Public Act 386 "EPIC"

Michigan’s Estates and Protected Individuals Code, Public Act 386
“EPIC”
History: 1998, Act 386, Eff. Apr. 1, 2000

A brief description of EPIC and Proposed Amendment, Michigan House Bill No. 4331

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WHAT IS EPIC?
The Estates and Protected Individuals Code governs the affairs and estates of protected persons and the administration of estates of deceased– over which probate courts have jurisdiction. It was created to “codify, revise, consolidate, and classify aspects of” all Michigan laws that influence matters in these areas. It replaces some Acts and parts of other others; in specific instances, EPIC defers itself to a Michigan Court Rule. In other words, IT IS THE SUPREME LAW CONCERNING GUARDIANSHIP AND CONSERVATORSHIP IN MICHIGAN, drawing other laws into a package for comprehensive reference.

EPIC is 153 pages long, divided into eight sections; first section defines terms, general provisions and court jurisdiction. The Division concerning Guardianships and Conservatorships is ARTICLE V - PROTECTION OF AN INDIVIDUAL UNDER DISABILITY AND HIS OR HER PROPERTY (700.5101...700.5520). Rules are specific; to the fair-minded, they are sensible and easily understood. (I recently wrote a letter to Michigan’s Judicial Tenure Commission and mentioned what I thought about the law.) 1Extract

From personal experience and research, it appears that respectable probate/civil court administrators and judges in Michigan have standardized court administration and proceedings to enforce EPIC’s rules. Everything from filing systems to petition procedures are mandated by this law. Some judges are considered ‘experts’ on EPIC. However, there are ‘renegade’ courts in Michigan – such as in Wayne, Oakland and Macomb counties (around Detroit), often referred to as “bad boy networks” or similar, where disregard of EPIC is conspicuously blatant among judges and attorneys.

WHO KNOWS ABOUT EPIC?
Not too many people in Michigan. Estate planning attorneys do. It is the essential handbook for Registered/Certified (“Public”) Guardians and Pro Se Litigants in guardianship proceedings and care of a ‘ward’ (person for whom a guardian has been appointed). Probate judges, court attorneys & administrators should know it like they know their toothbrushes, but this might not be evident. Of attorneys practicing outside its areas of government, probably few know about or access the law. Most of the Public, including many people who are involved in probate matters, do not know that EPIC exists.


GUARDIANSHIP IN MICHIGAN
The Michigan Guardianship Association certifies individuals from all occupations as Public Guardians and Conservators/fiduciaries; knowledge of EPIC rules is required. They are appointed by the court in EPIC-ruled order of succession when and if an “Interested Person” is unable, unwilling or unqualified to serve. EPIC did not outlaw the practice of judges appointing attorneys as professional guardians and conservators, so some judges will skirt the law and appoint G-C’s out of succession – in contested cases, for spite, or to favor an Attorney-Public Guardian. In the renegade counties, these attorneys are on (what is supposed to be) a rotating roster, awaiting guardianship and conservatorship appointments. Some attorneys are guardian/conservator for as many as 200-300 LII’s & DD’s, collecting fees for administration of estates, etc. Appointing attorneys as guardians is considered archaic and has been banned in Michigan probate courts that are more progressive. Certified Public Guardians who work independently or with an agency are preferred if a judge determines that an Interested Person cannot serve.


* I AM NOT A LEGAL PROFESSIONAL.
1Extract
“I like EPIC. It is comprehensive and true to its concept; language is concise and easily understandable by the Public – hallmarks of a ‘good law’. It pares down the ‘wiggle room’ for its interpretation. Shall = must; may = do or do not, in best interest of subject; as required = must, or observe other specified law. Sometimes, EPIC recommends certain consequences if rules are ignored, such as CONTEMPT OF COURT or LOSE YOUR JOB. Luckily, those things rarely happen because the law is so explicit. For example, if a Guardian moves his ward from her home, the Guardian must inform the court and Interested Persons (because they are interested) within a certain number of days. The Guardian might have to jump through a few hoops to find them but that is his/her responsibility, according to EPIC. Reporting requirements are even more stringent if a Guardian moves a ward to “a more restricted environment.” This law also defines things that courts and judges must do – such as demand timely Inventories and issue notices on insufficient accountings. If EPIC says that a judge shall do something, the judge is not supposed to say, I might, I just don’t feel like it or, as Judge O’Sullivan said, “We don’t follow those [EPIC] laws here.” Some people say that laws are created to be broken, so I was not surprised when my mother’s Attorney-Guardian-Conservator said that he had never heard about some EPIC rules – but a judge? (This paragraph is offered for staff who failed to recognize several incidents of judicial misconduct, as that term is defined by law.)

MICHIGAN HOUSE BILL NO. 4331
Proposed Amendment to
Estates and Protected Individuals Code, Public Act 386

Introduced February 18, 2009 by Reps. Cushingberry, Durhal and Sheltrown and referred to the Committee on Judiciary.

