January 27, 2015, Introduced by Rep. Forlini and referred to the Committee on Judiciary.
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending sections 1103, 1104, 1106, 1107, 3709, 3715, 5407,
5415, 5501, and 7817 (MCL 700.1103, 700.1104, 700.1106, 700.1107,
700.3709, 700.3715, 700.5407, 700.5415, 700.5501, and 700.7817),
section 1103 as amended by 2013 PA 157, sections 1104, 1106, 1107,
3715, and 5407 as amended by 2009 PA 46, section 5501 as amended by
2012 PA 141, and section 7817 as amended by 2010 PA 325, and by
adding sections 3715a, 3723, 5423a, 5501a, and 7912a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1103. As used in this act:
(a) "Agent" includes, but is not limited to, an attorney-in-
fact under a durable or nondurable power of attorney and an
individual authorized to make decisions as a patient advocate
concerning another's health care.
(b) "Application" means a written request to the probate
register for an order of informal probate or informal appointment
under part 3 of article III.
(c) "Attorney" means, if appointed to represent a child under
the provisions referenced in section 5213, an attorney as that term
is defined and serving as the child's legal advocate in the manner
defined
and described in section 13a of
chapter XIIA of the probate
code of 1939, 1939 PA 288, MCL 712A.13a.
(d) "Beneficiary" includes, but is not limited to, the
following:
(i) In relation to a trust, a person that is a trust
beneficiary as defined in section 7103.
(ii) In relation to a charitable trust, a person that is
entitled to enforce the trust.
(iii) In relation to a beneficiary of a beneficiary designation,
a person that is a beneficiary of an insurance or annuity policy,
of an account with POD designation, of a security registered in
beneficiary form (TOD), of a pension, profit-sharing, retirement,
or similar benefit plan, or of another nonprobate transfer at
death.
(iv) In relation to a beneficiary designated in a governing
instrument, a person that is a grantee of a deed, devisee, trust
beneficiary, beneficiary of a beneficiary designation, donee,
appointee, taker in default of a power of appointment, or person in
whose favor a power of attorney or power held in an individual,
fiduciary, or representative capacity is exercised.
(e) "Beneficiary designation" means the naming in a governing
instrument of a beneficiary of an insurance or annuity policy, of
an account with POD designation, of a security registered in
beneficiary form (TOD), of a pension, profit-sharing, retirement,
or similar benefit plan, or of another nonprobate transfer at
death.
(f) "Child" includes, but is not limited to, an individual
entitled to take as a child under this act by intestate succession
from the parent whose relationship is involved. Child does not
include an individual who is only a stepchild, a foster child, or a
grandchild or more remote descendant.
(g) "Claim" includes, but is not limited to, in respect to a
decedent's or protected individual's estate, a liability of the
decedent or protected individual, whether arising in contract,
tort, or otherwise, and a liability of the estate that arises at or
after the decedent's death or after a conservator's appointment,
including funeral and burial expenses and costs and expenses of
administration. Claim does not include an estate or inheritance
tax, or a demand or dispute regarding a decedent's or protected
individual's title to specific property alleged to be included in
the estate.
(h) "Conservator" means a person appointed by a court to
manage a protected individual's estate.
(i) "Cost-of-living adjustment factor" means a fraction, the
numerator of which is the United States consumer price index for
the prior calendar year and the denominator of which is the United
States consumer price index for 1997. As used in this subdivision,
"United States consumer price index" means the annual average of
the United States consumer price index for all urban consumers as
defined and reported by the United States department of labor,
bureau of labor statistics, or its successor agency, and as
certified by the state treasurer.
(j) "Court" means the probate court or, when applicable, the
family division of circuit court.
(k) "Descendant" means, in relation to an individual, all of
his or her descendants of all generations, with the relationship of
parent and child at each generation being determined by the
definitions of child and parent contained in this act.
(l) "Devise" means, when used as a noun, a testamentary
disposition of real or personal property and, when used as a verb,
to dispose of real or personal property by will.
(m) "Devisee" means a person designated in a will to receive a
devise. For the purposes of article II, for a devise to a trustee
of an existing trust or to a trustee under a will, the trustee is a
devisee and a beneficiary is not.
(n) "Digital account" means an electronic system for creating,
generating, sending, receiving, storing, displaying, or processing
electronic information that provides access to a digital asset or a
digital service.
(o) "Digital account holder" means a decedent, protected
individual, principal of a durable power of attorney, or settlor
who has a terms-of-service agreement with a digital custodian.
(p) "Digital asset" means electronic information created,
generated, sent, communicated, received, or stored by electronic
means on a digital service or digital device. Digital account
includes a username, word, character, code, or contract right under
a terms-of-service agreement.
(q) "Digital custodian" means a person that electronically
stores digital property of a digital account holder or otherwise
has control over digital property of the digital account holder.
(r) "Digital device" means an electronic device that can
receive, store, process, or send digital information.
(s) "Digital property" means the ownership and management of
and rights related to a digital account and digital asset.
(t) "Digital service" means the delivery of digital
information, such as data or content, and transactional services,
such as online forms and benefits applications, across a variety of
platforms, devices, and delivery mechanisms, such as websites,
mobile applications, and social media.
(u) (n)
"Disability" means cause
for a protective order as
described in section 5401.
