An Act To Increase the Evidentiary Standard Required, To Establish a Guardianship
Maine Legislature, Session 124, LD 0944
Committee Amendment CA_A_H479 (House)
Amends: 18-A MRSA §5

COMMITTEE AMENDMENT "A " to H.P. 647, L.D. 944, Bill, "An Act To 
Increase the Evidentiary Standard Required, To Establish a Guardianship" 
Amend the bill by striking out everything after the enacting clause and before the 
summary and inserting the following: 
'Sec. 1. 18-A MRSA §5-304, sub-§(b), as amended by PL 2003, c. 323, §1, is 
further amended to read: 
(b). 
The court may appoint a guardian or coguardians as requested if it is satisfied 
the court finds by clear and convincing evidence that the person for whom a guardian is 
sought is incapacitated, and that the appointment is necessary or desirable as a means of 
providing continuing care and supervision of the person of the incapacitated person ana, 
if the allegedly incapacitated person has not attended the hearing, that an inquiry has been 
made as to whether that person '.vished to attend the hearing, Alternatively, the court may 
dismiss the proceeding or enter any other appropriate order. 
Sec. 2. 18-A MRSA §5-304, sub-§(b-l) is enacted to read: 
(b-l). If the allegedly incapacitated person files voluntary written consent to the 
appointment of a guardian with the court or appears in court and consents to the 
appointment, unless the court finds the consent suspect, the court may appoint a guardian 
or coguardians as requested upon a finding by a preponderance of the evidence that the 
person for whom. a guardian is sought is incapacitated and that the appointment is 
necessary or desirable as a means of providing continuing care and supervision of the 
incapacitated person. For the purposes of this subsection, voluntary written consent is 
valid only if the consent was obtained by a visitor, a guardian ad litem or ·an attorney 
representing the allegedly incapacitated person and the allegedly incapacitated person 
gave the consent outside the presence of the person or persons seeking guardianship. 
Sec. 3. 18-A MRS A §5-304, sub-§(b-2) is enacted to read: 
(b-2). If the allegedly incapacitated person has not attended the hearing, the court 
must determine if an inquiry has been made as to whether that person wished to attend the 
hearing. 
Page I - 124LR1264(02)-1 
COMMITTEE AMENDMENT 
~%. 
~ 
~. 
COMMITTEE AMENDMENT "A" to H.P. 647, L.D. 944 
Sec. 4. 18-A MRS A §5-304, sub-§(c), as enacted by PL 1985, c. 440, §§2 and 
13, is amended to read: 
(c). 
In its order, the court may make separate findings of fact and conclusions of 
law. If a party requests separate findings and conclusions, within 5 days of notice of the 
decision, the court shall make them. As an alternative to the appointment of a guardian 
under subsection Cb) or Cb-1), the court may dismiss the proceeding or enter any other 
appropriate order. 
Sec. 5. 18-A MRSA §5-307, as amended by PL 1979, c. 690, §19, is further 
amended to read: 
§5-307. Removal or resignation of guardian; termination of guardianship 
(a). 
On petition of the ward or any person interested in fits the ward's welfare, the 
cOllJi may remove a guardian and appoint a successor if in the best interests of the ward. 
On petition of the guardian, the court may accept his resignanation the guardian's 
resignation and make any other order wfl.i.efl that may be appropriate. 
(b). 
The ward or any 'personinterested in fits the ward's welfare may petition for an 
order that he the ward is no longer incapacitated, and for removal or resignation of the 
guardian. A request for this order may be made by informal letter to the court or judge 
and any person who knowingly interferes with transmission of this kind of request to the 
court or judge may be adjudged guilty of contempt of court. 
(c). 
Before removing a guardian, or accepting the resignation of a guardian, er 
ordering that a ward's incapacity has terminated, 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 of the present guardian and to the place where the 
ward resides or is detainep, to observe conditions and report in writing to the court. 
Cd). 
In an action by the ward, upon presentation by the petitioner of evidence 
establishing a prima facie case that the ward is not incapacitated or the appointment is no 
longer necessary or desirable as a means of providing continuing care and supervision of 
the ward, the court shall order the termination unless the respondent proves by clear and 
convincing evidence that the ward is incapacitated and guardianship is necessary or 
desirable as a means of providing continuing care and supervision of the ward. 
Sec. 6. 18-A MRSA §5-310-A, sub-§(c), as amended by PL 1995, c. 203, §3, is 
further amended to read: 
(c). 
At the expedited hearing, the court may render a judgment authorizing the 
temporary guardianship to continue for a period not to exceed 6 months from the date of 
entry of tlw ex parte order. The temporary guardianship terminates on the date specified 
in the order or, if no date is specified in the order, 6 months following the date of entry of 
the ex parte order or at any prior time if the court determines the circumstances leading to 
the order for temporary guardianship no longer exist or if it judgment has been entered 
following a hearing pursuant to section 5-303 has been entered with findings made 
pursuant to section 5-304. 
