Guardianship and Conservatorship

When someone can no longer adequately manage their finances or care for their health, the Probate Court can appoint a guardian or conservator to handle those needs for that individual. The process of petitioning for guardianship and demonstrating that guardianship is appropriate can be complex.

For that reason, the best course of action is to plan ahead and avoid the need for guardianship by preparing powers of attorney. When a power of attorney is not available or not adequate for the situation, Maine Elder Law Attorneys, P.A. can assist with appointment of a guardian or conservator. 

Requirements for Granting Guardianship

Guardianship is viewed as a drastic measure. Before a court will grant a petitioner the ability to serve as guardian of another adult, Maine Rev. Stat. §5-301 requires the petitioner to show “clear and convincing evidence” that:

• The adult lacks the ability to receive and evaluate information or communicate decisions
• Needs cannot be met by other less restrictive alternatives
• Appointment of a guardian is necessary or desirable for the physical health, safety, or self-care of the adult.

The Court will appoint a “visitor” who will interview the person being considered for guardianship to explain the proceedings, find out whether the person has an objection, and let them know they have the right to seek legal counsel and contest the proceedings. 

Whether you are seeking to be appointed as guardian or you wish to object to appointment of a guardian, the experienced legal advisors at Maine Elder Law Attorneys, P.A. will strive to achieve your objectives. 

Who Will the Court Appoint as Guardian?

Once the Probate Court determines that guardianship is necessary, the court then must decide who is most appropriate to fulfill the role. If a guardian has already been approved in another jurisdiction or if the person under guardianship has nominated someone to serve in the role, those individuals would be first choices as guardian. 

Otherwise, the court will appoint (in order of preference) a spouse or domestic partner, adult child, parent (or someone named by a deceased parent), or relative with whom the person recently lived. Finally, if none of these are available to serve, a family member or other individual who has demonstrated “special care and concern” may be named as guardian under Maine Rev. Stat. §5-309. 

What Authority Does a Guardian Have?

There are two types of guardianship in Maine. In full guardianship, the guardian can exercise the same authority that a parent holds over a minor child. The guardian controls decisions about living arrangements, managing and controlling money, activities, and medical care. In a limited guardianship, the guardian controls only certain aspects of an individual’s life. 

Maine Elder Law Attorneys, P.A. Assist with All Phases of Guardianship Proceedings

If you are not sure whether guardianship is appropriate, the experienced team at Maine Elder Law Attorneys, P.A. would be happy to review the circumstances and any other options that may be available. We are also prepared to handle the legal requirements and work to achieve your objectives to the pursue the right care for your loved ones. 

We can also develop a plan to prepare for guardianship or avoid the need for guardianship. Talk to us today to learn how we could assist.