An Act To Implement Recommendations Concerning Temporary Guardian and Conservator Laws
Maine Legislature, Session 122, LD 2087
Committee: Judiciary
Amends: 18-A MRSA §5

Legislative Document 
No. 2087 
H.P.1475 
House of Representatives, March 21, 2006 
An Act To Implement Recommendations Concerning Temporary 
Guardian and Conservator Laws 
Reported by Representative SIMPSON of Auburn for the Joint Standing Committee on 
Judiciary pursuant to Resolve 2005, chapter 9l. 
Reference to the Committee on Judiciary suggested and ordered printed under Joint Rule 
218. 
Printed on recycled paper 
'77/~ 
/f7.1Jl(}£~( 
MILLICENT M. MacFARLAND 
Clerk 
Be it enacted by the People of the State of Maine as follows: 
Sec. I. 18-A MRSA §5-310-A, sub-§(a), as enacted by PL 1993, c. 
652, §3, is further amended to read: 
(a) 
When 
a 
person alleged to 
be 
incapacitated has 
no 
guardian and an emergency exists and no other person appears to 
have authority to act in the circumstances, 
upon appropriate 
petition, the court may exercise the power of a guardian or may 
enter 
an 
ex parte order 
appointing 
a 
temporary guardian te 
aeeFess-tRe-eme£~eRey in order to prevent serious, immediate and 
irreparable harm to the health or financial interests of the 
Person alleged to be incapacitated. 
A petition for temporary 
guardianship must be accompanied by an affidavit that sets forth 
the factual basis for the emergency and the specific powers 
requested by the proposed guardian. 
In the order and in the 
letters of temporary guardianship, the court shall specify the 
powers and duties of the temporary guardian, limiting the powers 
and duties to those necessary to address the emergency. 
(1) 
Except as otherwise provided in this section, prior to 
filing a petition under this subsection the petitioner shall 
provide notice orally or in writing to the following: 
( i) 
The 
allegedly 
incapacitated 
person 
and 
the 
person's 
spouse, 
parents, 
adult 
children 
and 
any 
domestic partner known to the court: 
(ii) 
Any 
person 
who 
is 
serving 
as 
guardian 
or 
conservator 
or 
who 
has 
care 
and 
custody 
of 
the 
allegedly incapacitated person: and 
(iii) 
In case 
no 
other person is notified unoer 
subparagraph (i), at least one of the closest adult 
relatives o·f the allegedly incapacitated person or, if 
none, an adUlt friend, if any can be found. 
(2) 
Notice under paragraph (1) must include the following 
information: 
(3) 
(i) 
The temporary authority that the petitioner is 
reguesting: 
(ii) 
The location and telephone number of the court in 
which the petition is being filed: and 
{iii} 
The name of the petitioner and the intended date 
of filing. 
The petitioner shall state in the affidavit reguired 
Page l-LR3211(I) 
ynder this subsection the date, time, location and method of 
providing the required notice under paragraph 
(1) and to 
whom 
the notice 
was 
provided. 
The 
court shall make 
a 
determination as to the adequacy of the method of providing 
notice and whether the petitioner complied with the notice 
requirements 
of 
this 
subsection. 
The 
requirements 
of 
section 5 309 do not apply to this section. 
(4) 
Notice is not required under this subsection in the 
following circumstances: 
(i) 
Giving 
notice 
will 
place 
the 
allegedly 
incapacitated person at substantial 
risk of 
abuse, 
neglect or exploitation: 
(ii) 
Notice, if provided, would not be effective: or 
(iii) 
Other good cause as determined by the court. 
(5) 
If, prior to filing the petition, the petitioner did 
~p..rovide notice as required under this subsection, the 
petitioner must. state in the affidavit the reasons for not 
providing notice. 
If notice has not been provided, 
the 
court shall make a determination as to the sufficiency of 
the 
reason 
for 
not 
providing 
notice 
before 
issuing 
a 
temporary order. 
Sec. 2. 18-A MRSA §5-310-A, sub-§(a-l), as amended by PL 1997, 
c. 35, §l, is further amended to read: 
(a-I) 
If the court takes action to exercise the powers of a 
guardian or to appoint a temporary guardian under subsection (a), 
then the court, within 2 days, excluding Saturdays, Sundays and 
legal holidays, of taking the action, shall appoint a visitor or 
a guardian ad litem to visit the allegedly incapacitated person 
and make a report to the court within 10 days of the appointment 
of the visitor or guardian ad litem. 