(v) (o)
"Distributee" means a
person that receives a
decedent's property from the decedent's personal representative or
trust property from the trustee other than as a creditor or
purchaser. A trustee of a trust created by will is a distributee
only to the extent that distributed property or an increment of the
distributed property remains in the trustee's hands. A beneficiary
of a trust created by will to whom the trustee distributes property
received from a personal representative is a distributee of the
personal representative. For the purposes of this subdivision,
"trustee of a trust created by will" includes a trustee to whom
property is transferred by will to the extent of the devised
property.
(w) (p)
"Do-not-resuscitate
order" means that term as defined
in section 2 of the Michigan do-not-resuscitate procedure act, 1996
PA 193, MCL 333.1052.
Sec. 1104. As used in this act:
(a) "Electronic" means relating to technology having
electronic, digital, magnetic, wireless, optical, electromagnetic,
or similar capabilities.
(b) "Electronic information" includes data, text, images,
sounds, audiovisual works, codes, computer programs, software, and
databases.
(c) "Electronic record" means electronic information that is
inscribed on a tangible medium or that is stored in an electronic
or other medium and is retrievable in a perceivable form.
(d) (a)
"Environmental law" means
a federal, state, or local
law, rule, regulation, or ordinance that relates to the protection
of the environment or human health.
(e) (b)
"Estate" includes the
property of the decedent, trust,
or other person whose affairs are subject to this act as the
property is originally constituted and as it exists throughout
administration. Estate also includes the rights described in
sections 3805, 3922, and 7606 to collect from others amounts
necessary to pay claims, allowances, and taxes.
(f) (c)
"Exempt property" means
property of a decedent's
estate that is described in section 2404.
(g) (d)
"Family allowance" means
the allowance prescribed in
section 2403.
(h) (e)
"Fiduciary" includes, but
is not limited to, a
personal representative, guardian, conservator, trustee, plenary
guardian, partial guardian, and successor fiduciary.
(i) (f)
"Financial institution"
means an organization
authorized to do business under state or federal laws relating to a
financial institution and includes, but is not limited to, a bank,
trust company, savings bank, building and loan association, savings
and loan company or association, credit union, insurance company,
and entity that offers mutual fund, securities brokerage, money
market, or retail investment accounts.
(j) (g)
"Foreign personal
representative" means a personal
representative appointed by another jurisdiction.
(k) (h)
"Formal proceedings"
means proceedings conducted
before a judge with notice to interested persons.
(l) (i)
"Funeral establishment"
means that term as defined in
section 1801 of the occupational code, 1980 PA 299, MCL 339.1801,
and the owners, employees, and agents of the funeral establishment.
(m) (j)
"General personal
representative" means a personal
representative other than a special personal representative.
(n) (k)
"Governing instrument"
means a deed; will; trust;
insurance or annuity policy; account with POD designation; security
registered in beneficiary form (TOD); pension, profit-sharing,
retirement, or similar benefit plan; instrument creating or
exercising a power of appointment or a power of attorney; or
dispositive, appointive, or nominative instrument of any similar
type.
(o) (l) "Guardian"
means a person who has qualified as a
guardian of a minor or a legally incapacitated individual under a
parental or spousal nomination or a court appointment and includes
a limited guardian as described in sections 5205, 5206, and 5306.
Guardian does not include a guardian ad litem.
(p) (m)
"Hazardous substance"
means a substance defined as
hazardous or toxic or otherwise regulated by an environmental law.
(q) (n)
"Heir" means, except as
controlled by section 2720, a
person, including the surviving spouse or the state, that is
entitled under the statutes of intestate succession to a decedent's
property.
(r) (o)
"Homestead allowance"
means the allowance prescribed
in section 2402.
Sec. 1106. As used in this act:
(a) "Mental health professional" means an individual who is
trained and experienced in the area of mental illness or
developmental disabilities and who is 1 of the following:
(i) A physician who is licensed to practice medicine or
osteopathic medicine and surgery in this state under article 15 of
the public health code, 1978 PA 368, MCL 333.16101 to 333.18838.
(ii) A psychologist licensed to practice in this state under
article 15 of the public health code, 1978 PA 368, MCL 333.16101 to
333.18838.
(iii) A registered professional nurse licensed to practice in
this state under article 15 of the public health code, 1978 PA 368,
MCL 333.16101 to 333.18838.
(iv) A licensed master's social worker licensed under article
15 of the public health code, 1978 PA 368, MCL 333.16101 to
333.18838.
(v) A physician's assistant licensed to practice in this state
under article 15 of the public health code, 1978 PA 368, MCL
333.16101 to 333.18838.
(vi) A licensed professional counselor licensed under part 181
of the public health code, 1978 PA 368, MCL 333.18101 to 333.18117.
(b) "Michigan prudent investor rule" means the fiduciary
investment and management rule prescribed by part 5 of this
article.
(c) "Minor" means an individual who is less than 18 years of
age.
(d) "Minor ward" means a minor for whom a guardian is
appointed solely because of minority.
(e) "Money" means legal tender or a note, draft, certificate
of deposit, stock, bond, check, or credit card.
(f) "Mortgage" means a conveyance, agreement, or arrangement
in which property is encumbered or used as security.
(g) "Nonresident decedent" means a decedent who was domiciled
in another jurisdiction at the time of his or her death.
