DEPARTMENT OF HEALTH AND HUMAN SERVICES  
BEHAVIORAL HEALTH & DEVELOPMENTAL DISABILITIES  
ADMINISTRATION  
GUARDIANSHIP FOR RECIPIENTS OF MENTAL HEALTH SERVICES  
(By authority conferred on the department of health and human services by section 33  
of 1969 PA 306, and sections 114, 136, 201, 206, 244, 498n, 842, and 1002a of 1974 PA  
258, being MCL 24.233, MCL 330.1114, MCL 330.1136, MCL 330.1201, MCL  
330.1206, MCL 330.1244, MCL 330.1498n, MCL 330.1842, and MCL 330.2002a.)  
PART 6. GUARDIANSHIP FOR RECIPIENTS OF MENTAL HEALTH  
SERVICES  
R 330.6006 Applicability.  
Rule 6006. (1) These rules apply to persons designated developmentally and/or  
intellectually disabled as that term is defined in sections 100a and 100b of the mental  
health code, 1974 PA 258, MCL 330.1100a and MCL 330.1100b.  
(2) A determination of need for guardianship proceedings may also be made under  
these rules for persons who are designated mentally ill. Upon a determination that a  
mentally ill recipient cannot give informed consent, a hospital or program director shall  
not cause a proceeding for guardianship to be commenced in the probate court but shall  
notify the persons indicated by these rules. When a person is not available to be  
notified or the notified persons refuse to take action and action is urgently needed, a  
hospital or program director may elect to commence appropriate probate court  
guardianship proceedings authorized by law if a suitable candidate to serve as guardian  
is available or the probate court has indicated a willingness to appoint a public  
guardian at county expense, request a probate court to consent to the performance of  
surgery or electroconvulsive therapy or other procedure intended to produce  
convulsion or coma in lieu of the person eligible to give consent, or resort to other  
emergency procedures listed in section 5312 of estates and protected individuals code,  
1998 PA 386, MCL 700.5312.  
History: 1979 AC; 2018 AACS.  
R 330.6008 Admission of residents to a facility by guardians.  
Rule 6008. (1) A facility shall not admit a person of the age of 18 or over on a  
temporary or administrative admission basis on the application of a plenary or partial  
guardian unless a court order specifically empowers the guardian to place the person  
in a facility of the type to which application has been made.  
(2) A facility shall not admit a person under the age of 18 on a temporary or  
administrative admission basis on the application of a plenary or partial guardian,  
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appointed under the act unless a court order specifically empowers the guardian to place  
the person in a facility of the type to which application has been made. A facility may  
admit a person under the age of 18 on the application of a guardian appointed pursuant to  
other law without the required court order.  
History: 1979 AC.  
R 330.6011 Determination of need for guardianship proceedings.  
Rule 6011. (1) The facility or program director shall presume a person of the age of  
18 or over legally competent to make an application or give a consent, or to refuse to do  
so, except that:  
(a) This presumption shall be conclusively rebutted when a plenary guardian of  
the person, or of the estate and of the person, or a partial guardian has been appointed  
for a person and a duration of the term of guardianship indicated in the court order has  
not expired.  
(b) When a partial guardian has been appointed, a person shall be presumed  
legally competent except for:  
(i) Areas designated as legal disabilities in the court order appointing a partial  
guardian.  
(ii) Powers or duties granted to the guardian as specified in the court order  
appointing a partial guardian.  
(2) The manner of determining need for guardianship proceedings required by these  
rules shall be part of the procedure followed by facilities in conducting evaluations of  
minor residents 6 months prior to an eighteenth birthday to determine whether a  
resident is competent to execute an application for administrative admission or  
otherwise requires the protective services of a guardian. An evaluation of need for  
other protective services of a guardian shall be made even if a decision has been made  
to discharge a resident by his eighteenth birthday.  
(3) A staff member responsible for taking action concerning a person or for  
arranging for a person of the age of 18 or over to make application or give consent may  
decline to do so on the ground that the person is not capable of giving or refusing to  
give an informed consent in 1 or more of the following areas:  
(a) Admission to a facility or participation in a program.  
(b) Nonemergency surgery or other medical procedures not related to care and  
treatment for a person's mental condition.  
(c) Nonemergency use of electro-convulsive therapy or other procedure intended  
to produce convulsion or coma for a resident or psychosurgery or other treatment of an  
experimental or extra hazardous nature for a voluntary resident.  
(d) Consent to chemotherapy prior to final adjudication of  
involuntary admission.  
a
petition for  
(e) Financial matters, including payment for services and securing insurance and  
governmental benefits.  
(f) Fingerprinting or photographing of a recipient.  
(g) Disclosure of confidential information which requires consent.  
(h) Resident labor or other employment which requires consent.  
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(i) Abortion procedures, surgical sterilization, and chemical or mechanical  
contraceptive measures.  
