An Act To Establish Duties for Persons Who Hold Durable Powers of Attorney or Act as Responsible Parties for Residents of Long-term Care Facilities
Maine Legislature, Session 122, LD 1179
Committee: judiciary
Sponsors: MARTIN, MAYO, ROSEN, ROTUNDO, CRA YEN, FISCHER, MILLS, PINGREE
Amends: 18-A MRSA §5, 22 MRSA §1826

Legislative Document 
No. 1179 
S.P.407 
In Senate, March 8, 2005 
An Act To Establish Duties for Persons Who Hold Durable Powers 
of Attorney or Act as Responsible Parties for Residents of Long-
term Care Facilities 
Reference to the Committee on judiciary suggested and ordered printed. 
Presented by Senator MARTIN of Aroostook. 
JOY J. O'BRIEN 
Secretary of the Senate 
Cosponsored by Senators: MAYO of Sag ada hoc, ROSEN of Hancock, ROTUNDO of 
Androscoggin, Representatives: CRA YEN of Lewiston, FISCHER of Presque Isle, MILLS of 
Fannington, PINGREE of North Haven. 
Printed on recycled paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. I. 18-A MRSA §5-510 is enacted to read: 
§5-5l0. 
Duties owed by persons who hold durable powers of 
attorney or act as responsible parties for residents 
of long-term Care facilities 
(a) 
As used in this section, unless the context otherwise 
indicates, the following terms have the following meanings. 
(1) 
"Agent" 
means 
an individual 
who 
holds 
a 
power 
of 
attorney or 
otherwise 
acts 
as 
a 
responsible 
party 
for 
payment of financial obligations of 
and on behalf of 
a 
principal. 
(2) 
"Long-term care facility" means a nursing facility or 
unit licensed pursuant to Title 
22, 
chapter 
or 
an 
assisted living facility or program or a residential care 
facility licensed pursuant to Title 22, chapter 1663 or 1664. 
(3) 
"Principal" 
means 
a 
resident 
of 
a 
long-term 
care 
facility. 
(4) 
"Principal's 
resources" 
includes 
assets, 
income, 
pensions, 
cash 
benefits, 
insurance 
proceeds 
and 
other 
resources available or belonging to the principal. 
(b) 
An agent is subject to the duties, obligations and 
procedures set forth in this section. 
J 2 
(c) 
In exercising a power of attorney or otherwise acting 
as a responsible party for payment of financial obligations of 
and on behalf of a principal, an agent is under a fiduciary duty 
to observe the standards observed by a prudent person dealing 
with the property of another. 
The 
agent may 
not engage in 
self-dealing that is contrary to the interests of the principal. 
(d) 
If a principal may be eligible for coverage of health 
care expenses by the Medicare and MaineCare programs or any other 
federal 
and state public health insurance program, 
the agent 
shall promptly apply for 
coverage and shall 
comply with the 
reguirements 
governing 
these 
programs. 
If 
the 
principal 
is 
covered 
by 
any 
private 
health 
insurance 
or 
long-term 
care 
insurance that provides benefits for the care provided by the 
long term care facility, the agent shall take appropriate action 
to claim these benefits. 
Except for any exclusions or allowances 
provided for under a public health insurance program, the agent 
shall apply the principal's resources to make timely payment to 
Page l-LR1l22(1) 
the 
long term 
care 
facility 
for 
services 
rendered 
to 
the 
pr incipal. 
(e) 
If there is reasonable cause to believe that an agent 
has breached fiduci!3-ry duty as set forth in subsection (c), the 
Department of Health 
and 
Human Services, 
the 
long-term care 
ombudsman under Title 22, chapter 1453 or the affected long-term 
care 
facility 
may 
file 
a 
petition 
in 
Probate 
Court. 
