A. When any person shall have been adjudged legally mentally incompetent, a petition may be presented to the court or the judge thereof which made such adjudication or to the court or the judge of the county where the person resides, for a finding and order declaring the person restored to soundness of mind.

1. If an order is entered restoring the person to soundness of mind, such order shall be forwarded to the court which made the order adjudging said incompetency, and shall be placed in the original file of the matter. The order shall not affect any guardianship proceedings pending so as to prevent the payment of any lawful claims against such guardianship estate.

2. If a person has been adjudged to be legally mentally incompetent in another state, the petition may be presented to the district court or the judge thereof where the consumer resides or where the facility in which the consumer is confined is located. The petition may be presented by the person who has been declared to be incompetent, or by the father, mother, husband, wife, brother, sister, child, or next of kin of the person, or by the executive director of the facility in which the consumer is held, provided, the executive director is of the opinion that the consumer has recovered.

3. a.If the executive director of the facility where a person is confined files a petition, in addition to requesting an adjudication as to the person’s competency, the executive director may request the appointment of a temporary guardian to whom the mentally incompetent person may be released pending the hearing on the petition.

b.If a request is made, the executive director must attach a verified affidavit to the petition stating that the consumer no longer needs care and treatment and confinement is not necessary for the safety of the consumer and the safety of others.

B. The district attorney of the county in which the petition is filed shall represent the executive director of the facility in which the consumer is kept and shall prepare the necessary pleadings for the executive director.

C. Upon presentation of the petition to the court or the judge, the court or the judge shall set a time for hearing, and in case the application is made by the person adjudged mentally incompetent, shall issue notice of the hearing to be given to the person who applied for such adjudication, if the person be found in the county, and may cause such further notice to be given as to the court or the judge seems proper.

D. If, upon the hearing of the petition the court or the judge from the testimony given, shall find such person restored to soundness of mind, an order shall be entered declaring the person mentally competent. The testimony of at least two qualified examiners establishing the sanity of such person, shall be required before the finding of the court or the judge and entering the order.

E. The provisions of this section must also be followed when determining the competency of a person who has legally been determined to be mentally incompetent although the person is not institutionalized.

Added by Laws 1953, p. 168, § 75, emerg. eff. June 3, 1953. Amended by Laws 1965, c. 343, § 1, emerg. eff. June 28, 1965. Renumbered from § 75 of this title by Laws 1986, c. 103, § 103, eff. Nov. 1, 1986. Amended by Laws 2005, c. 150, § 63, emerg. eff. May 9, 2005.