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  • Writer's pictureTroyer & Good, PC

Case Study: You Need to File a Petition to Be Appointed Guardian

Some individuals are not legally able to handle their own affairs due to minority (under age 18) or incapacity. They may have been born incapacitated, or they may have become incapacitated because of an illness, accident, or decline in physical or mental capacities later in life. 

For such individuals, it may be necessary to establish a guardianship for their protection. A guardianship is a proceeding where an interested person or corporate entity petitions the Court to be appointed as guardian to handle the affairs of an incapacitated individual (known as the “protected person”). A person may be appointed as guardian over health care and living arrangements and/or financial affairs.

If you want to be appointed as someone's guardian, you should hire an attorney experienced in guardianship matters. Doing so will ensure you've complied with the proper legal requirements and help you fulfill your fiduciary duty. In a recent Court case, the Court erred in appointing individuals as guardians who did not properly follow the legal procedure.

Michael and Peter petitioned to be appointed co-guardians of their mother, Patricia. However, the Court instead appointed Karin and Nancy as guardians, even though neither person had petitioned to be appointed as guardians. Michael and Peter appealed the appointment, arguing that the Court should not have appointed Karin and Nancy since they did not comply with the statutory requirements applicable to a guardianship petition.

The Maine Supreme Judicial Court vacated the order and remanded (i.e. sent back to the lower Court). The Court ruled that the probate code allows a court to appoint as guardian only someone who has complied with the statutory filing requirements. It is important to comply with these requirements because it gives other interested parties an opportunity to be heard at trial. It also provides the Court with vital pretrial information related to the prospective guardian's comprehensive plan for the individual.

This case illustrates the importance of complying with statutory requirements related to guardianship proceedings. It's best to seek guidance from an attorney who focuses on guardianship matters. A guardianship attorney can help you determine if a guardianship is necessary and how to establish a guardianship with the Court. You can find more information on what is involved with serving as guardian on our blog.

Guardianship of Patricia S., 2019 ME 23 (Me. Feb. 12, 2019)


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