MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	23

Docket: Lin-18-38

Argued: October	11,	2018

Decided: February	12,	2019

Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

GUARDIANSHIP	OF	PATRICIA	S.

HJELM,	J.

[¶1]		Michael	Zani	and	Peter	Zani appeal	from a judgment	issued	by the	

Lincoln	 County	 Probate	 Court	 (Avantaggio,	 J.)	 denying	 their	 petition	 to	 be	

appointed	 co-guardians	 of	 their	 mother,	 Patricia	 S.,	 who	 is	 an	 incapacitated	

adult,	and	instead	appointing	Karin	Beaster	and	Nancy	Carter	as	co-guardians

even	 though	Beaster	and	Carter	had	not	 filed	petitions	 to	be	appointed.		The	

Zanis contend that the	court	erred by (1)	appointing	Beaster	and	Carter	when	

they	 had	 not	 complied	 with	 the	 statutory	 requirements	 applicable	 to	 a

guardianship	 petition,	see	18-A M.R.S.	 §	 5-303(a)	 (2017);1 (2)	 not	 giving	the	

Zanis	priority	for	appointment	as	guardians	pursuant	to	18-A	M.R.S.	§	5-311(b)

(2017);	 and (3)	 determining	 that	 appointment	 of	 Beaster	 and	 Carter	 as	

co-guardians	 is	 in	 the	 mother’s	 best	 interest. We	 vacate	 the	 judgment	 and	

 1		Effective	July	1,	2019,	the	current	Probate	Code	found	in	Title	18-A will be	repealed in	its	entirety

and	replaced	with	a	new	Probate	Code	to	be	codified	in	Title	18-C.		See P.L.	2017,	ch.	402.		All	citations	

in this	opinion are	to	the	Code	currently	in	effect.
2

remand	for	further	proceedings	because	Beaster	and	Carter	had	not	fulfilled	the	

pretrial	 filing	 requirements	 of	 section 5-303.	 	 In	 the	 interest	 of	 judicial	

economy,	we	also	address	the	Zanis’	claim	of	statutory	priority.

I.		BACKGROUND

[¶2]		The	following	facts are	set	out	in	the	procedural	record	and	in	the

court’s	 findings,	 which	 were	 issued after	 a	 testimonial	 hearing and are

supported	 by	 competent	 record	 evidence.	 	 See Oliver v. E. Me. Med. Ctr.,

2018 ME 123, ¶ 2, 193 A.3d 157.

[¶3]		As	all	parties	agree,	the	Zanis’	mother—in	significant	part	because	

of	the	complexity	of	care	she	needs—is	incapacitated	to	a	degree that	supports

the	appointment	of	a	guardian.		18-A	M.R.S.	§ 5-101(1),	(2) (2017). The Zanis

both	 reside	 in	 California.	 	 Although	 they	 are	“accomplished	 and	 competent	

professionals	who	are	concerned	for	their	mother’s	best	interests,” they have

been	largely	estranged	from	their	mother	for	a	significant	period.		Since	1979,	

Michael	 has only had	 infrequent	 contact	 with	 his	 mother,	 and	 there	 was	 a

twelve-year	period	when	they	had no	contact	at	all.		Michael has	organized	and	

overseen	the	care	provided	to	his	mother, but	his phone	conversations with his	

mother are	 difficult	 and	 often	 end	 with	 the	 mother	 becoming	 upset	 and	

stressed to	 the	 point that	 she	 requires	 medication.	 	Peter’s	 contact	 with	 his	
3

mother	has	been	very	limited—he last	saw	his	mother	in	2010,	and	before	that,	

in	1991—and	she	has	told	him	“not	to	come”	to	see	her.		Peter’s	involvement	in	

his	mother’s	care	has	been	limited	to	talking with	Michael	about	it.

[¶4]		The	Zanis	vetted	and	hired	Beaster	and	Carter	to	assist	the	mother.		

Beaster	has	a	degree	in	geriatric	social	work,	is	a	crisis	responder,	and	has	been	

involved	in	hospice	care	and	private	duty	care	for	approximately	fifteen	years.		

