The alleged legally incapacitated individual has a right to demand a jury trial. It is very rare for the alleged legally incapacitated individual to make such a demand. Therefore, this note will deal with the usual situation which is a trial before a judge.
The alleged legally incapacitated individual has a right to demand that the hearing be closed to the public. This is seldom done. However, these hearings usually take place with only friends and family present.
The alleged legally incapacitated individual has a right to be present at the hearing. However, many times the individual chooses not to be present or does not request that arrangements be made for him or her to be present. If the alleged legally incapacitated individual does not make the request, the hearing can proceed in their absence. At the very beginning of the hearing if the alleged legally incapacitated individual is not present, the judge should ask the guardian ad litem or attorney for that individual if they believe it is appropriate to proceed in the individual's absence. If the the guardian ad litem indicates that it is all right to proceed, the court will proceed in the absence of the alleged legally incapacitated individual. If the guardian ad litem indicates that the alleged legally incapacitated individual should be present but can not be for some reason, the court may adjourn the hearing until the individual can be present or adjourn and hold the hearing at a location to accommodate the individual.
The alleged legally incapacitated individual must have a guardian ad litem appointed by the court unless he or she is represented by an attorney. The alleged legally incapacitated individual has the right to be represented by an attorney. If the individual is contesting any part of the proceedings, the court must appoint an attorney for that individual unless they hire their own attorney. If an attorney has been serving as a guardian ad litem, many courts will remove that person as guardian ad litem and appoint the same person as attorney. While a guardian ad litem recommends what he or she determines to be in the alleged legally incapacitated individual's best interest, an attorney must advocate the position of the client. Michigan Court Rule 5.121 (E) provides that there is no attorney-client privilege when an attorney is appointed as a guardian ad litem. However, if the guardian ad litem is later appointed to serve as an attorney, the attorney-client privilege created by the appointment relates back to the date of the appointment of the guardian ad litem. Therefore, an attorney, who is appointed guardian ad litem and who discovers that the alleged legally incapacitated individual is contesting the proceedings, should only report to the court that an attorney should be appointed and not make any other recommendations if he or she expects to be appointed as the attorney for the alleged legally incapacitated person.
The petitioner begins the hearing by calling his or her witnesses. If the petitioner is proceeding without an attorney the judge may call the petitioner and the petitioner's witnesses and ask them questions concerning the petition. The alleged legally incapacitated individual's attorney or an attorney acting as a guardian ad litem may also question the witnesses. The rules of evidence must be followed in these hearing and it is therefore advisable for the petitioner to be represented by an attorney if the petition is contested. Generally, no hearsay evidence is allowed. Hearsay can be simply defined as evidence which comes from another person not presently before the court. For example, if the alleged legally incapacitated individual's physician has written a letter stating that a guardian is appropriate, the letter may not be received into evidence if it is objected to as hearsay. The same is true for other letters which may have been written by interested persons. There are exceptions to this rule against hearsay evidence. Michigan Court Rule 5.121 (D) allows oral or written reports of a guardian ad litem or visitor to be considered by the court. Michigan Court Rule 5.405 (A) allows the admission into evidence the report of a physician or mental health professional if the report is filed with the court five days before the hearing and the report is substantially in the form required by the state court administrator. The required form is Report of Physician/Mental Health Professional of Alleged Legally Incapacitated Individual (PC 630). When the petitioner has concluded, the alleged legally incapacitated individual may then proceed to call his or her witnesses.
Before a guardian is appointed, the court must find by clear and convincing evidence that the alleged legally incapacitated individual is impaired to the extent that the person lacks sufficient understanding or capacity to make or communicate informed decisions by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication or other like cause and the appointment is necessary as a means of providing continuing care and supervision of the individual. It must be noted that the focus of the inquiry must be on the ability to make such decisions rather than agreement or disagreement with the decisions which are made. Even if a judge disagrees with a decision being made or is aware that the decision will result in harm to the alleged legally incapacitated individual, such would not be the basis for the appointment of a guardian if the alleged legally incapacitated individual understood what he or she was doing, the consequences of the decision and accepted those consequences.
If sufficient proof is presented for the court to appoint a guardian, the judge will sign an Order Appointing Guardian of Legally Incapacitated Individual (PC 631). After the proposed guardian signs an Acceptance of Appointment (PC 571), the judge will sign Letters of Guardianship (PC 633) which officially authorizes the guardian to act.
Kent County Courthouse
180 Ottawa Avenue NW, Suite 2500
Grand Rapids, MI 49503
Monday - Friday
8:00am - 5:00pm
Filings are accepted until 4:30pm
Judge David M. Murkowski
Chief Judge Probate Court
Susan B. Flakne, Register