(h) "Organization" means a corporation, business trust,
estate, trust, partnership, limited liability company, association,
or joint venture; governmental subdivision, agency, or
instrumentality; public corporation; or another legal or commercial
entity.
(i) "Parent" includes, but is not limited to, an individual
entitled to take, or who would be entitled to take, as a parent
under this act by intestate succession from a child who dies
without a will and whose relationship is in question. Parent does
not include an individual who is only a stepparent, foster parent,
or grandparent.
(j) "Partial guardian" means that term as defined in section
600 of the mental health code, 1974 PA 258, MCL 330.1600.
(k) "Patient advocate" means an individual designated to
exercise powers concerning another individual's care, custody, and
medical or mental health treatment or authorized to make an
anatomical gift on behalf of another individual, or both, as
provided in section 5506.
(l) "Patient advocate designation" means the written document
executed and with the effect as described in sections 5506 to 5515.
(m) "Payor" means a trustee, insurer, business entity,
employer, government, governmental subdivision or agency, or other
person authorized or obligated by law or a governing instrument to
make payments.
(n) "Person" means an individual or an organization.
(o) "Personal representative" includes, but is not limited to,
an executor, administrator, successor personal representative, and
special personal representative, and any other person, other than a
trustee of a trust subject to article VII, who performs
substantially the same function under the law governing that
person's status.
(p) "Petition" means a written request to the court for an
order after notice.
(q) "Plenary guardian" means that term as defined in section
600 of the mental health code, 1974 PA 258, MCL 330.1600.
(r) "Proceeding" includes an application and a petition, and
may be an action at law or a suit in equity. A proceeding may be
denominated a civil action under court rules.
(s) "Professional conservator" means a person that provides
conservatorship services for a fee. Professional conservator does
not include a person who is an individual who is related to all but
2 of the protected individuals for whom he or she is appointed as
conservator.
(t) "Professional guardian" means a person that provides
guardianship services for a fee. Professional guardian does not
include a person who is an individual who is related to all but 2
of the wards for whom he or she is appointed as guardian.
(u) "Property" means anything that may be the subject of
ownership, and includes both real and personal property or an
interest in real or personal property. Property includes digital
property.
(v) "Protected individual" means a minor or other individual
for whom a conservator has been appointed or other protective order
has been made as provided in part 4 of article V.
(w) "Protective proceeding" means a proceeding under the
provisions of part 4 of article V.
Sec. 1107. As used in this act:
(a) "Register" or "probate register" means the official of the
court designated to perform the functions of register as provided
in section 1304.
(b) "Revised judicature act of 1961" means the revised
judicature act of 1961, 1961 PA 236, MCL 600.101 to 600.9947.
(c) "Security" includes, but is not limited to, a note, stock,
treasury stock, bond, debenture, evidence of indebtedness,
certificate of interest or participation in an oil, gas, or mining
title or lease or in payments out of production under such a title
or lease, collateral trust certificate, transferable share, voting
trust certificate, or interest in a regulated investment company or
other entity generally referred to as a mutual fund or, in general,
an interest or instrument commonly known as a security, or a
certificate of interest or participation for, a temporary or
interim certificate, receipt, or certificate of deposit for, or any
warrant or right to subscribe to or purchase any of the items
listed in this subdivision.
(d) "Settlement" means, in reference to a decedent's estate,
the full process of administration, distribution, and closing.
(e) "Special personal representative" means a personal
representative as described by sections 3614 to 3618.
(f) "State" means a state of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, or a territory or
insular possession subject to the jurisdiction of the United
States.
(g) "Successor" means a person, other than a creditor, who is
entitled to property of a decedent under the decedent's will or
this act.
(h) "Successor personal representative" means a personal
representative, other than a special personal representative, who
is appointed to succeed a previously appointed personal
representative.
(i) "Supervised administration" means the proceedings
described in part 5 of article III.
(j) "Survive" means that an individual neither predeceases an
event, including the death of another individual, nor is considered
to predecease an event under section 2104 or 2702.
(k) "Terms-of-service agreement" means a contract that
controls the relationship between a digital account holder and a
digital custodian. Terms-of-service agreement includes a terms-of-
use agreement.
(l) (k)
"Terms of a trust" or
"terms of the trust" means the
manifestation of the settlor's intent regarding a trust's
provisions as expressed in the trust instrument or as may be
established by other evidence that would be admissible in a
judicial proceeding.
(m) (l) "Testacy
proceeding" means a proceeding to establish a
will or determine intestacy.
(n) (m)
"Testator" includes an
individual of either gender.
(o) (n)
"Trust" includes, but is
not limited to, an express
trust, private or charitable, with additions to the trust, wherever
and however created. Trust includes, but is not limited to, a trust
created or determined by judgment or decree under which the trust
is to be administered in the manner of an express trust. Trust does
not include a constructive trust or a resulting trust,
conservatorship, personal representative, custodial arrangement
under the Michigan uniform transfers to minors act, 1998 PA 433,
MCL 554.521 to 554.552, business trust providing for a certificate
to be issued to a beneficiary, common trust fund, voting trust,
security arrangement, liquidation trust, or trust for the primary
purpose of paying debts, dividends, interest, salaries, wages,
profits, pensions, or employee benefits of any kind, or another
arrangement under which a person is a nominee or escrowee for
another.
