Rights of legally incapacitated individual; petition to change residence; hearing.

Sec. 5306b. (1) A legally incapacitated individual has the right, if possible, to remain in the individual's own surroundings, or, if not possible, in the least restrictive environment suitable to the individual's unique needs, abilities, and resources. (2) Except as otherwise provided in this section, before moving a legally incapacitated individual from the individual's permanent residence, a guardian must file a petition that includes all the following information on a form created by the state court administrative office or in a substantially similar form: (a) The individual's permanent residence. (b) The proposed new residence. (c) The reason for the proposed move. (d) Whether the move is to the least restrictive environment suitable to the individual's unique needs, abilities, and resources, including consideration of any potential for harm and the individual's rights under section 5306a. (e) How the move will impact the individual's ability to continue to participate in the individual's community activities and personal relationships. (f) The efforts made or resources explored to enable the individual to remain in the individual's own current residence, including but not limited to home and community based services, physical and occupational therapy, and available home modifications. (g) How the guardian has communicated with the individual about the proposed move and whether the individual objects to or supports the proposed move. (3) If a petition for moving the legally incapacitated individual is filed under subsection (2), the court must appoint a guardian ad litem and hold a hearing not later than 28 days after the petition is filed. The guardian ad litem must, in addition to the other duties set forth in 5305, do all of the following: (a) Advise the individual that a petition has been filed to move the individual from the individual's permanent residence. (b) Explain that if the court grants the petition to move the individual, the guardian will have the authority to change the individual's permanent residence to the location specified in the petition or another location the court determines is appropriate. (c) Determine, if possible, the wishes of the individual to remain in the individual's permanent residence and whether the individual objects. (d) Include this information in the guardian ad litem's written report. (4) If the individual does not already have retained legal counsel, the court must appoint legal counsel if the individual objects to the move, if the guardian ad litem recommends appointment of legal counsel, or if the court determines appointment of legal counsel is appropriate. (5) The court shall not grant a petition for removal from the permanent residence filed under subsection (2) unless the court, after a hearing, finds by clear and convincing evidence that all of the following apply: (a) The move will appropriately protect the individual's physical health, safety, or welfare. (b) The move is to the least restrictive environment suitable to the individual's unique needs, abilities, and resources, including consideration of any potential for harm and the individual's rights under section 5306a. (c) If the individual does not consent to the move, there is no reasonable or appropriate way to provide similar benefits for the individual in the individual's permanent residence through use of home and community based services, physical or occupational therapy, available home modifications, or other means. (d) The move will allow the legally incapacitated individual the greatest opportunity to continue to be involved in the individual's community activities and personal relationships. (e) The move is not being arranged solely or primarily for the convenience of the guardian. (6) If the court finds based on clear and convincing evidence that a location other than the permanent residence or proposed new residence meets the criteria of subsection (5), the court may order that the guardian move the individual to a location that meets the criteria of subsection (5). (7) A guardian may move a legally incapacitated individual before a petition filed under subsection (2) if either of the following applies: (a) The court previously granted the guardian authority to move the legally incapacitated individual based on a hearing on the record consistent with subsection (5) including findings of fact on the record when the court appointed the guardian on an initial or subsequent petition. (b) An emergency condition exists, including, without limitation, an emergency that presents a risk of serious harm to the safety of the legally incapacitated individual. (8) If a guardian moves a legally incapacitated individual under subsection (7), the guardian must take all reasonable steps to preserve the individual's permanent residence. (9) If a guardian moves a legally incapacitated individual under subsection (7), the guardian shall notify the court not later than 14 days after the move of the ward's temporary place of residence. (10) If a guardian determines that following a temporary absence from the permanent residence, for reasons including but not limited to an emergency, travel, short term rehabilitation, or hospitalization the legally incapacitated individual will not return to their permanent residence, the guardian must file a petition under subsection (2). (11) The court shall order a review of the placement at a time and date set by the court if the legally incapacitated individual's circumstances and resources are expected to change such that the current permanent residence may no longer be the least restrictive environment suitable to the legally incapacitated individual's unique needs, abilities, and resources. (12) A guardian shall file a petition under subsection (2) if any of the following apply: (a) The legally incapacitated individual's circumstances and resources change. (b) The changes support moving an individual to the new permanent residence. (c) The move is to the least restrictive environment suitable to the legally incapacitated individual's unique needs, abilities, and resources, including consideration of any potential for harm and the individual's rights under section 5306a. (d) The move is not being arranged solely or primarily for the convenience of the guardian. (e) If removal from the permanent residence requires the sale, transfer, or disposal of real property or personal property, the guardian has made reasonable efforts to communicate with the legally incapacitated individual and the individual's loved ones to identify and honor the legally incapacitated individual's wishes to preserve sentimental personal property in the overall context of the legally incapacitated individual's values, wishes, and resources. The court may remove a guardian that fails to comply with this subsection. (13) As used in this section, "individual's permanent residence" means the individual's true, fixed, and permanent home to which, whenever absent, the individual intends to return.