She	has	been	“an	integral	part”	of	the	team	caring	for	the	mother since	March	

of	 2017, and, among	 other	 things,	 oversees	 the	 administration	 of	 all	

medications prescribed	to	the	mother.		Carter	has	worked	for	the	mother	for	

more	 than	 five	 years	 and	 provides hands-on,	 in-home	 care. Carter	 is

responsible	 for scheduling	 the	 staff	 that provides the	 mother	 with	

around-the-clock	care.		Beaster	and	Carter have nearly	daily	contact	with	the	

mother, and	each	has spent	more	time	with	her	in	recent months	than	both	of	

the	Zanis	have	in	years.		The	mother	considers	both	Beaster	and	Carter	to	be	

her	 friends—they	know	her	well, and	she trusts them.		The	mother	has	been	

consistently	and	increasingly	opposed	to	the	appointment	of	her	sons	to	be her	

guardians	since	October	of	2017,	which	was	two	months	before	the	hearing	was	

held.		
4

[¶5]		In	August	of 2017,	the	Department	of	Health	and	Human	Services	

filed	a	petition	seeking	the	appointment	of the	mother’s	adult	stepson	as her

guardian	 and	 conservator.	 	 See	 18-A M.R.S.	 §	 5-303(a). In	 support	 of	 the	

petition,	 the	 Department	 submitted	 reports	 prepared	 by a	 primary	 care	

provider	and	a	psychiatrist,	who	had	each	examined	the	mother	and	concluded	

that	 she	 was	 incapacitated.	 	 On	 the	 Department’s	 request	 for	 the	 court	 to	

appoint	 a	 temporary	 guardian, the	 court	 held	 an	 expedited	 hearing	 and	

appointed	 the	 stepson	 as	 temporary	 guardian.	 See 18-A M.R.S.	 § 5-310-A(a)	

(2017). The	 court	 also	 appointed	 a	 guardian	 ad	 litem for	 the	 mother.	 	 See	

18-A M.R.S.	§ 5-303(b) (2017).

[¶6]	 	 The	 Zanis	 opposed	 the	 Department’s	 petition	 and	 filed	 a	

cross-petition	 to	be	appointed	permanent	co-guardians.		Prior	 to	the hearing

on	 the	 guardianship	 petitions filed	 by	 the	Department	 and	 by	 the	 Zanis,	 the	

Department’s	nomination	of	the	mother’s	stepson	as	guardian	was	withdrawn,	

leaving	only	 the	Zanis’	petition	 to	be	adjudicated.2 Although	 the	Department	

subsequently	 took	 the	 position	 that	 Beaster	 and	 Carter	 should	 be	 appointed	

 2		Also	prior	 to	 the	hearing,	 the	parties	stipulated	 to	 the	appointment	 of	a	third	person	as	 the	

mother’s	conservator.		18-A	M.R.S.	 §	5-410(a)	(2017).		The	conservatorship	is	not	at	issue	in	 this	

appeal.
5

co-guardians,	 the Department	 did	 not	 file	 a	 new	 or	 amended	 petition	

nominating	them,	and	Beaster	and	Carter did	not	file	petitions on	their	own.		

[¶7]		In	December	of 2017,	 the	court	held	a	contested	 full-day	hearing,	

where	the	mother,	the	Zanis,	and	the	Department	were	represented	by	counsel.		

The	court	heard	testimony	from	Michael Zani, Peter Zani, the	mother,	Beaster,	

Carter,	 and	the	 GAL.	 	During	 her	 testimony,	 the	 mother	 confirmed	that	 she	

wanted	Beaster	and	Carter	to	be	appointed	her	co-guardians, and	Beaster	and	

Carter both testified	that	they	were	willing	to	be	appointed	to	that	position.		

[¶8]	 	At	 the	 conclusion	 of	 the	 hearing,	 the	 court	 directed	the	mother’s

attorney	to	file	acceptances	of	appointment and	a	guardianship	plan	on	behalf	

of	Beaster	and	Carter,	see	18-A	M.R.S.	§§ 5-303(a),	5-305	(2017),	and they	did	

so	 two	 weeks	 later.	 The	 Zanis	 objected	 and	 moved	 to	 strike	 the	 filings—a	

motion	the	court	later	denied—and	in	their	written	summation	they	objected

to the appointment of Beaster and Carter on the merits.