The visitor or guardian ad 
litem shall serve the allegedly incapacitated person with a copy 
of the order appointing the temporary guardian and shall explain 
the meaning and consequences of the appointment. 
The visitor or 
guardian ad litem shall inquire of the allegedly incapacitated 
person whether that person wishes to contest any aspect of the 
temporary guardianship or seek any limitation of the temporary 
guardian's powers. 
The visitor or guardian ad litem shall advise 
the allegedly incapacitated person of that person's right to 
contest the temporary guardianship by requesting a hearing under 
subsection 
(b) 
and 
shall 
advise 
the 
allegedly incapacitated 
person of that person's right to be represented in the proceeding 
by counsel of that person's own choice or by counsel appointed by 
the court. 
The visitor or guardian ad litem shall also interview 
the temporary guardian, except in cases where the court itself 
has taken action to exercise the powers of a temporary guardian. 
In the report to the court, the visitor or guardian ad litem 
shall inform the court that the allegedly incapacitated person 
has 
received 
a 
copy 
of 
the 
order 
appointing the 
temporary 
guardian. 
The visitor or guardian ad litem shall advise the 
court 
as--~e--wae~ae~ if circumstances indicate the allegedly 
incapacitated 
person 
wishes 
to 
contest 
any 
aspect 
of 
the 
temporary guardianship or seek a 
limitation of the temporary 
guardian's powers and whether the allegedly incapacitated person 
is already represented by counsel. 
The visitor or guardian ad 
litem shall also advise the court whether any issue exists with 
respect to whether the appointment of the temporary guardian is 
in the allegedly incapacitated person's best interest. 
Sec. 3. 18-A MRSA §5-408-A, sub-§(a), as enacted by PL 1993, c. 
652, §7, is amended to read: 
(a) 
When a person is alleged to be in need of protection 
and an emergency exists and no other person appears to have 
authority to act in the circumstances, upon appropriate petition, 
the court may exercise the power of a conservator or may enter an 
ex parte order appointing a temporary conservator in order to 
prevent serious, immediate and irreparable harm to the health or 
financial interests of the person alleged to be in need of 
protection and to preserve and apply the property of the person 
to be protected as may be required for that person's benefit or 
the benefit of that person's dependents. 
The petition must be 
accompanied by an affidavit that sets forth the factual basis for 
the emergency and the specific powers requested by the proposed 
conservator. 
In the order 
and 
in the letters of 
temporary 
conservatorship, the court shall specify the powers and duties of 
the temporary conservator, 
limiting the powers and duties to 
those necessary to address the emergency. 
(1) 
Except as otherwise provided in this section, prior to 
filing a petition under this subsection the petitioner shall 
provide notice orally or in writing to the following: 
(i) 
The person alleged to be in need of protection and 
the person's spouse, parents, adult children and any 
domestic partner known to the court; 
(ii) 
Any 
person 
who 
is 
serving 
as 
guardian 
or 
conservator or who has care and custody of the person 
alleged to be in need of protection; and 
liii) 
In 
case 
subparagraph (i), 
relatives of 
the 
no 
other 
person 
at least one of 
person alleged 
is notified under 
the closest adult 
to 
be 
in need of 
protection or, if none, an adult friend, if~ can ~ 
found. 
(2) 
Notice under paragraph (1) must include the following 
information: 
Li) 
The temporary authority that the petitioner is 
requesting; 
(ii) 
The location and telephone number of the court in 
which the petition is being filed; and 
(iii) 
The name of the petitioner and the intended date 
of filing. 
(3) 
The petitioner shall state in the affidavit required 
under this subsection the date, time, location and method of 
providing the required notice under paragraph (l) and to 
whom 
the notice 
was 
provided. 
The 
court shall 
make 
a 
g~texmination as~the ~g~acy of the method of providing 
notice and whether the petitioner complieg with the notice 
requirements 
of 
this 
subsection. 
The 
requirements 
of 
section 5-405 do not apply to this section. 
