An Act To Increase the Evidentiary Standard Required To Establish a Guardianship
Maine Legislature, Session 124, LD 0944
Committee: judiciary
Sponsors: BRYANT, BEAULIEU, CASAVANT, HILL, KRUGER, NASS, WHEELER, HOBBINS, JACKSON

MAINE STATE LEGISLATURE 
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124th MAl E LEGISLATURE 
Legislative Document 
No. 944 
H.P.647 
House of Representatives, March 10,2009 
An Act To Increase the Evidentiary Standard Required To 
Establish a Guardianship 
Reference to the Committee on judiciary suggested and ordered printed. 
Presented by Representative BRYANT of Windham. 
Cosponsored by Senator BRYANT of Oxford and 
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MILLICENT M. MacFARLAND 
Clerk 
Representatives: BEAULIEU of Auburn, CASAVANT of Biddeford, HILL of York, 
KRUGER of Thomaston, NASS of Acton, WHEELER of Kittery, Senators: HOBBINS of 
York, JACKSON of Aroostook. 
Printed on recycled pLlpL'r 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. lS-A MRSA §5-106 is enacted to read: 
§5-106. Burden of proof 
For purposes of this Article, unless stated otherwise, court findings must be made 
upon clear and convincing evidence, with the following exceptions. 
(a). In an action to terminate a guardianship or conservatorship, pursuant to section 
5-307 or section 5-415, the petitioner bears the burden of proof by a preponderance of the 
evidence in support of termination and, if shown, the court shall order termination unless 
it is proven upon clear and convincing evidence that continuation of the guardianship is in 
the best interest of the ward. 
(b). Findings made pursuant to section 5-401, subsection (2) must be made upon a 
preponderance of the evidence. 
Sec. 2. lS-A MRSA §5-310-A, sub-§(b), as amended by PL 1995, c. 203, §3, is 
further amended to read: 
(b). 
If the court has exercised temporary guardianship powers or has issued an ex 
parte order under subsection (a), and if it comes to the court's attention, through the report 
of the visitor or guardian ad litem or otherwise, that the allegedly incapacitated person 
wishes to contest any aspect of the temporary guardianship or seek a limitation of the 
temporary guardian's powers, or that an issue exists with respect to whether the temporary 
guardianship is in the allegedly incapacitated person's best interest, the court shall hold an 
expedited hearing within 40 days of the entry of the ex parte order under subsection (a). 
The court may continue the expedited hearing if the petitioner and the attorney for the 
allegedly incapacitated person, or, if none, the visitor or the guardian ad litem, agree to 
such a continuance. The court may continue the hearing on its own motion due to 
circumstances beyond the control of the court and the parties, provided the hearing is held 
within 60 days of the signing of the ex parte order. If the appointment of a guardian is 
contested by the allegedly incapacitated person and the person is not already represented 
by an attorney, the court shall appoint counsel to represent the allegedly incapacitated 
person in the proceeding. The cost of the appointment of the visitor, guardian ad litem or 
attorney must be paid from the estate of the allegedly incapacitated person if the court is 
satisfied that sufficient funds are available. At the hearing, the petitioner has the burden 
of showing, by a preponderanoe of the evidenoe, that temporary guardianship continues to 
be necessary to provide the person with continuing care, protection or support pending a 
final hearing. Notice of the expedited hearing must be served as provided in section 
5-309, except that the notice must be given at least 5 days before the expedited hearing, 
and notice need not be served on any person whose address or present whereabouts is 
unknown and can not be ascertained by due diligence. The court may waive service of 
the expedited hearing on any person, other than the allegedly incapacitated person, upon a 
showing of good cause. 
Sec. 3. lS-A MRS A §5-40S-A, sub-§(b), as amended by PL 1995, c. 203, §7, is 
further amended to read: 
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(b). 
If the court has exercised temporary guardianship powers or has issued an ex 
parte order under subsection (a), and if it comes to the court's attention, through the report 
of the visitor or guardian ad litem or otherwise, that the protected person wishes to 
contest any aspect of the temporary conservatorship or to seek a limitation of the 
temporary conservator's powers, or if it appears that there is an issue with respect to 
whether the temporary conservatorship is in the protected person's best interest, the court 
shall hold an expedited hearing within 40 days of the signing of the ex parte order under 
subsection (a). The court may continue the expedited hearing if the petitioner and the 
attorney for the protected person, or, if none, the visitor or guardian ad litem, agree to 
such a continuance. The court may continue the hearing on its own motion due to 
circumstances beyond the control of the court and the parties, provided the hearing is held 
within 60 days of the signing of the ex parte order. If the appointment of a conservator is 
contested by the protected person and the person is not already represented by an 
attorney, the court shall appoint counsel to represent the person in the proceeding. The 
cost of the appointment of the visitor, guardian ad litem or attorney must be paid from the 
estate of the protected person if the court is satisfied that sufficient funds are available. 
At that hearing, the petitioner has the burden of showing, by a preponderanoe of the 
evidenoe, that temporary conservatorship continues to be necessary to protect and 
preserve the person's estate pending final hearing. Notice of the expedited hearing must 
he served as provided in section 5-405, except that the notice must be given at least 5 
days before the expedited hearing, and notice need not be served on any person whose 
address or present whereabouts is unknown and can not be ascertained by due diligence. 
The court may waive service of the expedited hearing on any person, other than the 
person to be protected, upon a showing of good cause. 
SUMMARY 
This bill amends the Probate Code to require clear and convincing evidence to 
support court findings under the Probate Code in guardianship and conservatorship 
proceedings. 
The 2 exceptions are that fmdings necessary to remove a guardian or 
conservator must be made upon a preponderance of the evidence and that a conservator 
may be appointed if the court determines upon a preponderance of the evidence that 
property will be wasted or dissipated unless proper management is provided or that funds 
are needed for support, care and welfare.