[¶9]		In	early	January	of	2018,	the	court	entered	a	judgment	appointing	

Beaster	and	Carter	as	the	mother’s	co-guardians after	determining	 that	 their	

appointment was	in	the	mother’s best	interest because	they	are	“trusted	and	

qualified”	and	had	been	chosen	by	the	Zanis	themselves	to	serve	as	the	mother’s	

caregivers.		The	court	also	concluded,	for	several	reasons	it	articulated in	both	
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its	 judgment	 and	 an	 order	 on	 the	 Zanis’	 motion	 for	 further	 findings,	 see	

18-A M.R.S.	§	5-304(c)	(2017),	that	it	was	not	in	the	mother’s best	interest	to	

have	Michael Zani or	Peter Zani, either	individually	 or	jointly,	appointed	her	

guardian or	co-guardians.		The	Zanis	filed	a	timely	appeal	to	us.		See 18-A	M.R.S.	

§	1-308	(2017);	M.R.	App.	P.	2B(c)(2)(B).

II.		DISCUSSION

[¶10]		The	Zanis	argue on	appeal	that	the	court	erred by (1)	appointing

Beaster	 and	 Carter	 as	 co-guardians because	 they	 had	 not	 filed nominating	

petitions,	guardianship	plans,	or	acceptances	prior	to	the hearing;(2)	not	giving	

the	 Zanis,	 as	 the	 mother’s	 adult	 children,	 priority	 for	 appointment;	 and	

(3) determining	that	the	appointment	of	Beaster	and	Carter	is	in	the	mother’s	

best	interest.		For	the	reasons	discussed	below, we	vacate	the	judgment	based

on the	 first	 of	 these	 challenges—the	 procedural	 deficiencies	 affecting	 the	

court’s	consideration of	Beaster	and	Carter as	possible	guardians.		In	order	to	

promote	 judicial	 economy	 and	 efficiency	 in	 the	 ultimate	 resolution	 of	 this	

matter,	we	also	address	the	Zanis’	assertion	that	they	are	entitled	to	statutory	

priority	over	Beaster	and	Carter.

3

 3 Because	additional	evidence	may	be	presented	to	the	court	on	remand,	we	do	not	address	the	

sufficiency	of	the	present	record	to	support	the	court’s	best-interest	determination.
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A. Guardianship	Petition	Procedure

[¶11]		The	central	question	presented	on	this	appeal	is	whether,	during	

the	course	of a	proceeding on	a	petition	for	appointment,	the	court	is	statutorily	

authorized	 to	 appoint as	 guardian a third	 party who	 has	 not	 satisfied	 the	

requirements	that	the	petitioning	party	him	or	herself must	satisfy.		This	calls	

for	us	to	construe	18-A	M.R.S.	§	5-311(a)	(2017), which	states	in	pertinent	part	

that	 “[a]ny	 competent	 person	 or	 a	 suitable	 institution	 may	 be	 appointed	

guardian	of	an	incapacitated	person.”		The	court	concluded	that the	breadth	of	

the	phrase	“[a]ny	competent	person”	means	that	the person	who	is	ultimately

appointed	 to	 be	 guardian	 need	 not	 have	 filed	 the	 material required	 of	 the	

original	petitioner.		We	disagree.

[¶12]	 	 “Statutory	 construction	 is	 a	 question	 of	 law	 that	 we	 consider	

de novo.”		Guardianship	of	Thayer,	2016	ME	52,	¶	13,	136	A.3d	349.		Our	“single	

goal”	in	interpreting	a	statute	is	to	give	effect	to	legislative	intent.		Dickau	v.	Vt.

Mut.	Ins.	Co.,	2014	ME	158,	¶	19,	107	A.3d	621.	 To determine legislative intent,

we first determine if the statute’s language is “plain and unambiguous.”		Id. If

so, we construe it according to that plain and unambiguous meaning.		State	v.	

