PETITION TO DETERMINE INCAPACITY

(a) Contents. The petition to determine incapacity must be verified by the petitioner and must state:

(1) the name, age, and present address of the petitioner and the petitioner’s relationship to the alleged incapacitated person;

(2) the name, age, county of residence, and present address of the alleged incapacitated person, and specify the primary language spoken by the alleged incapacitated person, if known;

(3) that the petitioner believes the alleged incapacitated person to be incapacitated, the facts on which the belief is based, and the names and addresses of all persons known to the petitioner who have knowledge of the facts through personal observation;

(4) the name and address of the alleged incapacitated person’s attending or family physician, if known;

(5) which rights the alleged incapacitated person is incapable of exercising to the best of the petitioner’s knowledge; and, if the petitioner has insufficient experience to make that judgment, the petitioner must so indicate;

(6) whether plenary or limited guardianship is sought for the alleged incapacitated person;

(7) the names, relationships, and addresses of the next of kin of the alleged incapacitated person, specifying the year of birth of any who are minors, to the extent known to the petitioner;

(8) whether there are possible alternatives to guardianship known to the petitioner, including, but not limited to, trust agreements, powers of attorney, designations of health care surrogates, other advance directives, and if the petitioner is seeking a guardianship, an explanation as to why the alternatives are insufficient to meet the needs of the alleged incapacitated person; and

(9) whether the alleged incapacitated person uses assistance to exercise the person’s rights, including, but not limited to, supported decisionmaking, and if so, why the assistance is inappropriate or insufficient to allow the person to independently exercise the person’s rights.

(b) Notice.

(1) Contents. The notice of filing the petition to determine incapacity must state:

(A) the time and place of the hearing to inquire into the capacity of the alleged incapacitated person;

(B) that an attorney has been appointed to represent the alleged incapacitated person; and

(C) that if the court determines that the alleged incapacitated person is incapable of exercising any of the rights enumerated in the petition a guardian may be appointed.

(2) Service on Alleged Incapacitated Person. The notice and a copy of the petition to determine incapacity must be personally served by an elisor appointed by the court, who may be the court-appointed counsel for the alleged incapacitated person. The elisor must read the notice and petition to the alleged incapacitated person. A return of service must be filed by the elisor certifying that the notice and petition have been served on and read to the alleged incapacitated person. No responsive pleading is required and no default may be entered for failure to file a responsive pleading. The allegations of the petition are deemed denied.

(3) Service on Others. A copy of the petition and the notice must also be served on counsel for the alleged incapacitated person, and on all next of kin.

(c) Verified Statement. An interested person may file a verified statement that states:

(1) that the interested person has a good faith belief that the alleged incapacitated person’s trust, trust amendment, or durable power of attorney is invalid; and

(2) facts constituting a reasonable basis for that belief.

(d) Order. When an order determines that a person is incapable of exercising delegable rights, it must specify whether there is an alternative to guardianship that will sufficiently address the problems of the incapacitated person.

(e) Reports.

(1) Filing. Each member of the examining committee must file the examining committee member’s report with the clerk of the court within 15 days after appointment.

(2) Service. Within 3 days after receipt of each examining committee member’s report, the clerk must serve the report on the petitioner and the attorney for the alleged incapacitated person by e-mail or United States mail, and, on service, must file a certificate of service in the incapacity proceeding. The petitioner and the attorney for the alleged incapacitated person must be served with all reports at least 10 days before the hearing on the petition, unless the reports are not complete, in which case the petitioner and attorney for the alleged incapacitated person may waive the 10-day requirement and consent to the consideration of the report by the court at the adjudicatory hearing. If service is not timely effectuated, the petitioner or the alleged incapacitated person may move for a continuance of the hearing.

(3) Objections. The petitioner and the alleged incapacitated person may object to the introduction into evidence of all or any portion of the examining committee members’ reports by filing and serving a written objection on the other party no later than 5 days before the adjudicatory hearing. The objection must state the basis on which the challenge to admissibility is made. If an objection is timely filed and served, the court must apply the rules of evidence in determining the reports’ admissibility. For good cause shown, the court may extend the time to file and serve the written objection.

(f) Adjudicatory Hearing. On appointment of the examining committee, the court must set the date on which the petition will be heard. The adjudicatory hearing must be conducted within at least 10 days, which time period may be waived, but no more than 30 days after the filing of the last filed report of the examining committee members, unless good cause is shown.