EPIC is a 153-page Code/Law that comprises hundreds of separate Rules, each of which is a Section of the law. Its current “TITLE” consists of 80* words that describe its purpose as relating to wills and intestacy, the administration and distribution of estates, trusts, the affairs of legally incapacitated and deceased individuals, court jurisdiction and consolidation and revision of laws.

Ø The proposed Amendment would add 22 words to EPIC’s current 80-word TITLE: to impose fees; to create funds; to provide for the powers and duties of certain state and local governmental officers and entities.

Ø HB 4331 would add one new term to 90+ terms currently defined in EPIC’s ARTICLE 1. The new term and its definition would read:
o "Vulnerable adult" means that term as defined in section 145m of the Michigan penal code, 1931 PA 328, MCL 750.145m.

Ø HB 4331 would add two new Sections or Rules to the law. They would be inserted within ARTICLE V – PROTECTION OF AN INDIVIDUAL UNDER DISABILITY AND HIS OR HER PROPERTY.

The first HR4331 Rule Addition would offer a place where individuals who are 60years of age or older, or who are “vulnerable adults” can deposit their Power of Attorney documents at the Probate Court where they reside – FOR SAFEKEEPING. They could deposit documents themselves or send a representative to do it for them.
Specified information such as name, social security number, etc. must be given.
The legal document/s would later be accessible only by the Principal, or the Agent, or another Person authorized by in a witnessed statement.
The Court would collect $35 for this service.
All $35 fees would be deposited into a new VULNERABLE ADULT PROTECTION FUND.

The second HR 4331 Rule Addition would authorize creation of a vulnerable adult protection fund [VAPFund] WITHIN THE STATE TREASURY, into which all the $35 fees from all the Courts in the State would be deposited.
The MI State Treasurer would oversee investments and credit interest and earnings to the fund. The Fund’s money could never be moved to the State’s General Fund.
The Dept. of Treasury would appropriate and dispense money from the VAPFund for only two stated purposes.
One purpose is for Investigation and prosecution of offenses under chapter XXA of the Michigan penal code, which defines various degrees of, and penalties for abuse of “Vulnerable Adults” in nursing homes and licensed adult foster care homes. Only the Title and Section of the referenced code would be identified.
The second purpose is for Administration of [the VAPFund] by the courts and the department of treasury.

Comments by L. P. Lambert
Eighty+ words or topics presently categorize hundreds of sub-topics, Rules or Sections. Twenty-Two additional words to describe only two new Rules and one new term are disproportionate. All the new words relate to funds collected from the Public and the State government’s authority, but do not describe 99% of the essence of the law (which is to define responsibilities of the Courts and certain parties and to protect the rights and estates of incapacitated individuals, as well as affairs of the deceased. The new TITLE wording is inappropriately suggestive of the State Governments’ continual authority over matters that it does not presently have authority over within this law.

Defining “Vulnerable Adult” would only be necessary in context of the two proposed additional Sections. However, if EPIC were amended to include the two new Rules, then the term should be adequately defined to eliminate the need for cross-referencing another law. While some terms in EPIC include cross-referencing for comprehensive definition, most are clearly defined as to their meaning and intent within the EPIC’s Rules.

Regarding the two proposed Sections:
“Power of Attorney” is not adequately defined. As proposed wording suggests, the term can mean a person or a legal document. Does this include all types – General Durable, Limited, Health Care; signed, witnessed and notarized according to Michigan law; etc.? Courts may have problems creating spaces to store the documents and systems to organize and retrieve them. If a person revokes a POA and writes another, will s/he have to pay $35 to the Court, again? Who would administer deposits, withdrawals, fee collections, transfers to Treasury Dept., etc? This service may impose a great burden upon the Courts; according to proposed language, they would not receive compensation for the expenses involved in creating and administering ‘safekeeping vaults’. If Courts would receive a percentage of funds, why not propose this?

Creation of a fund for “Vulnerable Adults” who have been abused in nursing and adult foster care homes sounds wonderful. Who will be able to access the funds, though? The proposed Amendment is silent. If aggrieved relations and friends could be guaranteed a portion to hire attorneys, file Court petitions, etc., there might be some potential to save a few lives here. As proposed, it is too unclear as to who/which government entities would investigate and prosecute offenses under the Michigan Penal Code. I think this may be the job of the State Attorney’s office (on down), but who would authorize the local prosecuting attorney to take action – the Department of Treasury?

My Humble Opinion: If I knew that I would be given money from a special fund – say $30,000 – to hire a reputable attorney and sue my mother’s Guardian-Conservator, or move her case through Appeals Court, then I would be all for this. The proposed legislation is designed to benefit someone, but that person will not be the “Vulnerable Adult” that it proposes to protect under the umbrella of the Estates and Protected Individuals Code, Public Act 386.

Written by NASGA Member:
Lucinda P. Lambert
February 25, 2009