(p) (o)
"Trustee" includes an
original, additional, or
successor trustee, whether or not appointed or confirmed by the
court.
Sec. 3709. (1) Except as otherwise provided by a decedent's
will
or by this section, a personal representative has a right to ,
and, if necessary for purposes of administration, shall take
possession
or control of , the
decedent's property, other than
digital property subject to subsection (2), except that real
property or tangible personal property may be left with or
surrendered to the person presumptively entitled to that property
unless or until, in the personal representative's judgment,
possession of the property will be necessary for purposes of
administration. A personal representative's request for delivery of
property possessed by an heir or devisee is conclusive evidence, in
an action against the heir or devisee for possession of that
property, that the possession of the property by the personal
representative is necessary for purposes of administration. The
personal representative shall pay taxes on, and take all steps
reasonably necessary for the management, protection, and
preservation of, the estate in the personal representative's
possession. The personal representative may maintain an action to
recover possession of, or to determine the title to, property.
(2) Except as otherwise provided by a decedent's will, and
subject to applicable state and federal law, including copyright
law and a terms-of-service agreement, with respect to a decedent's
digital property, a personal representative has the lawful consent
of the decedent and is an authorized user under all applicable
state and federal statutes. A personal representative has the right
to, and if necessary for purposes of administration shall, exercise
control over the decedent's digital property. A personal
representative's written request for access to, or control of,
digital property is conclusive evidence in any action that the
access to, exercise of control of, or both, digital property by the
personal representative is necessary for purposes of
administration. The personal representative may maintain an action
to gain access to, exercise control of, or both, digital property
in accordance with section 3715a.
Sec. 3715. Except as restricted or otherwise provided by the
will or by an order in a formal proceeding, and subject to the
priorities stated in section 3902, a personal representative,
acting reasonably for the benefit of interested persons, may
properly do any of the following:
(a) Retain property owned by the decedent pending distribution
or liquidation, including property in which the personal
representative is personally interested or that is otherwise
improper for trust investment.
(b) Receive property from a fiduciary or another source.
(c) Perform, compromise, or refuse performance of a contract
of the decedent that continues as an estate obligation, as the
personal representative determines under the circumstances. If the
contract is for a conveyance of land and requires the giving of
warranties, the personal representative shall include in the deed
or other instrument of conveyance the required warranties. The
warranties are binding on the estate as though the decedent made
them but do not bind the personal representative except in a
fiduciary capacity. In performing an enforceable contract by the
decedent to convey or lease land, the personal representative,
among other possible courses of action, may do any of the
following:
(i) Execute and deliver a deed of conveyance for cash payment
of the amount remaining due or for the purchaser's note for the
amount remaining due secured by a mortgage on the land.
(ii) Deliver a deed in escrow with directions that the
proceeds, when paid in accordance with the escrow agreement, be
paid to the decedent's successors, as designated in the escrow
agreement.
(d) If, in the judgment of the personal representative, the
decedent would have wanted the pledge satisfied under the
circumstances, satisfy a written charitable pledge of the decedent
irrespective of whether the pledge constitutes a binding obligation
of the decedent or is properly presented as a claim.
(e)
If funds are money is not needed to meet a debt or
expenses
currently payable and are is
not immediately
distributable, deposit or invest liquid assets of the estate,
including
funds money received from the sale of other property, in
accordance with the Michigan prudent investor rule.
(f) Acquire or dispose of property, including land in this or
another state, for cash or on credit, at public or private sale;
and manage, develop, improve, exchange, partition, change the
character of, or abandon estate property.
(g) Make an ordinary or extraordinary repair or alteration in
a building or other structure, demolish an improvement, or raze an
existing or erect a new party wall or building.
(h) Subdivide, develop, or dedicate land to public use, make
or obtain the vacation of a plat or adjust a boundary, adjust a
difference in valuation on exchange or partition by giving or
receiving consideration, or dedicate an easement to public use
without consideration.
(i) Enter into a lease as lessor or lessee for any purpose,
with or without an option to purchase or renew, for a term within
or extending beyond the period of administration.
(j) Enter into a lease or arrangement for exploration and
removal of minerals or another natural resource, or enter into a
pooling or unitization agreement.
(k)
Abandon property when, if,
in the opinion of the personal
representative, it is valueless, or is so encumbered or in such a
condition as to be of no benefit to the estate.
(l) Vote stocks or another security in person or by general or
limited proxy.
(m) Pay a call, assessment, or other amount chargeable or
accruing against or on account of a security, unless barred by a
provision relating to claims.
(n) Hold a security in the name of a nominee or in other form
without disclosure of the estate's interest. However, the personal
representative is liable for an act of the nominee in connection
with the security so held.
(o) Insure the estate property against damage, loss, and
liability and insure the personal representative against liability
as to third persons.
(p) Borrow property with or without security to be repaid from
the estate property or otherwise, and advance money for the
estate's protection.
(q) Effect a fair and reasonable compromise with a debtor or
obligor, or extend, renew, or in any manner modify the terms of an
obligation owing to the estate. If the personal representative
holds
a mortgage, pledge, or other lien upon on another person's
property, the personal representative may, in lieu of foreclosure,
accept a conveyance or transfer of encumbered property from the
property's owner in satisfaction of the indebtedness secured by
lien.
(r) Pay a tax, an assessment, the personal representative's
compensation, or another expense incident to the estate's
administration.
