Michigan Laws 700.5306 – Court appointment of guardian of incapacitated person; findings; appointment of limited guardian; effect of patient advocate designation; supervised access
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Terms Used In Michigan Laws 700.5306
- Court: means the probate court or, when applicable, the family division of circuit court. See Michigan Laws 700.1103
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- 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. See Michigan Laws 700.1104
- Incapacitated individual: means an individual who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions. See Michigan Laws 700.1105
- Legally incapacitated individual: means an individual, other than a minor, for whom a guardian is appointed under this act or an individual, other than a minor, who has been adjudged by a court to be an incapacitated individual. See Michigan Laws 700.1105
- 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. See Michigan Laws 700.1106
- Patient advocate designation: means the written document executed and with the effect as described in section 5506 to 5515. See Michigan Laws 700.1106
- Person: means an individual or an organization. See Michigan Laws 700.1106
- Petition: means a written request to the court for an order after notice. See Michigan Laws 700.1106
- Proceeding: includes an application and a petition, and may be an action at law or a suit in equity. See Michigan Laws 700.1106
- Ward: means an individual for whom a guardian is appointed. See Michigan Laws 700.1108
(1) The court may appoint a guardian if the court finds by clear and convincing evidence both that the individual for whom a guardian is sought is an incapacitated individual and that the appointment is necessary as a means of providing continuing care and supervision of the incapacitated individual, with each finding supported separately on the record. Alternately, the court may dismiss the proceeding or enter another appropriate order.
(2) The court shall grant a guardian only those powers and only for that period of time as is necessary to provide for the demonstrated need of the incapacitated individual. The court shall design the guardianship to encourage the development of maximum self-reliance and independence in the individual. If the court is aware that an individual has executed a patient advocate designation under section 5506, the court shall not grant a guardian any of the same powers that are held by the patient advocate. A court order establishing a guardianship shall specify any limitations on the guardian’s powers and any time limits on the guardianship.
(3) If the court finds by clear and convincing evidence that an individual is incapacitated and lacks the capacity to do some, but not all, of the tasks necessary to care for himself or herself, the court may appoint a limited guardian to provide guardianship services to the individual, but the court shall not appoint a full guardian.
(4) If the court finds by clear and convincing evidence that the individual is incapacitated and is totally without capacity to care for himself or herself, the court shall specify that finding of fact in an order and may appoint a full guardian.
(5) If an individual executed a patient advocate designation under section 5506 before the time the court determines that he or she became a legally incapacitated individual, a guardian does not have and shall not exercise the power or duty of making medical or mental health treatment decisions that the patient advocate is designated to make. If, however, a petition for guardianship or for modification under section 5310 alleges and the court finds that the patient advocate designation was not executed in compliance with section 5506, that the patient advocate is not complying with the terms of the designation or with the applicable provisions of section 5506 to 5515, or that the patient advocate is not acting consistent with the ward‘s best interests, the court may modify the guardianship’s terms to grant those powers to the guardian.
(6) If the court finds by clear and convincing evidence that the individual is incapacitated, that the person that has the care and custody of the incapacitated individual denied another person access to the incapacitated individual, and that the incapacitated individual desires contact with the other person or that contact with the other person is in the incapacitated individual’s best interest, the court may appoint a limited guardian to supervise access with the other person.