MUPC Article V procedural outline - J. Appearance of incapacitated person at hearing: 5106(C)

The contents of this outline are intended to provide general guidance to Court staff in the handling of guardianship of incapacitated persons and conservatorship cases. This outline does not cover guardianship of minors matters.

1. The Respondent is entitled to be present for all hearings.
   1. Where the person is represented by counsel
      1. It is counsel’s obligation to advise the Court as to whether the Respondent desires to attend any proceeding. If the Respondent is residing in an institution, hospital or nursing facility the Petitioner (or the guardian, temporary guardian, conservator or temporary conservator if one has been appointed) shall arrange for Respondent’s presence at all proceedings.
         1. Where the Respondent is not represented by counsel, but the Court has appointed a GAL
            1. Whenever feasible, the GAL shall advise the court in person or by written report as to whether the Respondent desires to attend any proceeding. In such case if the Respondent desires to be present, the Petitioner (or the guardian, temporary guardian, conservator, or temporary conservator if one has been appointed) shall arrange for the Respondent's presence at all proceedings.
            2. In the event the GAL cannot fulfill this responsibility, the responsibility shall fall to the Petitioner as set forth in paragraph B below.
         2. If the Respondent is not represented by counsel and a GAL has not been appointed.
            1. It is the responsibility of the Petitioner (or the guardian, temporary guardian, conservator, or temporary conservator if one has been appointed) to advise the Court as to whether the Respondent desires to attend any proceeding and to arrange for the Respondent to be present if so desired.
            2. In the event the Petitioner (or guardian, temporary guardian, conservator, or temporary conservator if one has been appointed) informs the Court that the Respondent does not desire to be present, the Court shall inquire into the reasons for the decision not to be present and may, in its discretion, appoint a GAL or counsel for the Respondent.
         3. If the Petitioner, guardian, temporary guardian, conservator, or temporary conservator or counsel, cannot arrange for Respondent’s presence at the hearing, the hearing shall be held in a manner to accommodate the Respondent’s presence.

         4. Mandatory appearance of alleged incapacitated person 5-306A(D)

            The alleged incapacitated person must be present at any hearing where the authority to consent to treatment for which a substituted judgment is required unless there is a representation by counsel indicating that there are no contested issues of facts, the Court specifically finds a reason that oral testimony is not required and:

            Counsel is present; or

            The court finds extraordinary circumstances require the alleged incapacitated person’s absence. In considering whether extraordinary circumstances exist, the Court may consider:

            1. The desire of the alleged incapacitated person;
            2. The opinion stated in the Medical Certificate regarding the ability of the alleged incapacitated person to attend;
            3. Other factors that may affect the alleged incapacitated person’s ability to attend or participate in the proceeding.
   2. At any administrative review of a treatment plan, the Rogers review protocol shall be followed.