(s) Sell or exercise a stock subscription or conversion right.
(t) Consent, directly or through a committee or other agent,
to the reorganization, consolidation, merger, dissolution, or
liquidation of a corporation or other business enterprise.
(u) Allocate items of income or expense to either estate
income or principal, as permitted or provided by law.
(v) Employ, and pay reasonable compensation for reasonably
necessary services performed by, a person, including, but not
limited to, an auditor, investment advisor, or agent, even if the
person is associated with the personal representative, to advise or
assist the personal representative in the performance of
administrative duties; act on such a person's recommendations
without independent investigation; and, instead of acting
personally, employ 1 or more agents to perform an act of
administration, whether or not discretionary.
(w) Employ an attorney to perform necessary legal services or
to advise or assist the personal representative in the performance
of the personal representative's administrative duties, even if the
attorney is associated with the personal representative, and act
without
independent investigation upon on
the attorney's
recommendation. An attorney employed under this subdivision shall
receive reasonable compensation for his or her employment.
(x) Prosecute or defend a claim or proceeding in any
jurisdiction for the protection of the estate and of the personal
representative in the performance of the personal representative's
duties.
(y) Sell, mortgage, or lease estate property or an interest in
estate property for cash, credit, or part cash and part credit, and
with or without security for unpaid balances.
(z) Continue a business or venture in which the decedent was
engaged at the time of death as a sole proprietor or a general
partner, including continuation as a general partner by a personal
representative that is a corporation, in any of the following
manners:
(i) In the same business form for a period of not more than 4
months after the date of appointment of a general personal
representative if continuation is a reasonable means of preserving
the value of the business, including goodwill.
(ii) In the same business form for an additional period of time
if approved by court order in a formal proceeding to which the
persons interested in the estate are parties.
(iii) Throughout the period of administration if the personal
representative incorporates the business or converts the business
to a limited liability company and if none of the probable
distributees of the business who are competent adults object to its
incorporation or conversion and its retention in the estate.
(aa) Change the form of a business or venture in which the
decedent was engaged at the time of death through incorporation or
formation as a limited liability company or other entity offering
protection against or limiting exposure to liabilities.
(bb) Provide for the personal representative's exoneration
from personal liability in a contract entered into on the estate's
behalf.
(cc) Respond to an environmental concern or hazard affecting
estate property as provided in section 3722.
(dd) Satisfy and settle claims and distribute the estate as
provided in this act.
(ee) Make, revise, or revoke an available allocation, consent,
or election in connection with a tax matter as appropriate in order
to carry out the decedent's estate planning objectives and to
reduce the overall burden of taxation, both in the present and in
the future. This authority includes, but is not limited to, all of
the following:
(i) Electing to take expenses as estate tax or income tax
deductions.
(ii) Electing to allocate the exemption from the tax on
generation skipping transfers among transfers subject to estate or
gift tax.
(iii) Electing to have all or a portion of a transfer for a
spouse's benefit qualify for the marital deduction.
(iv) Electing the date of death or an alternate valuation date
for federal estate tax purposes.
(v) Excluding or including property from the gross estate for
federal estate tax purposes.
(vi) Valuing property for federal estate tax purposes.
(vii) Joining with the surviving spouse or the surviving
spouse's personal representative in the execution and filing of a
joint income tax return and consenting to a gift tax return filed
by the surviving spouse or the surviving spouse's personal
representative.
(ff) Divide portions of the estate, including portions to be
allocated into trust, into 2 or more separate portions or trusts
with substantially identical terms and conditions, and allocate
property between them, in order to simplify administration for
generation skipping transfer tax purposes, to segregate property
for management purposes, or to meet another estate or trust
objective.
(gg) Subject to state and federal law, including copyright
law, and the applicable terms-of-service agreement, exercise
control over the decedent's digital property.
Sec. 3715a. (1) Within 56 days after receipt of a personal
representative's written request for access to digital property,
ownership of digital property, or a copy of a digital asset, a
digital custodian shall provide the personal representative with
the requested access, ownership, or copy, as applicable. A personal
representative's written request under this subsection must be
accompanied by a certified copy of letters issued to the personal
representative. If the digital custodian fails to comply with the
request, the personal representative may petition the court for an
order directing compliance.
(2) A digital custodian is not liable for an action done in
compliance with subsection (1).
Sec. 3723. (1) A person interested in the estate may file a
petition with the court for an order to limit or eliminate a
personal representative's power over digital property.
(2) On receipt of a petition under this section, 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.
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 state and federal law, including copyright law,
and 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 state and federal law, including copyright law, and
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) Within 56 days after receipt of a
conservator's written request 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. If the digital custodian fails to comply with the
request or order, the conservator may petition the court for an
order directing compliance.
(2) A digital custodian is not liable for an action done in
compliance with subsection (1).
Sec. 5501. (1) A durable power of attorney is a power of
attorney by which a principal designates another as the principal's
attorney
in fact attorney-in-fact in a writing that contains the
words "This power of attorney is not affected by the principal's
subsequent disability or incapacity, or by the lapse of time", or
"This power of attorney is effective upon the disability or
incapacity of the principal", or similar words showing the
principal's intent that the authority conferred is exercisable
notwithstanding the principal's subsequent disability or incapacity
and, unless the power states a termination time, notwithstanding
the lapse of time since the execution of the instrument.
