An Act To Clarify the Duties of Conservators
Maine Legislature, Session 121, LD 0840
Committee: Judiciary
Sponsors: FLETCHER, BERRY, CANAVAN, SHERMAN

Legislative Document 
No. 840 
H.P.617 
House of Representatives, February 20,2003 
An Act To Clarify the Duties of Conservators 
Reference to the Committee on Judiciary suggested and ordered printed. 
Presented by Representative FLETCHER of Winslow. 
/Jl~ 
/J1·7710£~ 
Mll...LICENT M. MacFARLAND 
Clerk 
Cosponsored by Representatives: BERRY of Belmont, CANAVAN of Waterville, SHERMAN 
of Hodgdon. 
Printed on recycled paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 18·A MRSA §5·418. sub·§(d) is enacted to read: 
(d) 
If a conservator fails to file an inventory or fails to 
include 
in the 
inventory property that the 
court 
determines 
should have been in the inventory, the court, in determining the 
value of the uninventoried or missing property, may" rely on the 
opinion of qualified appraisers or owners of similar property who 
have not seen the uninventoried property. 
Any doubt about the 
value of the uninventoried or missing property created by the 
absence of the property must be resolved in favor of the highest 
reasonable estimated offer. 
When an inventory has not been filed 
and interested persons allege under oath or affirmation that 
property should have been inventoried but is now missing, 
the 
conservator has the burden of proving that property was 
not 
required to be inventoried. 
Sec. 2. 18·A MRS A §5·429. sub·§§(e) and (f) are enacted to read: 
(e) 
Grounds for imposition of surcharge include, but are 
not limited to: 
(1) 
Failure to timely file an inventory as required by 
section 5-418; 
(2) 
Failure 
to 
timely file 
an 
account 
as 
required 
by 
section 5-419; 
(3) 
Unexplained loss of property from the estate; 
(4) 
Bad faith management of the estate; 
(5) 
Failure to maintain adequate insurance on estate assets; 
(6) 
Filing of false documents relating to the estate; 
(7) 
Taking an unreasonable fee for managing the estate; and 
(8) 
Inducing or attempting to induce the protected person 
to give the conservator special benefits. 
(f) 
A 
surcharge 
may 
include, 
without 
limitation, 
the 
following: 
(1) 
An amount determined adequate to make the estate whole 
for 
any 
losses 
of 
property 
or 
value 
or 
other 
losses 
including costs and reasonable attorney's fees incurred by 
the estate in any proceeding for surcharge; 
(2) Costs, including reasonable attorney's fees, incurred by 
any party whose activities bring to the court' s attention 
the need to impose a surcharge; and 
(3) 
Punitive and exemplary damages in an amount not to 
exceed 15'<-0 of the actual losses of the estate as described 
in paragraphs 
(1) and (2); except when the conservator is 
found to have acted in bad faith or with deceit or to be 
guilty of willful malfeasance, in which case, the punitive 
and exemplary damages may be imposed in an amount not to 
exceed 
times the losses described in paragraphs (1) and 
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SUMMARY 
This bill amends the Probate Code governing conservators of 
the estates of minors or disabled persons in the following manner. 
1. 
Current law requires the conservator to file with the 
court a complete inventory of the estate. 
This bill allows the 
court, 
in the event that an 
inventory is not filed or 
the 
inventory that is filed is incomplete, to rely on the opinion of 
an appraiser or owner of similar property, even if the person has 
not seen the missing property. 
The burden of proving that the 
property was not required to be inventoried is placed on the 
conservator. 
2. 
Current law allows a party to bring a proceeding for 
surcharge 
to 
determine 
liability 
of 
the 
conservator 
for 
malfeasance 
committed in the course of administration of the 
estate. 
This bill clarifies what constitutes malfeasance or 
improper management of the estate and allows the court to award 
damages and costs.