PROBATE 19: Respondent argues she did not receive notice of hearing until five days before.

In this case, respondent was taken to the hospital where she was examined by a physician and a psychiatrist. Respondent admitted to both doctors that, at the time of the incident, she had been contemplating suicide. The next day, the responding officer filed a petition for mental health treatment pursuant to MCL 330.1401(1)(a). Respondent was issued notice of a hearing on the petition.

Respondent argues that she was denied her right to due process of law because she did not receive notice of the hearing until five days before it took place. Respondent argues that the five-day notice of hearing violated her right to due process. Due process generally requires that notice be reasonably calculated to apprise interested parties of the action and to provide them an opportunity to be heard.

Under MCL 330.1453(1) of the Mental Health Code, notice shall be given at the earliest practicable time and sufficiently in advance of the hearing date to permit preparation for the hearing. Under the Mental Health Code court rules, MCR 5.734(A) states that when required by the Mental Health Code, the court must have the necessary papers served. The individual must be served personally. The individual’s attorney also must be served. MCR 5.734(C)(1)(a) states that notice of a hearing must be served on a respondent and his or her attorney at least 2 days before the time of a hearing that is scheduled by the court to be held within 7 days or less. In all other cases, notice of a hearing must be served at least 5 days before the time scheduled for the hearing.

Because the hearing was to take place within seven days of scheduling, respondent and her attorney were entitled to at least 2 days’ notice prior to the hearing. See MCR 5.734(C)(1)(a). Respondent’s attorney received notice of the hearing 7 days in advance, and respondent was personally served with notice of the hearing 5 days in advance. Accordingly, the notice served on respondent complied with the timeliness rules outlined in MCR 5.734(A) and MCR 5.734(C)(1)(a).

Further, respondent has offered nothing to suggest that notice was not given at the earliest practicable time and sufficiently in advance of the hearing date to permit preparation for the hearing. To the contrary, at the hearing on the petition, respondent’s counsel stated that she had spoken to respondent numerous times on the phone and had met with her twice. On the basis of these conversations, respondent’s counsel informed the trial court that respondent had no objection to receiving mental health treatment. Rather, respondent took issue with the specifics of where she would receive treatment and how she would receive medication. It appears that respondent and her attorney were able to adequately prepare for the hearing on the petition.

The court concluded that the notices, although undesirable, adequately informed respondent of the time and location for her hearing with sufficient time to prepare, whatever confusion she suffered was a consequence of factors independent of the notices, and, in any event, she appears to have suffered no actual prejudice. The court concluded no error occurred regarding respondent’s procedural due process rights.

Our probate attorneys at Aldrich Legal Services can give you the legal guidance you need. If you become incapacitated, you will need someone to make decisions on your behalf.  Schedule a consultation at our law firm in Plymouth, Michigan.

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