Mourino,	2014	ME	131,	¶	8,	104	A.3d	893. If, however, “the statutory language

is ambiguous, meaning that it is reasonably susceptible to multiple
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interpretations, or is silent on a particular point, we will then consider other

indicia of legislative intent including the purpose of the statute.” Davis v.

McGuire, 2018 ME 72, ¶ 17, 186 A.3d 837 (quotation marks omitted); see also

Thayer, 2016 ME 52, ¶ 13, 136 A.3d 349 (stating that we must “consider the

provision at issue in light of the entire relevant statutory scheme in order to

arrive at a harmonious result” (quotation marks omitted)); Adoption	 of	

Tobias D.,	 2012	 ME	 45,	 ¶	 15,	 40	 A.3d	 990.	 We construe the Probate Code

liberally so as to promote its underlying purposes and policies, which include,

among others, simplifying and clarifying the law that affects the affairs of

incapacitated persons. See 18-A M.R.S. § 1-102(a), (b)(1) (2017).

[¶13]		The	reference	in	section	5-311(a)	to	“[a]ny	competent	person”	is	

ambiguous.	 	 Taken	 in	 isolation,	 that	 phrase	 could	 be	 read—as	 the	 court	 did	

here—to	 include even a	 person	 who	 has	 not	 filed	 a	 petition and	 the	

accompanying	material otherwise	 required to	be	appointed	guardian.		When	

viewed	in	the	context	of	the	full	statutory	framework	governing	the	process	by	

which	 guardians	 are	 appointed,	 however,	 the	 statute	 may	 also	 be	 construed	

more	 restrictively	 so	 as	 to	 limit	 those	 persons	 or	 institutions	 the	 court	 can	

appoint	 to	 those	 who	 have	 complied	 with	 the statutory pre-adjudicatory	

process imposed	 on	 formal	 guardian	 applicants.	 	 Based	 on	 the	 procedural	
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predicates to	the	appointment	of	a	guardian,	we	conclude	that	the	Probate	Code	

authorizes	 the	court	 to	appoint	as	guardian	only	a	person	who	has	complied	

with	 the	 statutory	filing requirements	 in	 a	 way	 that	 allows	 other	 interested	

persons	 a	meaningful	 opportunity	 to be	 heard	 at	 trial	 and	 that	 provides	 the	

court	 with	 important pretrial information	 about	 the	 prospective	 guardian’s	

comprehensive	plan	for	the	incapacitated	person.

[¶14]		We	begin	with	the	fundamental	notion	that	the	appointment	of	a	

guardian	 affects	 the	 incapacitated	 person’s	 fundamental	 liberties.	 	 Oliver,	

2018 ME	123,	¶	28,	193	A.3d	157;	see	also Guardianship of Helen F., 2013 ME 18,

¶ 4, 60 A.3d 786.		In	recognition	of	that,	the	Probate	Code prescribes	a	series	of	

procedural	steps that	operate	to	safeguard	those fundamental	liberty	interests.

See	18-A	M.R.S.	§	5-303; Guardianship	of	Hughes,	1998	ME	186,	¶¶ 9,	13-14,	715	

A.2d	919.

[¶15]		For a	guardianship to	be	established, “[t]he	incapacitated	person	

or	any	person	interested	in	his	welfare	may	petition	for	a	finding	of	incapacity	

and	appointment	of	a	guardian.”4		18-A	M.R.S.	§	5-303(a).		Unless	the	allegedly	

incapacitated	person	is	already	represented	by	counsel,	the	court	is	required	to	

appoint	“one	or	more	of”	a	visitor,	a	GAL,	or	an	attorney	to	represent	her in	the	

 4		“Petition”	is	defined	as	“a	written	request	to	the	court	for	an	order	after	notice.”		18-A M.R.S.

