Guardianship Nightmare Unlikely in Maine

Posted on November 21, 2018

A recent issue of the AARP magazine included an article about guardianship abuse. It featured a story of a woman whose life was taken over by a professional guardian, who placed her in an institution and cut her off from her only family – a stepson. In her case, the process of unraveling the guardianship and getting her a more appropriate placement took years and depleted most of her savings. The article uses this worst-case scenario to make some valid points about the need for research, reform, and oversight of the guardianship system nationally, and in a few states in particular. A former law school professor of mine, Nina Kohn, now at Syracuse University, was quoted as saying, “[A] subset of guardians act in ways that violate the rights and insult the humanity of those they serve.”

I do not think that the nightmare scenario described in this article is likely to occur here in Maine. That’s not to say that it couldn’t happen – but it seems unlikely for a number of reasons. First, I don’t know of many professional “Guardians” in Maine; my impression is that the vast majority of guardians and conservators in the state of Maine are family members of the incapacitated person. Second, this nightmare scenario – where a distant family member is blocked from the process, a professional guardian seems more intent on lining his own wallet than in the welfare of the incapacitated individual, and a facility is at least incompetent, if not outright complicit in the scheme – seems to require a number of  factors coming together at the same time. Of the small number of professional guardians/conservators in the Maine, I dare say the vast majority of them are reputable and trustworthy.

Under Maine’s current guardianship and conservatorship statutes, most family members of an allegedly incapacitated person must be notified that a petition for guardianship/conservatorship has been filed with one of the county Probate Courts. All of the Probate  Court judges and Registers in the State of Maine are careful about being sure that all the people who must receive notice of a petition have, in fact, received notice, before granting even a temporary guardianship or conservatorship. Furthermore, the revision of the Probate Code that was passed by the Maine legislature last year and goes into effect in the summer of 2019 has more notice requirements than the current statute; that is, more people will be entitled to notice of a petition for guardianship under the soon-to-be implemented statute than under the current statute. For example, under the new version, a “person known to have routinely assisted the respondent with decision making within the 6 months before the filing of the petition” must be notified. (It is not clear from the AARP article whether the stepson would have fallen into this category, but it seems likely.)

Although the scenario in the article linked above seems unlikely to occur in Maine, you may want to consider preparing an Advanced Health Care Directive, in which you nominate someone to serve as your guardian should you need one. You may also want to name an agent under Power of Attorney to handle your finances for you if you are unable. Any of the attorneys at Levey, Wagley, Putman & Eccher, PA would be happy to discuss these documents with you. Interested? Give us a call!

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About Daniel Eccher

Attorney Daniel J. Eccher enjoys helping clients figure out how to afford long-term care while having something left for their family. He also enjoys helping couples establish estate plans such that their children will be provided something upon the couple’s death. Dan has a particular interest in estate planning for same-sex couples. He has been in legal practice in Maine since 2014.

Daniel Eccher

Attorney Daniel J. Eccher enjoys helping clients figure out how to afford long-term care while having something left for their family. He also enjoys helping couples establish estate plans such that their children will be provided something upon the couple’s death. Dan has a particular interest in estate planning for same-sex couples. He has been in legal practice in Maine since 2014. view Daniel's full bio