(2)
A durable power of attorney under this section shall must
be dated and signed voluntarily by the principal or signed by a
notary
public on the principal's behalf pursuant to under section
33 of the Michigan notary public act, 2003 PA 238, MCL 55.293. The
durable
power of attorney shall must
be 1 or both of the following:
(a) Signed in the presence of 2 witnesses, neither of whom is
the attorney-in-fact, and both of whom also sign the durable power
of attorney.
(b) Acknowledged by the principal before a notary public, who
endorses on the durable power of attorney a certificate of that
acknowledgment and the true date of taking the acknowledgment.
(3) An attorney-in-fact designated and acting under a durable
power of attorney has the authority, rights, responsibilities, and
limitations as provided by law with respect to a durable power of
attorney, including, but not limited to, all of the following:
(a) Except as provided in the durable power of attorney, the
attorney-in-fact shall act in accordance with the standards of care
applicable to fiduciaries exercising powers under a durable power
of attorney.
(b) The attorney-in-fact shall take reasonable steps to follow
the instructions of the principal.
(c) Upon request of the principal, the attorney-in-fact shall
keep the principal informed of the attorney-in-fact's actions. The
attorney-in-fact shall provide an accounting to the principal upon
request of the principal, to a conservator or guardian appointed on
behalf of the principal upon request of the guardian or
conservator, or pursuant to judicial order.
(d) The attorney-in-fact shall not make a gift of all or any
part of the principal's assets, unless provided for in the durable
power of attorney or by judicial order.
(e) Unless provided in the durable power of attorney or by
judicial order, the attorney-in-fact, while acting as attorney-in-
fact, shall not create an account or other asset in joint tenancy
between the principal and the attorney-in-fact.
(f) Unless provided in the durable power of attorney or by
judicial order and subject to state and federal law, including
copyright law, and the applicable terms-of-service agreement, the
attorney-in-fact, while acting as attorney-in-fact, shall not do
any of the following:
(i) Exercise control over digital property.
(ii) Exercise a right in digital property.
(iii) Change a governing instrument affecting the digital
property.
(g) (f)
The attorney-in-fact shall maintain
records of the
attorney-in-fact's actions on behalf of the principal, including
transactions, receipts, disbursements, and investments.
(h) (g)
The attorney-in-fact may be liable
for any damage or
loss to the principal, and may be subject to any other available
remedy, for breach of fiduciary duty owed to the principal. In the
durable power of attorney, the principal may exonerate the
attorney-in-fact of any liability to the principal for breach of
fiduciary duty except for actions committed by the attorney-in-fact
in bad faith or with reckless indifference. An exoneration clause
is not enforceable if inserted as the result of an abuse by the
attorney-in-fact of a fiduciary or confidential relationship to the
principal.
(i) (h)
The attorney-in-fact may receive
reasonable
compensation for the attorney-in-fact's services if provided for in
the durable power of attorney.
(4) Before exercising authority under a durable power of
attorney, an attorney-in-fact shall execute an acknowledgment of
the attorney-in-fact's responsibilities that contains all of the
substantive statements in substantially the following form:
I, ____________________, have been appointed as attorney-in-
fact for ________________________, the principal, under a durable
power of attorney dated __________. By signing this document, I
acknowledge that if and when I act as attorney-in-fact, all of the
following apply:
(a) Except as provided in the durable power of attorney, I
must act in accordance with the standards of care applicable to
fiduciaries acting under durable powers of attorney.
(b) I must take reasonable steps to follow the instructions of
the principal.
(c) Upon request of the principal, I must keep the principal
informed of my actions. I must provide an accounting to the
principal upon request of the principal, to a guardian or
conservator appointed on behalf of the principal upon the request
of that guardian or conservator, or pursuant to judicial order.
(d) I cannot make a gift from the principal's property, unless
provided for in the durable power of attorney or by judicial order.
(e) Unless provided in the durable power of attorney or by
judicial
order, I, while acting as attorney-in-fact, shall not
cannot create an account or other asset in joint tenancy between
the principal and me.
(f) Unless provided in the durable power of attorney or by
judicial order and subject to state and federal law, including
copyright law, and the applicable terms-of-service agreement, I,
while acting as attorney-in-fact, cannot do any of the following:
(i) Exercise control over the principal's digital property.
(ii) Exercise a right in the principal's digital property.
(iii) Change a governing instrument affecting the principal's
digital property.
(g) (f)
I must maintain records of my
transactions as
attorney-in-fact, including receipts, disbursements, and
investments.
(h) (g)
I may be liable for any damage or
loss to the
principal, and may be subject to any other available remedy, for
breach of fiduciary duty owed to the principal. In the durable
power of attorney, the principal may exonerate me of any liability
to the principal for breach of fiduciary duty except for actions
committed by me in bad faith or with reckless indifference. An
exoneration clause is not enforceable if inserted as the result of
my abuse of a fiduciary or confidential relationship to the
principal.
(i) (h)
I may be subject to civil or
criminal penalties if I
violate my duties to the principal.
Signature: _______________________ Date: ____________________
(5) A third party is not liable to the principal or any other
person because the third party has complied in good faith with
instructions from an attorney-in-fact named in a durable power of
attorney whether or not the attorney-in-fact has executed an
acknowledgment that complies with subsection (4). A third party is
not liable to the principal or any other person if the third party
requires an attorney-in-fact named in a durable power of attorney
to execute an acknowledgment that complies with subsection (4)
before recognizing the durable power of attorney.