(j) Other developments relating to a person's residence in a facility or participation  
in a mental health services program, other than care and treatment, training programs  
or services ordered by a probate court.  
(4) A staff member declining to take action or make arrangements shall give to the  
facility or program director, in writing, reasons for a conclusion that a person is not  
capable of giving or refusing to give an informed consent.  
History: 1979 AC.  
R 330.6013 Informed consent board.  
Rule 6013. (1) Upon review, a facility or program director shall determine whether  
a staff member's written conclusion that a person is not capable of giving or refusing to  
give an informed consent is of substantial weight. A facility or program director shall,  
when possible, authorize staff to act upon an application, consent, or refusal of a person  
of the age of 18 or over who is presumed to be legally competent. If a facility or program  
director determines that a staff member's written conclusion that a person is not capable  
of giving or refusing to give an informed consent is of substantial weight, he or she shall  
convene an informed consent board.  
(2) An informed consent board may either be a standing interdisciplinary body  
drawn from an existing interdisciplinary review board within a facility or program or may  
be appointed on a case-by-case basis. An informed consent board shall consist of the  
following:  
(a) Two mental health professionals of different disciplines with appropriate clinical  
experience or training.  
(b) A third person who is not employed by the facility or program but who is  
selected by the facility or program director from qualified volunteers with an interest in  
mental health or developmental and/or intellectual disability advocacy and services.  
(3) One board member shall have had prior clinical contact with the person whose  
ability to give informed consent is at issue, but a board member shall not have been  
involved in either the action or application for which consent is needed or the decision to  
evaluate the need for guardianship proceedings.  
(4) A board shall evaluate the capacity of a person to give or refuse to give the  
required informed consent by interviewing the person and other appropriate persons and  
by evaluating available clinical records and test results. A board shall submit a written  
report which states the board’s findings of fact, the person’s desires in the matter, when  
possible, a conclusion whether the consent or refusal is or will be informed, and the  
board's recommendation.  
(5) Informed consent assumes all of the following:  
(a) That a person has the capacity to make a decision and to understand rationally  
the nature of the procedure, its risks or other consequences, and other relevant  
information despite deprivations stemming from confinement and despite the negative  
effects of institutionalization.  
(b) That a person has been made aware of the procedure, risks, or other direct  
ramifications, including benefits, reasonably to be expected and of an appropriate  
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alternative which is advantageous to the person. There shall be an offer to answer further  
inquiries of the person.  
(c) That a decision is or will be an exercise of free power of choice without  
intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior  
form of constraint or coercion, including promises or assurances of freedom or privileges.  
The person shall be instructed that he or she is free to withdraw consent or to discontinue  
an ongoing activity or participation at any time without prejudice.  
(6) A board shall recommend those mental, physical, social, or educational  
evaluations which it deems necessary to further ascertain the capacity of a person to give  
informed consent or the need of a minor who is approaching the age of 18 for protective  
services of a guardian, to determine if guardianship will promote and protect the well-  
being of the person, or to arrive at a suitable guardianship design.  
(7) If a majority of an informed consent board concludes that a person does not  
have the capacity to make a decision or to rationally understand a situation, as required  
for an informed consent, and if the board concludes that guardianship can promote  
and protect the well-being of the person and recommends a guardianship request  
designed to encourage the development of maximum self-reliance and independence in  
the individual, then a director of the facility or program shall cause a proceeding for  
guardianship to be commenced in the probate court. Steps taken to cause a proceeding  
shall be in accordance with R 330.7003 and this rule on a facility's or program's role in  
guardianship proceedings.  
(8) If a majority of an informed consent board concludes that informed consent is  
absent either because a person has not been made sufficiently aware of the procedures,  
risks, other ramifications, benefits, or alternatives or because a decision is not voluntary,  
as required for an informed consent, the director shall cause the individual to be provided  
necessary information or, when possible, an opportunity for voluntary choice.  
(9) If a majority of an informed consent board concludes that a person can give or  
has given an informed consent or has the capacity to give an informed consent and has  
refused to consent, the facility or the program director shall authorize the staff to act  
accordingly.  
(10) A parent or a responsible relative, a previously appointed current partial  
guardian, or other interested person or entity shall be notified by the informed consent  
board of a determination that a person cannot give an informed consent. More than 1  
person or entity may be notified.  
(11) A copy of an informed consent board's report shall be placed in the person's  
case record.  
History: 1979 AC; 1981 AACS; 2018 AACS.  
R 330.6015 Emergency guardianship.  
Rule 6015. (1) Whenever the life of a person presumed legally competent is  
threatened, when there is doubt whether a person is capable of giving informed consent,  
and when it is deemed necessary to undertake measures other than surgery or electro-  
convulsive therapy or other procedures intended to produce convulsion or coma, a  
facility or program director, without convening an informed consent board, may  
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petition the probate court of the county where the person is located to exercise the  
powers of  
a guardian or to summarily appoint a temporary guardian. The medical necessity  
for the procedure shall be documented and entered into the record of the person and  
provided to the probate court.  
