Michigan Laws 700.5305 – Guardian ad litem; duties; compensation; legal counsel
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Terms Used In Michigan Laws 700.5305
- 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
- Do-not-resuscitate order: means that term as defined in section 2 of the Michigan do-not-resuscitate procedure act, 1996 PA 193, MCL 333. See Michigan Laws 700.1103
- Estate: includes the property of the decedent, trust, or other person whose affairs are subject to this act as the property is originally constituted and as it exists throughout administration. See Michigan Laws 700.1104
- 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
- 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
- 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
- Physician orders for scope of treatment form: means that term as defined in section 5674 of the public health code, 1978 PA 368, MCL 333. See Michigan Laws 700.1106
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Property: means anything that may be the subject of ownership, and includes both real and personal property or an interest in real or personal property. See Michigan Laws 700.1106
- State: means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or insular possession subject to the jurisdiction of the United States. See Michigan Laws 700.1107
- Ward: means an individual for whom a guardian is appointed. See Michigan Laws 700.1108
(1) The duties of a guardian ad litem appointed for an individual alleged to be incapacitated include all of the following:
(a) Personally visiting the individual.
(b) Explaining to the individual the nature, purpose, and legal effects of a guardian‘s appointment.
(c) Explaining to the individual the hearing procedure and the individual’s rights in the hearing procedure, including, but not limited to, all of the following:
(i) The right to contest the petition.
(ii) The right to request limits on the guardian’s powers, including a limitation on the guardian’s power to execute on behalf of the ward either of the following:
(A) A do-not-resuscitate order.
(B) A physician orders for scope of treatment form.
(iii) The right to object to a particular person being appointed guardian or designated as standby guardian.
(iv) The right to be present at the hearing.
(v) The right to be represented by legal counsel.
(vi) The right to have legal counsel appointed for the individual if the individual is unable to afford legal counsel.
(d) Informing the individual that if a guardian is appointed, the guardian may have the power to execute a do-not-resuscitate order on behalf of the individual and, if meaningful communication is possible, discern if the individual objects to having a do-not-resuscitate order executed on the individual’s behalf.
(e) Informing the individual that if a guardian is appointed, the guardian may have the power to execute a physician orders for scope of treatment form on behalf of the individual and, if meaningful communication is possible, discern if the individual objects to having a physician orders for scope of treatment form executed on the individual’s behalf.
(f) Informing the individual of the name of each person known to be seeking appointment as guardian or designation as standby guardian.
(g) Asking the individual and the petitioner about the amount of cash and property readily convertible into cash that is in the individual’s estate.
(h) Making determinations, and informing the court of those determinations, on all of the following:
(i) Whether there are 1 or more appropriate alternatives to the appointment of a full guardian or whether 1 or more actions should be taken in addition to the appointment of a guardian. Before informing the court of the guardian ad litem’s determination under this subparagraph, the guardian ad litem shall consider the appropriateness of at least each of the following as alternatives or additional actions:
(A) Appointment of a limited guardian, including the specific powers and limitation on those powers the guardian ad litem believes appropriate.
(B) Appointment of a conservator or another protective order under part 4 of this article. In the report informing the court of the determinations under this subdivision, the guardian ad litem shall include an estimate of the amount of cash and property readily convertible into cash that is in the individual’s estate.
(C) Execution of a patient advocate designation, do-not-resuscitate order, physician orders for scope of treatment form, or durable power of attorney with or without limitations on purpose, authority, or duration.
(ii) Whether a disagreement or dispute related to the guardianship petition might be resolved through court ordered mediation.
(iii) Whether the individual wishes to be present at the hearing.
(iv) Whether the individual wishes to contest the petition.
(v) Whether the individual wishes limits placed on the guardian’s powers.
(vi) Whether the individual objects to having a do-not-resuscitate order executed on the individual’s behalf.
(vii) Whether the individual objects to having a physician orders for scope of treatment form executed on the individual’s behalf.
(viii) Whether the individual objects to a particular person being appointed guardian or designated a standby guardian.
(2) The court shall not order compensation of the guardian ad litem unless the guardian ad litem states on the record or in the guardian ad litem’s written report that the guardian ad litem has complied with subsection (1).
(3) If the individual alleged to be incapacitated wishes to contest the petition, to have limits placed on the guardian’s powers, or to object to a particular person being appointed guardian or designated as standby guardian and if legal counsel has not been secured, the court shall appoint legal counsel to represent the individual alleged to be incapacitated. If the individual alleged to be incapacitated is indigent, this state shall bear the expense of legal counsel.
(4) If the individual alleged to be incapacitated requests legal counsel or the guardian ad litem determines it is in the individual’s best interest to have legal counsel, and if legal counsel has not been secured, the court shall appoint legal counsel. If the individual alleged to be incapacitated is indigent, this state shall bear the expense of legal counsel.
(5) If the individual alleged to be incapacitated has legal counsel appointed under subsection (3) or (4), the appointment of a guardian ad litem terminates.