Rule 5.550. Petition to Determine Incapacity
(a) Contents. The petition to determine incapacity shall be verified by the petitioner and shall 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 such belief is based, and the names and addresses of all persons known to the petitioner who have knowledge of such 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 shall 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; and
(8) Whether there are possible alternatives to guardianship known to the petitioner, including, but not limited to, trust agreements, powers of attorney, surrogates, or advance directives.
(1) Contents. The notice of filing the petition to determine incapacity shall 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 such person; and
(C) That if the court determines that such 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 shall be personally served by an elisor appointed by the court, who may be the court appointed counsel for the alleged incapacitated person. The elisor shall read the notice to the alleged incapacitated person, but need not read the petition. A return of service shall be filed by the elisor certifying that the notice and petition have been served on and the notice 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 shall 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 shall state:
(1) That he or she 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 shall specify whether there is an alternative to guardianship that will sufficiently address the problems of the incapacitated person.
(1) Filing. Each member of the examining committee must file his or her 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 shall serve the report on the petitioner and the attorney for the alleged incapacitated person by electronic mail delivery or United States mail, and, upon service, shall 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 such 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 upon which the challenge to admissibility is made. If an objection is timely filed and served, the court shall 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. Upon appointment of the examining committee, the court shall set the date upon 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.