(2) This provision for emergency guardianship shall not preclude medical staff from  
taking life-saving or physical stabilization measures when the life of a person is  
threatened and there is not time to obtain consent. These measures may be performed  
without consent after the medical necessity has been documented and the  
documentation has been entered into the record of the recipient. Consent for  
necessary continued administration of the emergency procedures shall be sought as  
soon as possible.  
(3) A facility or program director may petition a probate court to exercise  
powers of a guardian or to summarily appoint a temporary guardian whenever a decision  
should be made by a person presumed legally competent whose life is not threatened but  
whose capacity to give an informed consent is in doubt, and a time limit for taking  
action or otherwise making a decision does not allow sufficient time for an informed  
consent board to be convened and make a determination. A board shall subsequently  
complete an inquiry and if a majority concludes the person is capable of giving or  
refusing to give an informed consent, a probate court which has assumed or authorized  
emergency or temporary guardianship powers shall be informed by its next working day  
and asked to terminate the guardianship.  
(4) If an emergency or temporary guardianship is terminated as a result of an  
informed consent board's inquiry, a facility or program director shall cause, whenever  
possible, steps taken under the guardianship to be revoked or adjusted in accordance  
with the person's expressed desires.  
History: 1979 AC.  
R 330.6019 Facility or program rule in guardianship proceedings.  
Rule 6019. (1) When guardianship is deemed necessary, a facility or program  
director shall endeavor to cause the petitioner to be an appropriate family member, friend,  
or public or private agency or association, other than an agency or association directly  
providing services to the person. The person may also be the petitioner.  
(2) When the facility or program director or an authorized staff member petitions  
for appointment of a guardian, the petition shall not request, and a report provided by a  
department facility or a county program shall not recommend a greater scope or  
duration of guardianship powers and duties than is absolutely necessary to meet the  
needs presented by the person's actual mental and adaptive limitations and for which an  
informed consent board evaluated the ability of the person to consent or for which a  
minor approaching the age of 18 has been evaluated by an informed consent board as  
needing protective services of a guardian.  
(3) A guardianship request shall be designed to encourage development of  
maximum self-reliance and independence in the person.  
(4) If a petition previously filed on behalf of a facility or program resulted in  
appointment of a plenary guardian of the estate or a partial guardian or a refusal by a  
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court to appoint any guardian, a facility or program director shall not authorize a  
subsequent petition unless there has been a significant deterioration in the person’s  
condition or other compelling change in circumstances. This requirement does not  
prevent action for emergency guardianship.  
(5) Only when it is necessary for a court to summarily appoint a temporary guardian  
and then only when another person, agency, or association is not available to serve as  
guardian, shall a facility or program providing services to a person offer to serve as  
guardian.  
(6) When a facility or program petitions for appointment of a guardian, a facility or  
program director shall cause, wherever possible, that an appropriate family member,  
friend, or public or private agency or association be considered by the probate court for  
appointment as guardian.  
(7) Only on the request of a probate court and after all other possibilities have been  
exhausted may a department facility agree, on behalf of the department, to serve as a  
plenary or partial guardian.  
(8) The department shall decline to serve as guardian for a person not receiving  
services from a department facility.  
(9) A county community mental health program may accept an appointment as  
guardian for a person receiving services in a department facility, pursuant to these rules.  
(10) Staff members of the department and of a community mental health program  
shall not personally act as guardians.  
(11) Each facility director and community mental health director shall establish  
relationships with local associations for developmentally and/or intellectually disabled  
citizens and other appropriate public or private agencies or associations which can  
conduct an active guardianship program for a developmentally and/or intellectually  
disabled person to assist in obtaining individual or group guardians in cases where a  
family member or friends are not available.  
(12) When a department facility or county community program staff member  
petitions for appointment of a guardian, on behalf of the facility or program, a facility  
shall provide, and a program shall provide or contract for, a report required by law. This  
report shall contain all of the following:  
(a) Evaluations of the person’s mental, physical, social, and educational condition  
made not more than the 30 days prior to filing a petition.  
(b) A recommendation proposing the type and scope of guardianship services  
needed.  
(c) A judgment as to the most appropriate living arrangement.  
(d) Signatures of all persons, 1 of whom shall be a physician or a psychologist, who  
performed evaluations upon which the report is based. Any number of evaluations by  
persons not on the staff of the facility or program may be utilized.  
(13) If suitable, a facility may use a report of an informed consent board as part of a  
required report.  
