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PROBATE 56: Court finds that an examination via a videoconferencing software is sufficient for clinical certificate.

In this case, respondent has been diagnosed as suffering from schizophrenia, bipolar type, and has received services from petitioner since at least 2005.

Clinical Certificate

In March 2022, petitioner filed a petition with the probate court for a continuing mental health treatment order. A clinical certificate prepared by Dr. F was attached to the petition.

In the clinical certificate, Dr. F reiterated respondent’s diagnosis and stated that he had personally examined respondent via video between Dr. F and the patient.

Respondent argues that he was entitled to an in-person, rather than remote, personal examination under MCL 330.1434, that Dr. F’s examination via video was therefore inadequate, and that he was denied the effective assistance of counsel because counsel failed to object on this ground.

Mental Health Code

The process for obtaining continuing orders of hospitalization or other forms of treatment based on a person’s mental illness are contained in various provisions of Chapter 4 of the Mental Health Code. The probate court must find that the individual continues to be a person requiring treatment. Any individual 18 years of age or over may file with the court a petition that asserts that an individual is a person requiring treatment. The petition shall be accompanied by the clinical certificate of a physician or a licensed psychologist. A clinical certificate that accompanies a petition must have been executed within 72 hours before the filing of the petition, and after personal examination of the individual.

If the trial court finds that a respondent is still a person requiring treatment, it shall issue another continuing order for involuntary mental health treatment for a period not to exceed 1 year.

Personal Examination

A personal examination can be reasonably be defined as a careful inquiry, inspection, or test that is conducted between the examiner and examinee or that relates to the examinee’s person or body. Nothing in these terms states implies that a personal examination must take place with the examiner and examinee in the same room or physical space. Mental illness manifests through thoughts and mood, so while it is possible that physical proximity might provide the examiner with insight into a person’s thoughts or mood, it is at least equally possible that an examination via a videoconferencing software would be sufficient to gain such insight.

In this case, the probate court entered an order granting the petition for a continuing mental health treatment order.

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Aldrich Legal Services represents clients in a wide range of probate litigation matters. Given the emotional nature of these cases it is critical that anyone involved retain highly qualified legal counsel.

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FAMILY LAW 88: The trial court found that the children did not have an established custodial environment with defendant because, before the separation, he did not have a large role in the children’s lives.

The trial court credited plaintiff’s testimony that, before the parties’ separation, defendant spent minimal time helping to care for the children, so its finding that the children would not have looked to defendant for guidance, discipline, the necessities of life, and parental comfort during that time was not against the great weight of the evidence.

REAL ESTATE 89: RM had not included any language in the deed providing that the property was a joint tenancy with full rights of survivorship, the property instead became a tenancy in common.

RM drafted the deed without seeking counsel and mistakenly believed that, if either she or FK died, the property would fully pass to the surviving tenant. FK’s will provided that if his wife predeceased him—which she did—the personal representative of his estate should sell any residual property that he owned and divide the cash proceeds equally among his surviving children.

FAMILY LAW 83: A trial court can terminate a parent’s rights and permit a stepparent to adopt a child.

A trial court has discretion to terminate a parent’s rights and permit a stepparent to adopt a child when the conditions of MCL 710.51(6) are met. MCL 710.51(6)(b) requires the petitioner to establish that the other parent had the ability to visit, contact, or communicate with the children, and substantially failed or neglected to do so for a period of two years.

PROBATE 53: The trust agreement included an Incontestability Provision.

A settlor’s intent is to be carried out as nearly as possible. Generally, in terrorem clauses are valid and enforceable. However, a provision in a trust that purports to penalize an interested person for contesting the trust or instituting another proceeding relating to the trust shall not be given effect if probable cause exists for instituting a proceeding contesting the trust or another proceeding relating to the trust.

FAMILY LAW 82: Court stated it would terminate the personal protection order (PPO) after the parties present documentation of the initiation of the divorce proceedings.

However, the trial court concluded that these matters should, in fact, be in the province and the jurisdiction of the Family Division and in that respect, having issued a personal protection order, the Court stated it would terminate the personal protection order after the parties present documentation of the initiation of the divorce proceedings.

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