Epic changes approved
By Alan Polack
The State of Michigan has enacted 10 new statutes which are designed to tighten up enforcement of laws prohibiting abuse and exploitation of vulnerable adults.
Of special interest to probate attorneys is PA 173 of 2012, effective Oct. 1, 2012.
The new law amends several sections of the Estate and Protected Individuals Code (EPIC) and adds two new sections.
Amended section 2802 of EPIC defines “abuse, neglect or exploitation” as the commission of a felony under the following Michigan statutes: (1) Section 136b of the Michigan Penal Code, MCL 750.136b; (2). Chapter XXA of the Michigan Penal Code, MCL 750.145m to 750.145r; (3) Section 174a of the Michigan Penal Code, MCL 750.174a; (4) an offense involving domestic violence as defined in Section 27b of Chapter VIII of the Code of Criminal Procedure, MCL 768.27b; and (5) a criminal act that constitutes abuse, neglect or exploitation as defined in Section 11 of the Social Welfare Acts, MCL 400.11.
Why did the state do this?
That question is answered in the amended Section 2803 which changes the law disinheriting an individual who feloniously and intentionally kills the decedent.
This law is historically been known as the Slayer Statute which is still the law but now a person convicted of a felony under any of the statutes listed above will be treated the same as a Slayer.
In other words, if you are convicted of a felony under any of the above-stated statutes, you also lose your benefits with respect to the decedent’s estate including an intestate share, an elective share and admitted spouse’s or child’s share, homestead allowance, family allowance and exempt property.
If the decedent died intestate, the decedent’s intestate estate passes as if the killer or the felon disclaimed his or her intestate share.
Subsection (2) of 2803 states that “the felonious and intentional killing or the conviction of the felon for the abuse, neglect or exploitation of the decedent does all of the following: (a) revokes all the following that are revocable: (i) disposition or appointment of property made by the decedent to the killer or felon in a governing instrument; (ii) provision in a governing instrument conferring a general or non-general power of appointment on the killer or felon; (iii) nomination of the killer or felon in a governing instrument, nominating or appointing the killer or felon to serve in a fiduciary or representative capacity, including a personal representative, executor, trustee or agent.
In addition, Subsection (b) severs the interest of the decedent and the killer or felon in property held by them at the time of the killing, abuse, neglect or exploitation as joint tenants with rights of survivorship making the decedent or the killer or felon tenants in common.
Subsection (4) states that a provision of a governing instrument is given effect as if the killer or felon disclaimed all provisions revoked by Subsection (2) and in the case of the revoked nomination in a fiduciary representative capacity as if the killer or felon predeceased the decedent.
Subsection (7) states that Section 2803 does not apply if the decedent executed a governing instrument after the date of the conviction for abuse, neglect or exploitation which expresses a specific intent to allow the felon to inherit or otherwise receive the estate or property of the decedent.
The bottom line is that anyone convicted of a felony for abuse, neglect or exploitation of the decedent is treated the same as the intentional killer of that decedent in regards to any interest the felon has in the decedent’s estate.
Amended Section 2804 restates requirements for avoidance of liability by a third party who pays or transfers an item of property to an individual who has forfeited his rights to that property pursuant to Section 2803.
Such a third party is liable for payment made within 10 or more business days after the third party actually receives written notice of a claim of forfeiture or revocation under Section 2803.
Subsection (2) mandates the content of a written notice, a claimed forfeiture or revocation and the manner of service on the third party.
Subsection (5) allows a third party who has received the proper written notice of claimed forfeiture or revocation to pay any amount owed to the county treasurer of the county of the court having jurisdiction of the probate proceedings related to the decedent’s estate.
Such a payment discharges the third party from a claim for the value of an amount paid to the county treasurer.
Section 5306a is a new addition to EPIC.
This section spells out 32 specific rights of an individual for whom a guardian is sought or has been appointed. These rights already exist and are drawn from other sections of EPIC.
The new section orders the State Court Administrative Office and the Services Office To The Aging to promulgate a form containing all of these rights which shall be served on the proposed ward.
Therefore, this section doesn’t create any new rights, it simply enumerates those and organizes them in one form which the guardian ad litem must serve on the ward.
Section 5319 is new.
Subsection 1 requires the guardian to file a petition for appointment of conservator or a protective order if the court determines that financial protection is required for the ward.
Subsection 2 requires the guardian to report to the court any excess of cash or assets convertible to cash which exceeds the estimate of the guardian ad litem.
Amended Section 5410 requires the court to order the conservator to furnish a bond if the value of cash and property readily convertible to cash in the ward’s estate, exceeds the small estate limit (currently $20,000) unless the estate contains no property readily convertible to cash and the cash is in a restricted account with a financial institution or the conservator is a bank or the court determines that requiring a bond would impose a financial hardship on the estate or the court states on the record why a bond is not necessary.
Amended Section 5422 adds a new subsection (3) which requires the conservator to record an order allowing the sale, disposal, mortgage or placement of lien on the ward’s real property with the register of deeds.
If the order is not recorded, the person receiving the interest in the real estate is not entitled to presume that the conservator has the power to sell or otherwise dispose of the property, etc.
Amended Section 5423 (3) requires court approval of a mortgage, pledge or lien placed against a principal dwelling, real property or interest in real property. The prior language did not require court approval of mortgages or placement of liens against such property.
There are a couple of other amended sections which I will not address here due to time and space limitations.
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Alan F. Polack is a Shelby Township attorney who formerly served as president of the Macomb County Probate Bar Association.
