Probate Court

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Mental Illness

Court Proceedings

Court Hearing
  • Must be within 7 days excluding Sunday and holidays after Court receives Application/Petition and required certificates. A continuance may be granted for good cause to either the petitioner or respondent.
  • Individual must be represented by attorney.
  • The individual's right to be present at the hearing is considered waived by the individual's failure to attend the hearing if individual received proper notice and has opportunity to consult with counsel.
  • May demand a jury trial.
  • Must have testimony of at least one physician or psychologist who has personally examined individual.
    • Should be treating professional, if possible.
    • Need not be certifier.
  • May demand independent medical examination by physician or psychologist at or before the first hearing.
  • Standard of proof is clear and convincing evidence.
Possible Problem Areas:
  • Disruptive patient.
    • Patient may be removed if behavior makes it impossible to conduct hearing. Statement must be placed on record if removal orders. MCR5.736(2)
    • Patient may be placed in restraints only under certain circumstances.
      • Immediate past conduct indicates patient is reasonably likely to try to escape or to inflict physical harm on himself or others.
      • Incident during transport indicates attempted escape or attempt to inflict physical harm on himself or others.
    • Judge should be sensitive to nature of proceeding in dealing with disruptive patients.
  • Patient does not want an attorney.
    • Waiver must be voluntarily and understandingly made. MCR5.732(s)
    • A guardian ad litem may be appointed. MCR5.732(2).
  • The individual's right to be present at the hearing is considered waived by the individual's failure to attend the hearing if individual received proper notice and has opportunity to consult with counsel.
  • Patient does not speak English.
    • Must have a translator.
    • Must swear the translator before hearing.
  • Evidence
    • Usual rules of evidence apply.
    • Expert witness may consider medical record and reports. Alexander v Covel Manfy Co., 336 Mich 140 (1953).
    • "Settled report" may be admitted into evidence at a discharge hearing when the patient had previously been found not guilty by reason of insanity. In the Matter of Portus, 152 Mich App 799 (1985).
    • If there is an imminent possibility of recurrence of symptoms and if there is competent medical testimony to that effect, the patient may be found to be a person requiring treatment. People ex rel Book v Hooker, 83 Mich App 495 (1978). e. Court should make a finding of fact as to the evidence presented.
  • Jury Trial.
    • Must be demanded before start of testimony.
    • Must be held within 7 days of demand excluding Sunday and holidays. A continuance may be granted for good cause to either petitioner or respondent.