§ 1-201(31) (2017).
10

proceeding.		18-A	M.R.S.	§	5-303(b).		Upon	the	filing	of	a	petition,	the	Probate	

Court	 must	 schedule	 a	 hearing	 on	 the	 issue	 of	 incapacity,	 id.,	 and	 at	 least	

fourteen	 days’	 notice	 of	 the	 hearing	 is	 to	 be	 provided	 to	 the	 reportedly	

incapacitated	person	and	that	person’s	adult	children,	18-A M.R.S.	§	5-309(a),	

(c)	(2017).

5

[¶16]		The	Probate	Code	 also	 requires	a	prospective	guardian	 to	 file	a	

guardianship	 plan and	 a	 series	 of	 reports	 relating	 to	 the	 condition	 of	 the	

allegedly	incapacitated	person.		As	to	the	former, the	statute	provides:

The	person	nominated	to	serve	as	guardian	shall	file	a	plan	which,	

where	 relevant,	 shall	 include,	 but	 not	 be	 limited	 to,	 the	 type	 of	

proposed	 living	 arrangement	 for	 the	 ward,	 how	 the	 ward’s	

financial	 needs	 will	 be	 met,	 how	 the	 ward’s	 medical	 and	 other	

remedial	needs	will	be	met,	how	the	ward’s	social	needs	will	be	met	

and	 a	 plan	 for	 the	 ward’s	 continuing	 contact	 with	 relatives	 and	

friends.	

18-A	 M.R.S.	 §	 5-303(a).	 	 Regarding	 the	 reports,	 the	 allegedly	 incapacitated	

person	must	be	examined	by	a	physician	or licensed	psychologist, who	must	

then submit	a written report	to	the	court.		18-A	M.R.S.	§	5-303(b).		Additionally,	

an	 appointed visitor	 or	 GAL is	 required	 to interview both the	 allegedly	

 5		As	a	condition	to	the	appointment,	the	nominated	guardian	is	required	to	execute	an	acceptance,	

by	which	the	guardian	submits	to	the	court’s	jurisdiction	in	any matter	related	to	the	guardianship.		

18-A	M.R.S.	§	5-305 (2017).		As	we	note	above,	see	supra	¶	8,	this	was	one	of	the	instruments	that,	

after	the	hearing	was	completed,	the	court	directed	Beaster	and	Carter	to	file.
11

incapacitated	 person	 and	 the	 petitioner, and submit	 a	written	 report to	 the	

court.		18-A	M.R.S.	§ 5-303(c) (2017).		“Except	as	otherwise	provided	by	law,	all	

reports	and	plans	required	by	this	section	shall	be	submitted	to	the	court,	and	

all	 parties	 of	 record,	 at	 least	 10	 days	 before	 any	 hearing	 on	 the	 petition.”		

18-A M.R.S.	§ 5-303(d) (2017).

[¶17]	 	 These	 procedural	 requirements	 have	 two	 primary	 effects	 in	

anticipation	 of	 the	 guardianship	 hearing	 conducted	 by	 the	 court.	 	 First, the

reports of the evaluations required by section 5-303 provide the participants

and the court with information about the circumstances and needs of the

allegedly incapacitated person.	 	 Second—and importantly here—the

comprehensive guardianship plan allows the participants and, ultimately, the

court to assess the adequacy of the prospective guardian’s proposals to meet

those reported needs.		The overall effect of the pretrial guardianship process

therefore is to provide important information to the participants—including

the allegedly incapacitated person—and to the court, to allow an appropriate

and thorough consideration and adjudication of the substantial interests at

stake in a guardianship proceeding.

[¶18]		Here,	prior	 to	 the	guardianship	 hearing,	 reports	were	 filed	by	a	

physician,	 a	psychologist, and	 the	GAL,	 thereby	meeting	 those	aspects	 of	 the	
12

statutory	process.	 The	requirement	of	a	guardianship	plan	was	not	satisfied,	

however,	 because even	 though	 the	 court	 ultimately	 appointed	 Beaster	 and	

Carter to	serve	as	co-guardians,	they	had not submitted	such	a	plan,	much	less	

even	 a	 petition	 for	the	 court	 to	 appoint	 them	 as	 guardians. See 18-A	 M.R.S.	

