(2) The court shall conduct a hearing to determine whether to appoint a guardian ad litem in a proceeding under this chapter if:

(a) A party moves for the appointment and the affidavit or oral representations submitted in support of the motion state facts that, if proved at a hearing under this section, would establish that it is more probable than not that:

(A) Due to the parent’s mental or physical disability or impairment, the parent lacks substantial capacity either to understand the nature and consequences of the proceeding or to give direction and assistance to the parent’s attorney on decisions the parent must make in the proceeding; and

(B) The appointment of a guardian ad litem is necessary to protect the parent’s rights in the proceeding during the period of the parent’s disability or impairment; or

(b) The court has a reasonable belief that:

(A) Due to the parent’s mental or physical disability or impairment, the parent lacks substantial capacity either to understand the nature and consequences of the proceeding or to give direction and assistance to the parent’s attorney on decisions the parent must make in the proceeding; and

(B) The appointment of a guardian ad litem is necessary to protect the parent’s rights in the proceeding during the period of the parent’s disability or impairment.

(3)(a) A court may not appoint a guardian ad litem under this section unless the court conducts a hearing. At the hearing, the court may receive testimony, reports and other evidence without regard to whether the evidence is admissible under ORS 40.010 to 40.210 and 40.310 to 40.585 if the evidence is:

(A) Relevant to the findings required under this section; and

(B) Of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs.

(b) For purposes of this subsection, evidence is relevant if it is "relevant evidence" as defined in ORS 40.150.

(4) A court may not appoint a guardian ad litem for a parent unless the court finds by a preponderance of the evidence presented at the hearing that:

(a) Due to the parent’s mental or physical disability or impairment, the parent lacks substantial capacity either to understand the nature and consequences of the proceeding or to give direction and assistance to the parent’s attorney on decisions the parent must make in the proceeding; and

(b) The appointment of a guardian ad litem is necessary to protect the parent’s rights in the proceeding during the period of the parent’s disability or impairment.

(5) The fact that a guardian ad litem has been appointed under this section may not be used as evidence of mental or emotional illness in any juvenile court proceeding, any civil commitment proceeding or any other civil proceeding. [2005 c.450 §2]