An Act To Improve the Authority of Guardians of Persons with Intellectual Disabilities or Autism
Maine Legislature, Session 127, LD 1216
Committee: Judiciary
Sponsors: FARNSWORTH, GATTINE, HAMANN, PETERSON, STEARNS, STUCKEY, TUCKER
Amends: 34-B MRSA §5604, 34-B MRSA §5604-A, 34-B MRSA §5605

Legislative Document 
No. 1216 
H.P. 834 
House of Representatives, April 2, 2015 
An Act To Improve the Authority of Guardians of Persons with 
Intellectual Disabilities or Autism 
Reference to the Committee on Judiciary suggested and ordered printed. 
ROBERT B. HUNT 
Clerk 
Presented by Representative FARNSWORTH of Portland. 
Cosponsored by Representatives: GATTINE of Westbrook, HAMANN of South Portland, 
PETERSON of Rumford, STEARNS of Guilford, STUCKEY of Portland, TUCKER of 
Brunswick. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  34-B MRSA §5604, 2nd ¶, as amended by PL 2011, c. 542, Pt. A, §127, 
is further amended to read: 
The rights and basic protections of a person with an intellectual disability or autism 
under section 5605, subsection 1 may not be restricted or waived by that person's 
guardian, except as permitted by rules adopted pursuant to this section or by order of the 
Probate Court. 
Sec. 2.  34-B MRSA §5604, last ¶, as enacted by PL 2011, c. 186, Pt. A, §17, is 
amended to read: 
The department has authority to adopt rules to implement this section except that the 
rules do not govern probate court proceedings.  Rules adopted pursuant to this paragraph 
are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A. 
Sec. 3.  34-B MRSA §5604, as amended by PL 2011, c. 657, Pt. EE, §7, is further 
amended by adding at the end 2 new paragraphs to read: 
Nothing in this section may be interpreted to limit the Probate Court's authority and 
jurisdiction to determine if an action taken or not taken by a guardian is within the 
permissible powers of the guardian, as limited by the rights established in section 5605, 
subsection 1. 
Nothing in this section may be interpreted to limit the Probate Court's authority and 
jurisdiction to expand the powers of a guardian to permit the restriction or waiver of the 
rights of a person with an intellectual disability or autism as outlined in section 5605, 
subsection 1. 
Sec. 4.  34-B MRSA §5604-A, sub-§5 is enacted to read: 
5.  Probate Court authority not limited.  Nothing in this section limits the Probate 
Court's authority pursuant to section 5604. 
Sec. 5.  34-B MRSA §5605, as amended by PL 2013, c. 500, §1, is repealed and 
the following enacted in its place: 
§5605.  Rights and basic protections of a person with an intellectual disability or 
autism 
1.  Rights and basic protections.  A person with an intellectual disability or autism 
is entitled to the following rights and basic protections.  These rights and protections may 
be waived or limited only in compliance with section 5604. 
A.  A person with an intellectual disability or autism is entitled to dignity, privacy 
and humane treatment. 
B.  A person with an intellectual disability or autism is entitled to religious freedom 
and practice without any restriction or forced infringement on that person's right to 
religious preference and practice. 
C.  A person with an intellectual disability or autism is entitled to private 
communications. 
(1)  A person with an intellectual disability or autism is entitled to receive, send 
and mail sealed, unopened correspondence. A person who is a provider may not 
delay, hold or censor any incoming or outgoing correspondence of a person with 
an intellectual disability or autism, nor may any such correspondence be opened 
without the consent of the person or the person's legal guardian. 
(2)  A person with an intellectual disability or autism is entitled to reasonable 
opportunities for telephone and Internet communication. 
(3)  A person with an intellectual disability or autism is entitled to reasonable 
visitations during reasonable hours. 
D.  A person with an intellectual disability or autism engaged in a work program that 
requires compliance with state and federal wage and hour laws is entitled to fair 
compensation for labor in compliance with regulations of the United States 
Department of Labor. 
E.  A person with an intellectual disability or autism may not be denied the right to 
vote. 
F.  A person with an intellectual disability or autism is entitled to the possession and 
use of that person's own clothing, personal effects and money, except when 
temporary custody of clothing or personal effects by a provider is necessary to protect 
the person or others from imminent injury. 
G.  A person with an intellectual disability or autism is entitled to nutritious food in 
adequate quantities, and meals may not be withheld for disciplinary reasons. 
H.  A person with an intellectual disability or autism is entitled to receive prompt and 
appropriate medical and dental treatment and care for physical and mental ailments 
and for the prevention of any illness or disability, and medical treatment must be 
consistent with the accepted standards of medical practice in the community, unless 
the religion of the person with an intellectual disability or autism so prohibits. 
(1)  A person with an intellectual disability or autism may not be subject to the 
use of medication as punishment, for the convenience of staff, as a substitute for 
habilitation or in unnecessary or excessive quantities. 