§ 5-303(a).		It	appears	 that	by the time the hearing was held, the Zanis were

aware that their mother opposed their petition to be appointed her

co-guardians.

6		Further, the	GAL did	speak	with	Beaster	and	Carter	in	preparing	

his	report,	and	Beaster and Carter both testified at the hearing. Nonetheless,

Beaster and Carter had not filed a plan describing how they proposed to care

for the mother, meet the mother’s social needs, and address the other issues

that the Legislature requires a prospective guardian to articulate.		Rather, the

statutorily mandated plan was not filed until the court directed Beaster and

Carter to do so after the hearing—too late for the Zanis to develop evidence or

otherwise respond to it in an evidentiary setting.		18-A	M.R.S.	§ 5-309(a),	(c).

[¶19]	 	 Each	 of	 the	 procedural	 requirements	 that	 may	 lead	 to	 the	

appointment	 of	 a	 guardian promotes	 the	 overall	 purpose	 of	 guardianship	

 6		Beaster	testified	that	in	October—two	months	before	the	hearing—the	mother	had	told	her	that	

she	did	not	want	Michael	Zani	to	be	appointed	as	her	guardian	and	instead	wanted	Beaster	and	Carter	

to	serve	as	guardians.		She	also	testified	that	as	late	as	several	days	before	the	hearing,	the	difficult	

relationship	between	Michael	Zani	and	the	mother	created	such	significant	problems	in	her	ability	to	

care	for	the	mother	that	she	had	reservations	about	her	willingness	to	be	appointed.		
13

proceedings—providing	 “for	 the	 care	 of	 persons	 who	 are	 unable	 to	 care	 for	

themselves,”	Hunt,	Maine	Probate	Law Part	3	at	252	(1999),	and accounting	for	

the	 person’s	 best	 interest,	 18-A	 M.R.S.	 §	 5-311(b),	 while	 also	 maintaining	

sensitivity	 to	 the	 person’s	 autonomy	 to	 the	 extent	 allowed	 by	 the	 person’s	

circumstances,	see Oliver, 2018 ME 123, ¶ 32, 193	A.3d	157 (noting that the

limiting language of 5-304(a) is directed to the court’s exercise of authority in

setting the terms of a guardianship in a way that does not interfere with an

individual’s autonomy); see	 also	 Guardianship of Collier, 653 A.2d 898, 902

(Me. 1995) (stating that the appointment of a full guardian “should not be done

without careful consideration of the prospective ward’s specific needs”).		As a

central element of the legislatively prescribed process that can result in the

imposition of a guardianship, the prospective guardian must submit a plan of

care for the allegedly incapacitated person.		See 18-A	M.R.S.	 § 5-303(a).		The

persons whom the court ultimately appointed co-guardians did not do that

here.	 	As	 a	 result,	 the post	 hoc	 process used	 instead	 by	 the	 court	to fill this

procedural void deprived	the	Zanis	of	a	meaningful	opportunity	to	be	heard	on	

the	merits	of	Beaster	and	Carter’s	undocumented	interest	and	willingness	to be	

appointed	co-guardians	and	the nature	of	their plan	of	care	for	the	mother.
14

[¶20]		We	therefore	vacate	the	judgment	and	remand	this	action	for	the	

court	to hold	a	hearing that	will allow	the	parties	to augment	the	record	on	the	

matters	generated	by	the	plan	submitted	post-trial	by	Beaster	and	Carter.

B. Statutory	Priority	of	Guardians

[¶21]		Although	we	vacate	the	judgment	for	the	reason	discussed	above,	

in	the	interest	of	judicial	economy	we	proceed	to	address the	Zanis’	contention

that the	court	also	 erred	by	 failing	 to	give	them,	 as	 the	 adult	children	 of	 the	

incapacitated	person, priority	for	appointment	pursuant	to	section	5-311—an	

issue	 that the	 parties	 have	 fully	 briefed	 and	 argued. Clark	 v.	 Int’l	 Paper	 Co.,	

638 A.2d	65,	66	(Me.	1994).		This	calls	for	us	to	interpret	section	5-311, which	

we	do de	novo. See Thayer,	2016	ME	52, ¶	13,	136 A.3d 349.