Sec. 7. 18-A MRSA §5-401, sub-§(2), as enacted by PL 1979, c. 540, § 1, is 
amended to read: 
COMMITTEE AMENDMENT 
,/ 
,) 
.'') 
,/ 
') 
. ) r
·' 
;\\ , 
~.~~' 
( ..... :; 
( 
'" ..... 
COMMITTEE AMENDMENT A "to H.P. 647, L.D. 944 
(2). 
Appointment of a conservator or other protective order may be made in relation 
to the estate and affairs of a person if the court .determines that (i) : by clear and 
convincing evidence that the person is unable to manag~ lHs the person's property and 
affairs effectively for reasons such as mental illness, mental deficiency, physical illness or 
disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign 
power, or disappearance; and EH1 by a preponderance of the evidence that the person has 
property whlefi that will be wasted or dissipated unless proper management is provided, 
or that funds are needed for the support, care and welfare of the person or those entitled to 
be supported by ffim the person and that protection is necessary or desirable to obtairi or 
provide funds. If the allegedly incapacitated person files voluntary written consent to the 
appointment of a conservator with the court or appears in court and consents to the 
appointment, unless the court finds the consent suspect, the court may appoint a 
conservator or coconservator as requested upon a finding by a preponderance of the 
evidence that the person is unable to manage the person's property and affairs effectively 
for reasons such as mental illness, mental deficiency, physical iIlness or disability, 
chronic .use of drugs, chronic intoxication, confinement, detention· by a foreign power or 
disappearance. For the purposes of this subsection, voluntary written consent is valid only 
if the consent was obtained by a visitor, a guardian ad litem or an attorney representing 
the allegedly incapacitated person and the allegedly incapacitated person gave the consent 
outside the presence of the person or persons seeking conservatorship. 
Sec. S. lS-A MRSA §5-40S-A, suh-§(c), as amended by PL 1995, c. 203, §7, is 
further amended to read: 
(c). 
At the expedited hearing, the court may render a judgment authorizing the 
temporary conservatorship to continue for a period not to exceed 6 months from the date 
of entry of the ex parte order. The temporary conservatorship terminates on the date 
specified in the order or, if no date is specified in the order, 6 months following the date 
of entry of the ex parte order, or at any prior time ·if the court determines the 
circumstances leading to the order for temporary conservatorship no longer exist or if a 
judgment has been entered following a hearing pursuant to section 5-407 haF; heen 
entererl with findings made pursuant to section 5-401. 
Sec. 9. lS-A MRS A §5-430, as . amended by PL 2007, c. 308, §2, is further 
amended to read: 
§5-430. Termination of proceeding 
The protected person, the protected person's personal representative, the conservator 
or any other interested person may petition the court to terminate the conservatorship. A 
protected person seeking termination is entitled to the same rights and procedures as in an 
original proceeding for a protective order. In an action to terminate a conservatorship 
brought by the protected person, upon presentation by the petitioner of evidence 
establishing a prima facie case that the person is able to manage the person's property and 
affairs, the court shall order the termination unless the respondent proves by clear and 
convincing evidence that the person is unable to manage the person's property and affairs 
effectively for reasons such as mental illness, mental deficiency, physical illness or 
disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign 
power or disappearance. The court, upon determining after notice and hearing that the 
minority or disabilitv of the protected person has ceased that a conservatorship is no 
COMMITTEE AMENDMENT 
, ~.~. 
'0' 
COMMITTEE AMENDMENT "A" to H.P. 647, L.D. 944 
longer necessary, shall tenninate the conservatorship upon approval of a final account. 
Upon termination, title to assets of the estate passes to the former protected person or to 
the former protected person's successors subject ,to provision in the order for expenses of 
administration or to conveyances from the conservator to the former protected person or 
the former protected person's successors, to evidence the transfer.' 
SUMMARY 
This amendment replaces the bill. 
This amendment clarifies that the clear and convincing standard applies only to 
nontemporary, adult guardianships and conservatorships in which the protected person 
does not consent to the guardianship or conservatorship. Consent is valid only if the 
alleged incapacitated person appears in court or provides voluntary written consent. It 
also clarifies that in conservatorship proceedings a court must find by clear and 
convincing evidence that the person is unable to manage the person's property or affairs 
but can find by a preponderance of the evidence that the person has property that needs 
protection. Finally, the amendment also G1arifies the procedure for the termination of 
guardianship and conservatorship by a protected person. These provisions provide that 
the protected person must present a prima facie case that guardianship or conservatorship 
is not necessary and then the burden shifts to the respondent to show by clear and 
convincing evidence that the conservatorship or guardianship is necessary. 
COMMITTEE AMENDMENT 
./ 
.) 
') 
"