(6) An attorney-in-fact's failure to comply with subsection
(4) does not affect the attorney-in-fact's authority to act for the
principal as provided for in the durable power of attorney and does
not affect the attorney-in-fact's responsibilities or potential
liability to the principal.
(7)
Subsections Except as
otherwise provided in this
subsection, subsections (2) to (6) do not apply to any of the
following:
(a) A durable power of attorney executed before October 1,
2012. Subsections (3)(f) and (4)(f) do not apply to a durable power
of attorney executed before October 1, 2015.
(b) A delegation under section 5103 or a similar power of
attorney created by a parent or guardian regarding the care,
custody, or property of a minor child or ward.
(c) A patient advocate designation or a similar power of
attorney relating to the principal's health care.
(d) A durable power of attorney that is coupled with an
interest in the subject matter of the power.
(e) A durable power of attorney that is contained in or is
part of a loan agreement, security agreement, pledge agreement,
escrow agreement, or other similar transaction.
(f) A durable power of attorney in connection with a
transaction with a joint venture, limited liability company,
partnership, limited partnership, limited liability partnership,
corporation, condominium, condominium association, condominium
trust, or similar entity, including, without limitation, a voting
agreement, voting trust, joint venture agreement, royalty
agreement, license agreement, proxy, shareholder's agreement,
operating agreement, partnership agreement, management agreement,
subscription agreement, certification of incorporation, bylaws, or
other agreement that primarily relates to such an entity.
(g) A power of attorney given primarily for a business or a
commercial purpose.
(h) A power of attorney created on a form prescribed by a
government or a governmental subdivision, agency, or
instrumentality for a governmental purpose.
Sec. 5501a. (1) Within 56 days after receipt of an attorney-
in-fact's written request for access to digital property, ownership
of digital property, or a copy of a digital asset, a digital
custodian shall provide the attorney-in-fact with the requested
access, ownership, or copy, as applicable. An attorney-in-fact's
written request under this subsection must be accompanied by a copy
of the durable power of attorney granting the attorney-in-fact
power over digital property. If the digital custodian fails to
comply with the request, the attorney-in-fact may petition the
court for an order directing compliance.
(2) A digital custodian is not liable for an action done in
compliance with subsection (1).
Sec. 7817. Without limiting the authority conferred by section
7816, a trustee has all of the following powers:
(a) To take possession, custody, or control of property
transferred to the trust and accept or reject additions to the
trust.
(b) To retain property that the trustee receives, including
property in which the trustee is personally interested, in
accordance with the Michigan prudent investor rule.
(c) To receive property from a fiduciary or another source
that is acceptable to the trustee.
(d) To perform, compromise, or refuse to perform a contract of
the settlor that is an obligation of the trust, as the trustee may
determine under the circumstances. In performing an enforceable
contract by the settlor to convey or lease land, if the contract
for a conveyance requires the giving of a warranty, the deed or
other instrument of conveyance to be given by the trustee shall
contain the warranty required. The warranty is binding on the trust
as though made by the settlor, but does not bind the trustee except
in the trustee's fiduciary capacity. The trustee, among other
possible courses of action, may do either of the following:
(i) Execute and deliver a deed of conveyance for cash payment
of money remaining due or the purchaser's note for the money
remaining due secured by a mortgage on the land.
(ii) Deliver a deed in escrow with directions that the
proceeds, when paid in accordance with the escrow agreement, be
paid to the trustee, as designated in the escrow agreement.
(e) To satisfy a settlor's written charitable pledge
irrespective of whether the pledge constitutes a binding obligation
of the settlor or was properly presented as a claim, if in the
trustee's judgment the settlor would have wanted the pledge
completed under the circumstances.
(f) To deposit trust property in a financial institution,
including a financial institution operated by or affiliated with
the trustee and to invest and reinvest trust property as would a
prudent investor acting in accordance with the Michigan prudent
investor rule and to deposit securities with a depositary or other
financial institution.
(g) To acquire property, including property in this or another
state or country, in any manner for cash or on credit, at public or
private sale; and to manage, develop, improve, exchange, partition,
or change the character of trust property.
(h) To make an ordinary or extraordinary repair or alteration
in a building or another structure, to demolish an improvement, or
to raze an existing or erect a new party wall or building.
(i) To subdivide, develop, or dedicate land to public use; to
make or obtain the vacation of a plat or adjust a boundary; to
adjust a difference in valuation on exchange or partition by giving
or receiving consideration; or to dedicate an easement to public
use without consideration.
(j) To enter for any purpose into a lease as lessor or lessee,
with or without an option to purchase or renew, for a period within
or extending beyond the duration of the trust.
(k) To enter into a lease or arrangement for exploration and
removal of minerals or another natural resource or to enter into a
pooling or unitization agreement for a period within or extending
beyond the duration of the trust.
(l) To abandon or decline to administer property if, in the
trustee's opinion, the property is valueless, or is so encumbered
or in such a condition that it is of no benefit to the trust.
(m) To vote a stock or other security in person, by general or
limited proxy, or in another manner provided by law, or enter into
or continue a voting trust agreement.