[¶22]	 	 As	 discussed, see	 supra ¶	 11, absent	 some	 exceptions,	 “[a]ny	

competent	person . . . may	be	appointed	guardian	of	an	incapacitated	person.”		

18-A	M.R.S.	§	5-311(a).		Section	5-311	goes	on	to list	a	number	of groups	that	

are	 to	be	given	priority	when	 the	court	appoints a	guardian.		See	18-A	M.R.S.	

§ 5-311(b).	 	 One	 of	 those categories	 of	 persons is	 “[a]n	 adult	 child	 of	 the	

incapacitated	person,”	which	here	would	include	either	or	both	of	the	Zanis.7		

 7 The	three	categories of	people	who	are	statutorily	entitled	to higher	priority	than	an	adult	child	

comprise a	person	or	institution	nominated	in	writing	by	the	incapacitated	person,	the	spouse	of	the	

incapacitated	 person,	 and	 the	 domestic	 partner	 of	 the	 incapacitated	 person.	 18-A	 M.R.S.	

§ 5-311(b)(1)-(2-A) (2017).		None	of	these	categories	is pertinent	here.
15

See	18-A	M.R.S.	§ 5-311(b)(3).		The	plain	language	of	that	statute,	however,	also	

explicitly	provides that	the	court’s	application	of	any	of	these	priorities	remains	

“[s]ubject	 to	 a	 determination	 by	 the	 court	 of	 the	 best	 interests	 of	 the	

incapacitated	 person.”	 18-A	 M.R.S.	 § 5-311(b); see	 also Hunt,	Maine	 Probate	

Law §	5.311	at	263	(1999)	(“The	Maine	Legislature,	deviating	slightly	from	the	

Uniform	 Probate	 Code	 version	 of	 this	 section,	 specifically	 provided	 an	

overriding	priority	that	the	appointment	made	must	be	in	the	best	interest	of	

the	incapacitated	 person . . . .”).		The	 unambiguous	 terms	 of	section	5-311(b)	

undermine	the	Zanis’	assertion	to	the contrary	and	make	clear	that	the	court	

does not	err	as	a	matter	of	law	if it appoints	as	guardian someone	who	does	not	

have	statutory	priority	but	whose	appointment	will	be	in	 the	best	interest	of	

the	incapacitated	person.

III.		CONCLUSION

[¶23]	 	In	 this	 action,	 the	 court	 acted	 with	 compassion	 and	 sensitivity	

toward	the	mother,	consistent	with	the	goals	of	the	Probate	Code.		The	court

erred,	however,	by	not	allowing	additional	process	generated	by	Beaster	and	

Carter’s	 post-trial	 submission of	 a	 guardianship	 plan—a	 document	 that,	

pursuant	 to	 statute,	 should	 have	 been	 filed	 before	 the	 hearing,	 given	 that	

Beaster	and	Carter	presented	 themselves	as candidates	 for	appointment	and	
16

that	the	court	ultimately	appointed	them	as	co-guardians.		We	therefore	vacate	

the	judgment	and	remand	for	further	proceedings	consistent	with	this	opinion,	

see	supra	¶ 20.

The	entry	is:

Judgment	 vacated.	 Remanded	 for	 further	

proceedings consistent	with	this	opinion.

Sarah	 I.	 Gilbert,	 Esq. (orally),	 and	 Laura	 P.	 Shaw,	 Esq.,	 Camden	 Law	 LLP,	

Camden,	for	appellants	Michael	Zani	and	Peter	Zani

Stephen	W.	Hanscom,	Esq. (orally),	Hanscom,	Collins &	Hall,	P.A.,	Rockland,	for	

appellee	Department	of	Health	and	Human	Services

Philip	S.	Cohen,	 Esq. (orally),	Cohen,	Cohen	&	Hallowell,	P.C.,	Waldoboro,	 for	

appellee	Patricia	S.

Lincoln County	Probate	Court	docket	number	2017-223

FOR	CLERK	REFERENCE	ONLY