(2)  For a person with an intellectual disability or autism who resides in an 
institutional setting and who does not have a guardian or who has the State as a 
guardian: 
(a)  Medication may be administered only at the written order of a physician; 
(b)  Daily notation of medication received by a person with an intellectual 
disability or autism must be kept in the records of that person; 
(c)  Periodically, but no less frequently than every 6 months, the drug 
regimen of each person with an intellectual disability or autism must be 
reviewed by a physician or other appropriate monitoring body, consistent 
with appropriate standards of medical practice; and 
(d)  All prescriptions must have a termination date. 
(3)  Prior to instituting a plan of experimental medical treatment or carrying out 
any surgical procedure, express and informed consent must be obtained from the 
person with an intellectual disability or autism, unless the person has been found 
to be legally incompetent, in which case the person's guardian may consent. 
(4)  Before making a treatment or surgical decision, the person with an 
intellectual disability or autism must be given information, including, but not 
limited to, the nature and consequences of the procedure, the risks, benefits and 
purposes of the procedure and the availability of alternate procedures, unless the 
person has been found to be legally incompetent, in which case the person's 
guardian must be given such information. 
(5)  The person with an intellectual disability or autism or, if legally incompetent, 
that person's guardian may withdraw express and informed consent at any time, 
with or without cause, before treatment or surgery. 
(6)  Notwithstanding the absence of express and informed consent, emergency 
medical care or treatment may be provided to a person with an intellectual 
disability or autism who has been injured or who is suffering from an acute 
illness, disease or condition if delay in initiation of emergency medical care or 
treatment would endanger the health of the person. 
(7)  Notwithstanding the absence of express and informed consent, emergency 
surgical procedures may be provided to a person with an intellectual disability or 
autism who has been injured or who is suffering from an acute illness, disease or 
condition if delay in initiation of emergency surgery would substantially 
endanger the health of the person. 
I.  A person with an intellectual disability or autism may not be sterilized, except in 
accordance with chapter 7. 
J.  A person with an intellectual disability or autism is entitled to reasonable 
opportunities for behavioral and leisure time activities that include social interaction 
in the community, as set out in section 5610. 
K.  A person with an intellectual disability or autism is entitled to reasonable 
opportunities for appropriate physical exercise, including the reasonable use of 
available indoor and outdoor facilities and equipment. 
L.  A person with an intellectual disability or autism may not be subject to corporal 
punishment or any form of inhumane discipline or seclusion as a form of discipline. 
M.  A provider of residential services may establish house rules in a residential unit 
owned or operated by the provider.  A person with an intellectual disability or autism 
receiving services who resides in the residential unit is entitled to participate, as 
appropriate, in the formulation of the house rules.  A house rule must be uniformly 
applied to all residents of the residential unit where the rules apply.  A copy of the 
house rules must be posted in a residential unit where the rules apply and a copy of 
the rules must be given to all residents who receive services and, if any resident is 
under guardianship, to the guardian of the resident receiving services. 
N.  A person with an intellectual disability or autism who is not a patient in a 
psychiatric unit of an acute hospital or a psychiatric hospital as defined in section 
3801, subsection 7-B is entitled to behavior modification and management and 
supports that comply with the following. 
(1)  A person with an intellectual disability or autism may not be subjected to a 
behavior modification or behavior management program to eliminate dangerous 
or maladaptive behavior without first being assessed by a physician to determine 
if the proposed program is medically contraindicated and that the dangerous or 
maladaptive behavior could not be better treated medically. 
(2)  Support programs may contain both behavior modification and behavior 
management components. 
(3)  The following practices are prohibited as elements of behavior modification 
or behavior management programs: 
(a)  Seclusion; 
(b)  Corporal punishment; 
(c)  Actions or language intended to humble, dehumanize or degrade the 
person; 
(d)  Restraints that do not conform to rules adopted pursuant to this section; 
(e)  Totally enclosed cribs or beds; and 
(f)  Painful stimuli. 
(4)  Behavior modification and behavior management programs may be used 
only to correct behavior more harmful to the person than the behavior 
modification and behavior management program. 