(4) 
Notice is not required under this subsection in the 
following circumstances: 
(i ) 
Giving notice will place the person alleged to be 
in neeg of protection at substantial risk of abuse, 
neglect or exploitation; 
(ii) 
Notice, if provided, would not be effective; or 
(iii) 
Other good cause as determined by the court. 
(5) 
If, prior to filing the petition, the petitioner did 
not provide notice as required under this subsection, the 
petitioner must state in the affidavit the reasons for not 
providing notice. 
If notice has not been provideg, 
the 
court shall make a determination as to the 
sufficiency~ 
the 
reason 
for 
not 
providing 
notice 
before 
issuing 
a 
temporary order. 
Sec. 4. lS-A MRSA §5-40S-A, sub-§(a-l), as amended by PL 1997, 
c. 35, §2, is further amended to read: 
(a-I) 
If the court takes action to exercise the powers of a 
conservator 
or 
to 
appoint 
a 
temporary 
conservator 
under 
subsection 
(a) , 
then 
the 
court, 
within 
days, 
excluding 
Saturdays, 
Sundays 
and legal holidays, 
of taking the action, 
shall appoint a visitor or a guardian ad litem to visit the 
protected person and make a report to the court within 10 days of 
the appointment of the visitor or guardian ad litem. 
The visitor 
or guardian ad litem shall serve the protected person with a copy 
of 
the order appointing the 
temporary conservator 
and shall 
explain the meaning and consequences of the appointment. 
The 
visitor or guardian ad litem shall inquire of the protected 
person whether that person wishes to contest any aspect of the 
temporary conservatorship or seek any limitation of the temporary 
conservator's powers. 
The visitor or guardian ad litem shall 
advise the protected person of that person's right to contest the 
temporary 
conservatorship 
by 
requesting 
an 
expedited hearing 
under subsection (b) and shall advise the protected person of 
that person's right to be represented by counsel of that person's 
own choice or by counsel appointed by the court. 
The visitor or 
guardian ad litem shall also interview the temporary conservator, 
except in cases where 
the court itself has 
taken action to 
exercise the powers of a temporary conservator. 
In the report to 
the court, the visitor or guardian ad litem shall inform the 
court that the protected person has received a copy of the order 
appointing the temporary conservator and shall advise the court 
as-~e-wRe~Re~ if circumstances indicate that the protected person 
wishes to contest any aspect of the temporary conservatorship or 
seek 
a 
limitation of the 
temporary conservator's 
powers 
and 
whether the protected person is already represented by counsel. 
The visitor or guardian ad litem shall also advise the court 
whether any issue exists with respect to whether the appointment 
of the temporary conservator is in the protected person's best 
interest. 
SUMMARY 
This bill is submitted by the Joint Standing Committee on 
JUdiciary pursuant to Resolve 2005, chapter 91. 
It is based on 
recommendations 
included 
in 
the 
report 
submitted 
by 
the 
Department of Health and Human Services prepared pursuant to the 
same 
resolve. 
The 
bill 
addresses 
notice 
and 
other 
issues 
involving the appointment of temporary guardians and conservators 
by the Probate Courts. 
This bill requires that before a person files a petition for 
a 
temporary 
guardianship 
or 
conservatorship, 
notice 
of 
the 
petition must be given to the allegedly incapacited person or the 
person alleged to be in need of protection as well as specific 
family members or others involved in the life of that person. 
The specifics of the notice are listed. 
Notice is not required 
in certain circumstances: 
if notice will place the person at 
substantial risk of abuse, 
neglect or exploitation; if notice 
would not be effective; and if other good cause is determined by 
the court. 
If the petitioner does not provide notice before 
filing the petition, the petitioner must include in the affidavit 
that fact and the reason notice was not provided. 
The court 
determines the sufficiency of the reason. 
This bill provides guidance to the Probate Courts in the 
determination of whether an emergency exists that necessitates 
the appointment of 
a 
temporary guardian or conservator. 
The 
court may make such an appointment in order to prevent serious, 
immediate 
and 
irreparable 
harm 
to 
the 
health 
or 
financial 
interests of the person. 
This bill changes the law regarding when the visitor or 
guardian ad litem shall advise the court that the appointment of 
the temporary guardian or conservator is being contested. 
The 
change is intended to broaden the language to allow the visitor 
or 
guardian 
ad 
litem 
to 
base 
the 
recommendation 
on 
other 
considerations or circumstances that may be present and observed.