Michigan Laws 700.5406 – Procedure concerning hearing and order on original petition
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(1) Upon receipt of a petition for a conservator‘s appointment or another protective order because of minority, the court shall set a date for hearing. If, at any time in the proceeding, the court determines that the minor‘s interests are or may be inadequately represented, the court may appoint an attorney to represent the minor, giving consideration to the minor’s choice if 14 years of age or older. An attorney appointed by the court to represent a minor has the powers and duties of a guardian ad litem.
(2) Upon receipt of a petition for a conservator’s appointment or another protective order for a reason other than minority, the court shall set a date for hearing. Unless the individual to be protected has chosen counsel, or is mentally competent but aged or physically infirm, the court shall appoint a guardian ad litem to represent the person in the proceeding. If the alleged disability is mental illness, mental deficiency, physical illness or disability, chronic use of drugs, or chronic intoxication, the court may direct that the individual alleged to need protection be examined by a physician or mental health professional appointed by the court, preferably a physician or mental health professional who is not connected with an institution in which the individual is a patient or is detained. The individual alleged to need protection has the right to secure an independent evaluation at his or her own expense. The court may send a visitor to interview the individual to be protected. The visitor may be a guardian ad litem or a court officer or employee.
Terms Used In Michigan Laws 700.5406
- Attorney: means , if appointed to represent a child under the provisions referenced in section 5213, an attorney 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. See Michigan Laws 700.1103
- Conservator: means a person appointed by a court to manage a protected individual's estate. See Michigan Laws 700.1103
- Court: means the probate court or, when applicable, the family division of circuit court. See Michigan Laws 700.1103
- Disability: means cause for a protective order as described in section 5401. 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
- Issue: means an individual's descendant. See Michigan Laws 700.1105
- 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. See Michigan Laws 700.1106Minor: means an individual who is less than 18 years of age. 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 Protective proceeding: means a proceeding under the provisions of part 4 of article V. See Michigan Laws 700.1106 Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
(3) The court may utilize, as an additional visitor, the service of a public or charitable agency to evaluate the condition of the individual to be protected and make appropriate recommendations to the court.
(4) A guardian ad litem, physician, mental health professional, or visitor appointed under this section who meets with, examines, or evaluates an individual who is the subject of a petition in a protective proceeding shall do all of the following:
(a) Consider whether there is an appropriate alternative to a conservatorship.
(b) If a conservatorship is appropriate, consider the desirability of limiting the scope and duration of the conservator’s authority.
(c) Report to the court based on the considerations required in subdivisions (a) and (b).
(5) The individual to be protected is entitled to be present at the hearing in person. If the individual wishes to be present at the hearing, all practical steps must be taken to ensure the individual’s presence including, if necessary, moving the site of the hearing. The individual is entitled to be represented by counsel, to present evidence, to cross-examine witnesses, including a court-appointed physician or other qualified person and a visitor, and to trial by jury. The issue may be determined at a closed hearing or without a jury if the individual to be protected or counsel for the individual so requests.
(6) Any person may request for permission to participate in the proceeding, and the court may grant the request, with or without hearing, upon determining that the best interest of the individual to be protected will be served by granting the request. The court may attach appropriate conditions to the permission.
(7) After hearing, upon finding that a basis for a conservator’s appointment or another protective order is established by clear and convincing evidence, the court shall make the appointment or other appropriate protective order.