The 
petitioner may request the court to: 
il) 
Determine whether the ~nt's acts or omissions are in 
breach of the fiduciary duty owed to the principal: 
~l 
CompeL.tJJ~_.~g_e_:I.l,.1: ____ t9 submit an accounting or report of 
any actions and omissions on behalf of the principal: 
(3) 
Seek restitution from the agent of any misappropriated 
resources of the principal: 
(4) 
Terminate the power of attorney; or 
(5) 
Take other action appropriate to the circumstances. 
The court shall hold an expedited hearing within 30 days of the 
filing of the petition, or within a shorter period of time, for 
good cause shown in any matter that requires a timely decision 
affecting health care or to forestall the misappropriation of the 
principal's resources. 
The court may make orders and decrees and 
~~ke other 
actions 
that 
are 
necessary or 
proper 
in making 
determinations on matters presented by a petition filed under 
this subsection. 
In any transfer of the principal's resources to 
<2 
the agent or any person designated by the agent occurring after 
the date of admission to a long-term care facility and made for 
less than full consideration when the transfer is not authorized 
under a gift provision in the durable power of attorney, it is 
presumed that the transfer 
was 
not 
a 
gift. 
The 
agent 
may 
overcome the presumption if the agent proves by a preponderance 
of the evidence that the transfer was authorized and was not the 
result 
of 
fraud, 
undue 
influence, 
misrepresentation 
or 
self-dealing. 
(f) 
A cour~fter hearing pursuant to subsection (e), may 
terminate 
or 
revoke 
the 
power 
of attorney or 
terminate 
the 
agent's functioning as responsible party for 
a principal upon 
determination that: 
ilL 
_____ :rtl.-e~g.!ill..Ll1Q§-l;>~each~t.h~___.9g-ent' s fiduciary duty to 
the principal or engaged in self-dealing; 
(2) 
At the time of the determj.nation, the principal lacks 
the capacity to give or revoke a power of attorney; or 
(3) 
The termination of the power of attorney is in the best 
interest of the principal. 
If the power of attorney is revoked or terminated by the court, 
the petitioner may 
reguest that the principal or 
the 
court 
appoint a suitable person to serve as substitute agent under a 
new power of attorney if the principal is competent but unable to 
manage assets. 
If the principal is incompetent and there is no 
suitable 
pr_ivate 
person 
available 
and 
willing 
to 
assume 
responsibilities for asset management, the petition may seek a 
public conservator in Probate Court pursuant to Part 6. 
(g) 
If a court determines that an agent has breached the 
~gent's fiduciary d~ties, misa~priated a principal's resources 
or 
engaged 
in 
self-dealing, 
the 
court 
shall 
order 
prompt 
restitution to 
the principal 
and, 
when 
appropriate, 
to 
the 
long-term care facility 
from 
the agent's personal assets if 
necessary. 
In 
such 
a 
case, 
or if the 
agent fails without 
reasonable cause or justification to submit an accounting or 
report as reguired by the court under subsection (e), the court 
may order the agent to pay reasonable attorney's fees and costs 
to the petitioner. 
The court may enter orders and take other 
action as appropriate to the circumstances. 
(h) 
The duties of 
an agent under this section and any 
related cause of action survive the death of the principal. 
The 
cause of action for breach of fiduciary duty or self-dealing is 
against the agent individually. 
The long-term care facility may 
also file a 
claim for any uncompensated services against the 
principal's estate following the principal's death. 
Sec. 2. 22 MRSA §1826. sub-§2. 1TI. as enacted by PL 1985, c. 
291, §1, is amended to read: 
I. 
No contract or agreement may contain a provision wRieR 
that provides for the payment of 
a~~e~neys~ attorney's fees 
or any other cost of collecting payments from the residentL 
~t that attorney's fees 
and costs 
may 
be 
collected 
against any agent under a power of attorney who breaches the 
agent's fiduciary duty as set forth in Title 18-A, section 
5-510. 
SUMMARY 
This bill establishes duties on the part of persons who hold 
durable powers of attorney or act as responsible parties for 
residents of long-term care 
for enforcing those duties. 
attorney's fees 
and costs 
established by this bill. 
facilities and provides mechanisms 
The bill also permits collection of 
from persons who breach the duties