January 2024 Newsletter

Under Michigan’s current law, in most situations where a patient lacks capacity to consent to medical treatment but does not have a patient advocate designation or other alternative in place, it would be necessary to seek court appointment of a guardian to provide consent. 

Amending existing law to create a statutory priority for surrogates (including certain non-family members if no immediate family member is available) to consent to medical treatment on behalf of a patient who is temporarily or suddenly incapacitated would serve to reduce the number of individuals subject to guardianship proceedings in the state. 

If the proposed changes are adopted, an individual authorized to act as a surrogate medical decision maker would be subject to the same restrictions applicable to a designated patient advocate and would also be required to provide notice to interested persons if required to act more than 7 days.

It is an unfortunate reality that elder and vulnerable adults are at high risk of being subject to physical and emotional abuse, neglect, or financial exploitation at the hands of family members, friends, or other close associates. 

Michigan should follow the example of other states that have enacted legislation that would create authority for the issuance of a personal protection order (PPO) tailored to address the unique needs of this section of the population.  This type of PPO could be sought to both preemptively prohibit a person from engaging in specified acts and provide a mechanism to seek relief from past acts of abandonment, abuse, financial exploitation, or neglect. 

Violations of Michigan’s racketeering statute, which requires showing a pattern of criminal activity, generally carry a greater sentencing risk penalty, serving as an additional deterrent for engaging in the underlying offense. 

Adding vulnerable adult embezzlement and tax fraud to the list of predicate offenses that could result in a racketeering charge is warranted. In many cases of vulnerable adult embezzlement and tax fraud, the criminal activity isn’t discovered until it has been taking place for several years. Currently, restitution for these acts can only be sought for the money stolen within the six-year statute of limitations for those offenses. 

Expanding the racketeering statute to include these additional predicate offenses would increase the statute of limitations to hold a suspect accountable through punishment and to seek restitution upon conviction for up to ten years. 

Currently, the courts and guardians have unfettered discretion in imposing visitation limitations on family members or friends of a ward, which can lead to harmful isolation of the ward.

The Legislature is encouraged to amend EPIC to require the following: (1) a clear and convincing standard before the court can impose a visitation limitation; and (2) a good cause standard for the guardian who then must detail the reasons for the limitation, explain why no reasonable alternative exists, and then provide the written reasons to the court and the family member within 7 days or the limitation is lifted, and the guardian may be subject to removal.

Existing criminal statutes often do not cover conduct in which deceptive business practices are used to cheat elderly and vulnerable adults into fraudulent purchase transactions.  The effect of this conduct is particularly harmful to elderly victims, who are typically unable to recoup losses through future earnings. 

Therefore, legislation to enhance consumer protections for the elderly by imposing criminal penalties on certain fraudulent trade practices committed against persons 80 years and older and vulnerable adults is needed. The anticipated legislation would amend the Michigan Penal Code to add a new subsection specifically tailored to misconduct that is both fraudulent and repetitive and provide meaningful penalties to effectively punish and deter such conduct.

A multidisciplinary team is comprised of a group of individuals from different disciplines and organizations who work together, utilizing the benefit of their respective knowledge and perspective from various fields, toward addressing a common goal or issue. 

Legislation should be enacted that would provide authority for each county or region to have a standing Vulnerable Adult Multidisciplinary Team in place to further one or more of the following goals: 

Under the current law, a person that is alleged to be incapacitated has the right to obtain an examination from a “physician or mental health professional” prior to a court determining whether to grant a guardianship petition.  While these types of exams can provided helpful information for a court to consider regarding an individual’s medical diagnoses, information regarding an individual’s functional abilities may provide equally valuable information when deciding whether a guardianship should be granted, and, if so, whether a full or limited guardianship is appropriate. 

The law should be amended to provide a right to request either a medical exam or a functional assessment.  The functional assessment could be completed by a wider pool of providers including, social workers, occupational therapists, case managers, or psychologists working individually or within an interdisciplinary team.  A functional assessment could also determine what benefits, services and supports may be available or have already been obtained to address any existing limitations, which in turn could reduce the number of individuals subject to full guardianship.