Maine Probate and Trust Law Advisory Commission - Report to Maine Legislature Joint Standing Committee on Judiciary Re: L.D. 1322; Resolve 2015, Chapter 73, Section 2
Resolve, Directing the Probate and Trust Law Advisory Commission to Study and Make Recommendations Regarding Supported Decision Making
Unless the allegedly incapacitated person is already represented by an attorney, "the court shall appoint one or more of the following: a visitor, a guardian ad litem or an attorney to represent the allegedly incapacitated person in the proceeding. If it comes to the court’s attention that the allegedly incapacitated person wishes to contest any aspect of the proceeding or to seek any limitation of the proposed guardian’s powers, the court shall appoint an attorney to represent the allegedly incapacitated person." Me. Rev. Stat. Ann. tit 18-A, § 5-303(b). "Before removing a guardian or accepting the resignation of a guardian, the court, following the same procedures to safeguard the rights of the ward as apply to a petition for appointment of a guardian, may send a visitor to the residence..." Me. Rev. Stat. Ann. tit. 18-A, § 5-307(c).
Identical to model rule. "When a client’s capacity to make adequately considered decisions in connection with a representation is diminished...the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client." Me. Rules of Professional Conduct, Rule 1.14 (a). "A client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting client's own well-being." Id. at comment 1. "The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication." Id. at comment 2. "[T]he lawyer must keep the client’s interests foremost and, except for protective action authorized under paragraph (b), must look to the client, and not family members, to make decisions on the client’s behalf." Id. at Comment 3. "If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client." Id. comment 4. "It may be that the client's right to control the choice of objectives during the professional relationship must be honored by the attorney under all but the most extreme circumstances. There seems to be general agreement that the attorney may only participate in or contribute to an interference with that right when he reasonably concludes that the client has demonstrated an incapacity to decide. When that threshold has been crossed, however, we conclude that the attorney's duty to act in the client's interest takes precedence over the duty to carry out the decisions the client expresses as his or her preference." Maine Bar Opinion # 84.
"We weigh the asserted right and the risk of being erroneously deprived of that right against the cost of the process that is requested. In performing that balancing for the mental examination required in section 5-303(b), we conclude that an alleged incapacitated person may not be ordered to undergo a medical or psychological examination without a good cause determination, that, is good cause to believe that the alleged incapacitated person may be incapacitated, as that term is defined at Me. Rev. Stat. Ann. tit. 1-A, § 5-101(1) (1998), and good cause to believe that an examination would assist the court in determining whether the person is incapacitated. Furthermore, an evidentiary hearing is not necessary to make that determination if the documentary information is adequate for the court's finding of good cause". In re Guardianship of K.M., 866 A.2d 106, 116-17 (Maine 2005). Petitions for the appointment of a guardian should not be decided by summary judgment. "Involved in those proceedings are issues of the substantial curtailment of individual rights or interference with personal autonomy which, at least in most cases, can be resolved only through fact-finding." In re Guardianship of Jo Ann L. 847 A.2d 415, 418 (Maine 2004).
If a visitor or guardian ad litem is appointed, they must interview the allegedly incapacitated person and the proposed guardian, and visit the proposed home. Me. Rev. Stat. Ann. tit. 18-A, § 5-303(c). The visitor or guardian ad litem must “explain the meaning and possible consequences of the requested appointment to the allegedly incapacitated person and inquire if the person wishes to attend the hearing, to contest any aspect of the proceedings or to seek any limitation of the proposed guardian’s powers.” Id. If the visitor or guardian ad litem determine that the allegedly incapacitated person wants to contest any issue and does not have counsel, they must note this in the report. Id. At the initial hearing, the allegedly incapacitated person is entitled to “be represented by counsel, to present evidence, to cross-examine witnesses, including the physician, the visitor and the guardian ad litem.” Id. The hearing may be closed by request. Id.
- Me. Rev. Stat. Ann. Tit. 18-A, §§ 5-101: http://www.mainelegislature.org/legis/statutes/18-a/title18-Asec5-101.html
- 5-301: http://www.mainelegislature.org/legis/statutes/18-a/title18-Asec5-301.html
- Me. Rev. Stat. Ann. tit. 18-A, §§ 5-303(B): http://www.mainelegislature.org/legis/statutes/18-a/title18-Asec5-303.html
- 307(C): http://www.mainelegislature.org/legis/statutes/18-a/title18-Asec5-307.html
- Me. Rules of Professional Conduct, Rule 1.14 (a): http://mebaroverseers.org/attorney_regulation/bar_rules.html?id=88205
- Maine Bar Opinion # 84: http://www.mebaroverseers.org/attorney_services/opinion.html?id=91464
- In re Guardianship of K.M., 866 A.2d 106, 116-17 (Maine 2005): http://www.leagle.com/decision/2005972866A2d106_1969.xml/IN%20RE%20GUARDIANSHIP%20OF%20K-M
- In re Guardianship of Jo Ann L. 847 A.2d 415, 418 (Maine 2004): http://www.ecases.us/case/me/1482034/in-re-guardianship-of-jo-ann-l