What is GuardianShip?
A guardian is a legally recognized alternate decision maker for a person who is incapacitated. The person with incapacity, for whom the guardianship is set up, is called the ward. “Capacity” and “incapacity” are legal terms which define the boundary between a person’s ability, or not, as the case may be, to make informed, reasoned decisions in important areas of life, such as medical or financial decisions, or whom to marry. A person who is found to be incapacitated cannot make those decisions.
Are there different types of guardianship?
Yes, a guardianship can be full, meaning that the guardian makes all decisions for the ward, or limited, meaning that the guardian can make decisions for the ward only in whatever areas of life that have been authorized and enumerated by the probate court.
Sometimes guardianship is confused with conservatorship, which is basically a guardianship for a person but only for financial matters. A guardian still can make most normal financial decisions for the ward, without obtaining a conservatorship.
What are the powers and duties of a guardian?
A full guardian for an adult incapacitated person has the same power as a parent has over a child, even though the ward is of adult age. (18-A M.R.S. §3-312) For instance a guardian can decide where it is that a ward will live. A limited guardian has the same powers in whatever areas have been designated by the probate court, such as medical or financial.
A guardian is expected to act in the best interests of the ward. A full guardian, or a limited guardian with the power to make medical decisions, may withhold or withdraw life sustaining treatment without a court order, unless the guardian’s decision is made contrary to the advice of the ward’s primary physician, assuming that the ward never left written instructions if the ward ever had capacity.
Note that having a legal power, and being able to exercise that power, are two different things. For instance a guardian may have the legal right to tell the ward where to live, but sometimes trying to enforce that decision on the ward can be difficult. There is no absolute guarantee that other entities in society, such as police, will enforce the guardian’s decision on where the ward will live.
If I become guardian, am I financially liable for the costs of the ward’s care, or the ward’s debts?
No. The probate law states that a guardian is not legally obligated to provide from the guardian’s own funds for the ward, and is not liable to third persons for the acts of the ward. (18-A M.R.S. §5-312(a))
My child has severe disabilities. I have made all the important decisions in her life.
Do I need to become guardian now that she is an adult?
Yes, if you want the legal authority to continue to make similar important decisions on her behalf. The law presumes that anyone over eighteen years of age is competent to make decisions on their own. Even though the adult child’s disabilities are obvious to everyone, and even though you have been acting as decision maker in your child’s life, you need the authority granted by a probate court to continue in that role.
How do I become a guardian?
A guardianship begins with the filing of a petition for appointment of a guardian for an incapacitated person in the probate court of the county in which the proposed ward lives. That petition is on a form provided by the probate court called a PP-201. You also have to file a form PP-502, which sets out the plan you devise to make sure that that ward’s needs are met. The third form that has to be filled out is on PP-505. That form is filled out by a physician or psychologist. The forms are available at any county probate court for a small fee. Many forms are available on line. Clerks of probate courts can be quite helpful in giving information about the guardianship process but they refuse to give legal advice.
The proposed ward must be given notice of the hearing, and may attend the hearing. The hearing itself may be in the courtroom but some probate judges do conduct the hearing in chambers, depending on the circumstances of the case.
Hiring an attorney is not absolutely necessary if you are comfortable filling out forms and presenting your case to the judge. The probate judge may appoint a visitor or guardian-ad-litem (who is like a visitor but who is an attorney) to interview the proposed ward and investigate the circumstances of the proposed guardianship and report back to the court in writing. (18-A M.R.S. §5-407(b-1)) If the proposed ward is likely to contest the guardianship, or if someone else (like an ex-spouse) is also vying to be appointed guardian then it is probably better to have the help and advice of an attorney.
how do I choose between full and limited guardianship?
It really depends upon the individual’s circumstances. The probate court is required to encourage the development of maximum self-reliance and independence of the ward and to issue protective orders that are tailored to the ward’s actual mental and adaptive limitations. (18-A M.R.S. §5-408) So full guardianship should not necessarily be assumed. Consistent with the principle of using the least restrictive appropriate alternative, a petitioner for guardianship should try to preserve areas of decision making for the ward if the ward has demonstrated some competence in those areas.
I am a guardian for my adult child, but I will not live forever.
What should I do to help make sure there is a guardian after I am no longer around?
The parent of an incapacitated person may by his or her will appoint a guardian. (18-A M.R.S. §5-301) The new guardian designated in the will has to file an acceptance of the appointment in the court where the parent’s will is probated, after giving seven days written notice to the ward and to the person who is taking care of the ward or the ward’s nearest adult relative. If someone files an objection, then the appointment by will is terminated and the court will decide who becomes the new guardian.
That is the legal side of things. This is really a family matter. If you can, identify a person within the family or someone you trust who is willing to be nominated in your will. Then if possible start the process of having the person become acquainted with the needs and desires of the ward, and the special issues that might arise in the ward’s life.
Can I temporarily delegate my guardianship authority to someone else?
Yes. A guardian can delegate any power except the authority to consent to a marriage, for up to twelve months, by a properly executed power of attorney. The power of attorney has to be filed with the probate court. (18-A M.R.S. §5-104)
Where can I learn more about guardianship?
Yes. The Maine Department of Health and Human Services, Office of Aging and Disability Services has a web site about guardianship that is available. It provides useful information, and a “Guardianship Guide”, much of which is about possible alternatives to guardianship.