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, appointed under the act  
unless a court order specifically empowers the guardian to place the person in a facility of  
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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 a petition for involuntary  
admission.  
(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.  
(i) Abortion procedures, surgical sterilization, and chemical or mechanical contraceptive  
measures.  
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(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  
alternative which is advantageous to the person. There shall be an offer to answer further  
inquiries of the person.  
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(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 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.  
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(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 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.  
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(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:  
(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.  
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(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 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.  
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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  
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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