(n) To pay a call, assessment, or other amount chargeable or
accruing against or on account of a security, and sell or exercise
stock subscription or conversion rights.
(o) To hold property in the name of a nominee or in another
form without disclosure of the interest of the trust. However, the
trustee is liable for an act of the nominee in connection with the
property so held.
(p) To insure the trust property against damage, loss, or
liability and to insure the trustee, the trustee's agents, and the
trust beneficiaries against liability arising from the
administration of the trust.
(q) To borrow property, with or without security, for any
purpose from the trustee or others and to mortgage or pledge trust
property for a period within or extending beyond the duration of
the trust.
(r) To effect a fair and reasonable compromise with a debtor
or obligor, or extend, renew, or in any manner modify the terms of
an obligation owing to the trust. If the trustee holds a mortgage,
pledge, or another lien on property of another person, the trustee
may, instead of foreclosure, accept a conveyance or transfer of
encumbered property from the property's owner in satisfaction of
the indebtedness secured by a lien.
(s) To pay a tax, an assessment, the trustee's compensation,
or another expense incident to the administration of the trust.
(t) To sell or exercise a subscription or conversion right or
to consent, directly or through a committee or another agent, to
the reorganization, consolidation, merger, dissolution, or
liquidation of a business enterprise.
(u) To allocate an item of income or expense to either trust
income or principal, as permitted or provided by law.
(v) To employ, and pay reasonable compensation for services
performed by, a person, including an auditor, investment advisor,
accountant, appraiser, broker, custodian, rental agent, realtor, or
agent, even if the person is associated with the trustee, for the
purpose of advising or assisting the trustee in the performance of
an administrative duty; to act without independent investigation
upon
on such a person's recommendation; and, instead of
acting
personally, to employ 1 or more agents to perform an act of
administration, whether or not discretionary.
(w) To employ an attorney to perform necessary legal services
or to advise or assist the trustee in the performance of the
trustee's administrative duties, even if the attorney is associated
with
the trustee, and to act without independent investigation upon
on the attorney's recommendation. An attorney employed under this
subdivision shall receive reasonable compensation for his or her
employment.
(x) To prosecute, defend, arbitrate, settle, release,
compromise, or agree to indemnify an action, claim, or proceeding
in any jurisdiction or under an alternative dispute resolution
procedure. The trustee may act under this subdivision for the
trustee's protection in the performance of the trustee's duties.
(y) To sell, exchange, partition, or otherwise dispose of, or
grant an option with respect to, trust property for any purpose
upon
on any terms or conditions for a period within or
extending
beyond the duration of the trust.
(z) To continue or participate in a business or enterprise in
any manner, in any form, and for any length of time.
(aa) To change the form, in any manner, of a business or
enterprise in which the settlor was engaged at the time of death.
(bb) To provide for exoneration of the trustee from personal
liability in a contract entered into on behalf of the trust.
(cc) To respond to environmental concerns and hazards
affecting trust property as provided in section 7818.
(dd) To collect, pay, contest, settle, release, agree to
indemnify against, compromise, or abandon a claim of or against the
trust, including a claim against the trust by the trustee.
(ee) To respond to a tax matter as provided in section 7819.
(ff) To make a payment of money, or other property instead of
money, to or for a minor or incapacitated trust beneficiary as
provided in section 7820.
(gg) To make a distribution or division of trust property in
cash or in kind, or both; to allot a different kind or
disproportionate portion of, or an undivided interest in, trust
property among beneficiaries and determine the value of allotted
trust property; or to distribute an unclaimed share in the same
manner as described in section 3916.
(hh) To transfer the property of a trust to another
jurisdiction and appoint, compensate, or remove a successor
trustee, individual or corporate, for trust property in another
jurisdiction, with any trust powers set out in this part that the
trustee delegates to the successor trustee.
(ii) To execute and deliver an instrument that accomplishes or
facilitates the exercise of a power vested in the trustee.
(jj) To select a mode of payment under any employee benefit or
retirement plan, annuity, or life insurance payable to the trustee,
exercise rights thereunder, including exercise of the right to
indemnification for expenses and against liabilities, and take
appropriate action to collect the proceeds.
(kk) To make loans out of trust property, including loans to a
trust beneficiary on terms and conditions the trustee considers to
be fair and reasonable under the circumstances. The trustee has a
lien on future distributions for repayment of loans made under this
subdivision.
(ll) To pledge trust property to guarantee loans made by others
to the trust beneficiary.
(mm) To resolve a dispute concerning the interpretation of the
trust or its administration by mediation, arbitration, or other
procedure for alternative dispute resolution.
(nn) On termination of the trust, to exercise the powers
appropriate to wind up the administration of the trust and
distribute the trust property to the persons entitled to it.
(oo) Subject to state and federal law, including copyright
law, and the applicable terms-of-service agreement, exercise
control over and rights in digital property according to the terms
of the trust.
Sec. 7912a. (1) Within 56 days after receipt of a trustee's
written request for access to digital property, ownership of
digital property, or a copy of a digital asset, a digital custodian
shall provide the trustee with the requested access, ownership, or
copy, as applicable. A trustee's written request under this
subsection must be accompanied by a certificate of trust. If the
digital custodian fails to comply with the request, the trustee may
petition the court for an order directing compliance.
(2) A digital custodian is not liable for an action done in
compliance with subsection (1).