rights to make medical, financial, and personal decisions, to control property, and to maintain family relationships. These tools must be used sparingly, with robust due process and transparency. It is the purpose of this act to:

·       Protect the civil and constitutional rights of individuals who are, or may be, subject to guardianship, conservatorship, or related probate proceedings.

·       Ensure that less restrictive alternatives, including supported decision-making, are considered and implemented whenever feasible before imposing a full guardianship or conservatorship.

·       Guarantee that families and protected individuals receive notice, a meaningful opportunity to be heard, and access to the record in all proceedings affecting their rights.

·       Increase transparency, data collection, and public accountability in probate court practices.

·       Establish clear standards and enforcement mechanisms to address noncompliance by courts, guardians, conservators, and court-appointed professionals.

Section 4. Bill of Rights for Protected Individuals and Families.

1.     The right to notice, in plain language, of all petitions, hearings, and orders affecting the protected individual.

2.     The right to be present at hearings, to meaningfully participate, and to be reasonably accommodated based on disability-related needs.

3.     The right to counsel of the protected individual’s choice, where feasible, and to confidential communication with counsel.

4.     The right to maintain relationships and visitation with family members and other persons of significance, absent a specific court finding supported by clear and convincing evidence that such contact would cause substantial harm.

5.     The right to have the least restrictive alternative considered and, when appropriate, implemented before any full guardianship or conservatorship is ordered.

6.     The right to regular review of any guardianship or conservatorship order and an accessible process to petition for modification or termination.

7.     The right of family members to access non-privileged information reasonably necessary to monitor the welfare of the protected individual, subject to appropriate privacy protections.

Section 5. Least Restrictive Alternatives and Supported Decision-Making.

Before imposing a full guardianship or conservatorship, the probate court shall make specific written findings that less restrictive alternatives have been considered and found insufficient to meet the demonstrable needs of the individual. Less restrictive alternatives include, but are not limited to, supported decision-making arrangements, limited guardianships, powers of attorney, representative payees, and targeted community services.

The court shall not order a full guardianship or conservatorship unless clear and convincing evidence shows that no less restrictive alternative can adequately protect the individual’s welfare and property while respecting the individual’s preferences and autonomy.

Section 6. Procedural Protections, Notice, and Recording.

All hearings involving the rights of a protected individual under this act or EPIC shall be recorded by audio or audiovisual means, and the recording shall be preserved as part of the court record. The court shall not conduct off-the-record conferences that result in the dismissal of petitions, the entry of substantive orders, or the alteration of rights affecting a protected individual.

Notice of hearings shall be provided to the protected individual, their counsel, and known family members within a reasonable time before the hearing, in plain language, and shall state the nature of the relief sought and the rights at stake.

Section 7. Health Care Decisions and Advance Directives.

A validly executed patient advocate designation, durable power of attorney for health care, or other advance directive shall be honored unless and until it is lawfully revoked or superseded by a court order supported by specific written findings, based on clear and convincing evidence, that the designated agent is unwilling or unable to act in the individual’s best interest or has engaged in misconduct.

The probate court shall not override an existing health care directive solely for the convenience of the court or third parties, or to facilitate the transfer of assets or control to court-appointed fiduciaries.

Section 8. Visitation and Anti-Isolation Protections.

A guardian, conservator, or other fiduciary shall not unreasonably restrict a protected individual’s visitation, communication, or interaction with family members and persons of significance. Any restriction beyond reasonable time, manner, and place limitations shall require a court order supported by specific findings, based on clear and convincing evidence, that such restrictions are necessary to prevent substantial harm.

Family members shall have standing to petition the court to review and modify visitation restrictions and to enforce the protected individual’s right to maintain meaningful relationships.

Section 9. Financial Protections and Fiduciary Standards.

Guardians, conservators, and other court-appointed fiduciaries shall act as fiduciaries in the strictest sense, placing the protected individual’s interests above their own and avoiding conflicts of interest. They shall provide timely, accurate, and complete accountings as required by EPIC and the Michigan Court Rules.

The court shall scrutinize petitions and accountings that involve significant fees, asset sales, or transfers to court-appointed professionals, ensuring that such actions are necessary, reasonable, and in the protected individual’s best interest.

Section 10. Guardians Ad Litem and Court-Appointed Professionals.

A guardian ad litem or other court-appointed professional shall not act outside the scope of their appointment order and shall not initiate or file petitions in case types in which they have not been formally appointed, unless specifically authorized by statute.

Reports submitted by a guardian ad litem or other court-appointed professional shall disclose the scope of appointment, sources of information, methods used, and any conflicts of interest, and shall be filed in the correct case file.

Section 11. Data, Transparency, and Audits.

The State Court Administrative Office shall collect and publish annual data regarding guardianship and conservatorship cases, including, but not limited to, the number of new filings, emergency orders, full versus limited guardianships, terminations, complaints, and sanctions against fiduciaries.

The legislature encourages the creation of an independent probate oversight function, which may include random file audits, review of patterns of isolation or asset depletion, and recommendations for systemic reforms.

Section 12. Probate Court Integrity and Transparency Standards.

1. Mandatory Compliance. Probate judges shall strictly comply with the Estates and Protected Individuals Code (EPIC), the Michigan Court Rules, constitutional due-process standards, and the provisions of this act.

2. Mandatory Referral for Violations. Any violation of this act or EPIC shall be referred within 10 days to all of the following: (a) The Judicial Tenure Commission. (b) The State Court Administrator’s Office. (c) The Attorney General.

3. Mandatory Investigation. The Judicial Tenure Commission shall investigate all referrals made under this section.

4. Public Reporting. The Judicial Tenure Commission shall publish a public report of findings for any investigation involving a probate judge arising from a referral under this act, consistent with applicable confidentiality rules, which may be amended as necessary to effectuate this subsection.

5. Loss of Judicial Immunity — Ultra Vires Acts. A probate judge shall not be entitled to judicial immunity for acts taken without subject-matter or personal jurisdiction, in the absence of statutory authority, or in reliance on reports or filings from persons not lawfully appointed or authorized to act in the case.

6. Mandatory Discipline. Upon a finding of one violation under this section, the Judicial Tenure Commission shall impose discipline, which may include censure, suspension, or other sanctions as provided by law.

7. Mandatory Removal for Repeated Violations. Upon a finding of two or more violations under this section involving the same judicial officer, the Judicial Tenure Commission shall recommend removal to the Michigan Supreme Court.

8. Annual Judicial Compliance Report. The State Court Administrative Office shall publish an annual report summarizing, in aggregate and by probate court, the number of referrals, investigations, findings, and disciplines imposed under this section.

Section 13. Implementation, Training, and Appropriations.

The State Court Administrative Office shall develop and provide training for probate judges, court staff, and court-appointed professionals regarding the requirements of this act, including least restrictive alternatives, supported decision-making, and the rights of protected individuals and families.

The legislature shall appropriate funds as necessary to implement the data collection, training, and oversight functions required by this act.

Section 14. Severability and Effective Date.

If any provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.

This act shall take effect on a date to be determined and shall apply to proceedings commenced on or after that date, and to ongoing proceedings to the extent practicable and consistent with due process.