(14) When facility or program staff petition for appointment of a guardian, a  
petition shall be filed in the probate court for the county of residence or county in which a  
developmentally and/or intellectually disabled person was found as determined by any of  
the following factors:  
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(a) The county from which a person was admitted on the basis of a judicial  
admission or ordered to undergo a program of alternative care and treatment.  
(b) The county from which a person was referred to a facility or program by a  
county community mental health program or other public or private agency.  
(c) The county in which a person resides, if a parent has agreed to an appointment  
as guardian.  
(d) The county in which a person owns real estate suitable for residential use.  
(e) The county with which a person has substantial service contacts as evidenced by  
such factors as recent or current enrollment in a public education system, recent or  
current employment, current voter or automobile registration, valid driver’s license,  
bank accounts, or ownership of substantial tangible personal property.  
(f) A person's present residence if he or she resides outside a facility.  
(15) If the county of residence or the county in which a person was found cannot be  
determined, a petition may be filed by facility or program staff in the probate court for  
the county in which the facility is located. If both the county of residence or in which the  
person was found are outside the facility’s or program's service area, a petition may be  
filed in the probate court for the county in which the facility or program is located with  
the permission of the probate court.  
(16) Whenever a facility or program staff petitions for appointment of a guardian  
and there has previously been a guardian appointed for a person, the petition shall, where  
possible, be filed in the same probate court which previously appointed a guardian for the  
person, and in all cases the court shall be alerted by the petitioner to previous current or  
expired guardianship of which the petitioner has notice.  
(17) Whenever the department is appointed guardian, a facility shall request that the  
court order that the report to the court be at intervals which coincide with periodic  
reviews scheduled for the resident.  
(18) The guardian’s report to a court shall contain statements indicating all the  
following:  
(a) The person’s current mental, physical, social, and educational condition.  
(b) The person's present living arrangement.  
(c) The need for continued guardianship services.  
(d) Other information requested by the court or necessary in the opinion of a  
guardian.  
History: 1979 AC; 2018 AACS.  
R 330.6022 Guardianship for minors.  
Rule 6022. (1) When the parent or other guardian of a developmentally and/or  
intellectually disabled minor in a facility or county program cannot be found after  
diligent effort or cannot give informed consent on behalf of a minor, facility or program  
staff may cause or initiate guardianship proceedings under chapter 6 of the act in a  
manner consistent with provisions of these rules. This provision does not exclude neglect  
proceedings in a juvenile court.  
(2) In areas where minors are authorized by law to give consent, and a parent does  
not give consent, or a minor’s desire to not involve parents, the capacity of a minor to  
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give informed consent is in doubt, the measures authorized by these rules may be applied  
to arrange for a guardian to give consent on behalf of a minor.  
History: 1979 AC; 2018 AACS.  
R 330.6025 Testimony in guardianship proceedings.  
Rule 6025. A facility or program director shall permit not less than 1 staff member  
who performed an evaluation in connection with a required report adequate time to  
testify at a probate court hearing on a guardianship petition.  
History: 1979 AC.  
R 330.6027 Termination or modification of guardianship.  
Rule 6027. (1) A facility or program director shall assist residents in requesting a  
probate court to dismiss a guardian and name a successor guardian, or to dissolve a  
guardianship order.  
(2) If a facility or program director determines that a guardian of a resident should  
be replaced or that a guardianship should be dissolved, he shall petition the probate court.  
Procedures for making this determination shall be adopted by the governing body of a  
facility or program.  
(3) A facility or program director shall periodically review the need for  
guardianship where a facility or program staff member petitioned on behalf of a facility  
or program or where an interested person or entity filed a petition at the request of a  
staff member. This review shall be conducted once annually in the same manner as a  
determination of need for guardianship proceedings. In facilities, the review shall be  
made at the time of a periodic review. When the duration indicated in a court order of  
such a guardianship expires or is soon to expire, a person's continued need for the same  
type and scope of guardianship may be reviewed in the same manner as a periodic  
review.  
(4) A report of an informed consent board which concludes that an existing  
guardianship should be continued or renewed shall be made a part of the case record.  
Upon a recommendation that an expiring guardianship should be renewed, a facility or  
program director may cause a guardianship proceeding to be commenced pursuant to  
these rules.  
(5) A guardianship periodic review report may be used to the extent appropriate  
as part of a guardian's report to a court when the department or a county program has  
been appointed guardian.  
History: 1979 AC.  
R 330.6031 Information on guardianship procedures.  
Rule 6031. A county community mental health program providing services to the  
developmentally disabled shall provide information on guardianship procedures and on  
obtaining evaluations for guardianship proceedings on request to persons in the  
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communities it serves. A facility receiving similar requests shall refer a person  
inquiring to an appropriate county community mental health agency or, if none is  
available, to another appropriate community agency. It shall not itself provide  
guardianship information unless the subject of an inquiry is a resident or other  
recipient of services from the facility.  
History: 1979 AC; 1986 AACS.  
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;