(5)  If the State is the person's guardian or if no guardian has been appointed for 
the person, then behavior modification and behavior management may be used 
only: 
(a)  On the recommendation of the person's personal planning team; 
(b)  For an adult 18 years of age or older, with the approval, following a case-
by-case review, of a review team composed of a representative from the 
department, a representative from the advocacy agency designated pursuant 
to Title 5, section 19502 and a representative designated by the Maine 
Developmental Services Oversight and Advisory Board. The advocacy 
agency representative serves as a nonvoting member of the review team and 
shall be present to advocate on behalf of the person. The department shall 
provide sufficient advance notice of all scheduled review team meetings to 
the advocacy agency and provide the advocacy agency with any plans for 
which approval is sought along with any supporting documentation; and 
(c)  For a child under 18 years of age, with the approval, following a case-by-
case review, of a review team composed of a representative from the 
advocacy agency designated pursuant to Title 5, section 19502, a team leader 
of the department's children's services division and the children's services 
medical director or the director's designee.  The advocacy agency 
representative serves as a nonvoting member of the review team and shall be 
present to advocate on behalf of the person.  The department shall provide 
sufficient advance notice of all scheduled review team meetings to the 
advocacy agency and provide the advocacy agency with any plans for which 
approval is sought along with any supporting documentation.  Until rules are 
adopted by the department to govern behavioral treatment reviews for 
children, the team may not approve techniques any more aversive or intrusive 
than are permitted in rules adopted by the Secretary of the United States 
Department of Health and Human Services regarding treatment of children 
and youth in nonmedical community-based facilities funded under the 
Medicaid program. 
2.  Restraints.  A person with an intellectual disability or autism is entitled to the 
following basic rights and protections.  These rights may be waived or limited only in 
compliance with department rules.  The Probate Court may not limit or waive these rights 
even if a guardian has been appointed. 
A person with an intellectual disability or autism is entitled to be free from restraint 
unless: 
A.  The restraint is a short-term step to protect the person from imminent injury to 
that person or others; or 
B.  The restraint has been approved as a behavior management program in 
accordance with this section. 
A restraint may not be used as punishment, for the convenience of the staff or a guardian 
or as a substitute for habilitative services.  A restraint may impose only the least possible 
restriction consistent with its purpose and must be removed as soon as the threat of 
imminent injury ends.  A restraint may not cause physical injury to the person receiving 
habilitative services and must be designed to allow the greatest possible comfort and 
safety. 
Daily records of the use of restraints pursuant to paragraph A must be kept, which may be 
accomplished by meeting reportable event requirements. 
Daily records of the use of restraints pursuant to paragraph B must be kept, and a 
summary of the daily records pertaining to the person must be made available for review 
by the person's planning team, as defined in section 5461, subsection 8-C, on a schedule 
determined by the team.  The review by the personal planning team may occur no less 
frequently than quarterly.  The summary of the daily records must state the type of 
restraint used, the duration of the use and the reasons for the use.  A monthly summary of 
all daily records pertaining to all uses of restraints must be relayed to the advocacy 
agency designated pursuant to Title 5, section 19502. 
3.  Reimbursement provided.  Notwithstanding any other provision of law, the 
department shall provide reimbursement within available resources for durable medical 
equipment that provides a safe sleeping environment for persons with intellectual 
disabilities or autism under 16 years of age if: 
A.  The durable medical equipment is necessary to correct or ameliorate a behavioral 
health condition; 
B.  The durable medical equipment is the least restrictive alternative for the treatment 
of the behavioral health condition; 
C.  The durable medical equipment is approved on a case-by-case basis by a review 
team composed of the same representatives as the team conducting children's 
behavioral treatment reviews under subsection 1, paragraph N, subparagraph (5), 
division (c); and 
D.  The department determines that the durable medical equipment is cost-effective in 
comparison to the provision of other covered services or equipment that can 
sufficiently correct or ameliorate the behavioral health condition. 
4.  Records.  All records of persons with intellectual disabilities or autism receiving 
services must remain confidential as provided in section 1207. 
A.  A person with an intellectual disability or autism or, if the person is incompetent, 
a parent or guardian is entitled to have access to the records upon request. 
B.  The commissioner is entitled to have access to the records of a provider if 
necessary to carry out the statutory functions of the commissioner's office. 
5.  Therapeutic devices or interventions.  Therapeutic devices or interventions must 
be prescriptively designed by a qualified professional and applied with concern for 
principles of good body alignment and circulation and allowance for change of position. 
6.  Safety devices and practices.  A safety device or practice must be prescribed by a 
physician.  A safety device must be designed and applied with concern for principles of 
good body alignment and circulation and allowance for change of position. 
7.  Rules.  The department may adopt rules as necessary to implement the provisions 
of subsections 2 to 6.  Rules adopted pursuant to this subsection are routine technical 
rules as defined in Title 5, chapter 375, subchapter 2-A. 
SUMMARY 
This bill addresses several ambiguities with regard to the powers of guardians of 
persons with intellectual disabilities or autism. 
Currently, the Probate Code provides no clear restrictions on how far the court may 
expand the guardian's powers.  This bill resolves the ambiguity by clearly allowing 
probate courts to continue to use the broad powers granted by the guardianship statute.  It 
also provides a 2nd avenue through which a right may be waived or restricted.  This is 
consistent with the historical role of the probate court in administering guardianships. 
This bill also clarifies the rights of persons with intellectual disabilities or autism, as 
well as provides that, although the Department of Health and Human Services has 
authority to oversee certain types of behavioral interventions and related actions, that 
authority may not be used to limit the authority of guardians.