Maine strengthens RTC in guardianship cases

Generally

There is a right to counsel for adults in plenary guardianship and conservatorship matters upon request or if the adult contests, at least for establishment, modification, removal, and termination.  There is no appointment in emergency guardianship and conservatorship proceedings.  Because the right to counsel does not extend to emergency matters, the right to counsel is classified as qualified.

Guardianship and conservatorship

Establishment

Respondents to plenary guardianship and conservatorship petitions have the right to counsel if:

A. Requested by the respondent;

B. Recommended by the visitor;

C. The court determines that the respondent needs representation; or

D. It comes to the court’s attention that the respondent wishes to contest any aspect of the proceeding or to seek any limitation on the proposed guardian’s powers.

Me. Rev. Stat. Ann. tit. 18-C, §§ 5-305(1) (as to guardianship petitions); 5-406(1) (as to conservatorships).  The attorney does serve in a client-directed role, as both the guardianship and conservatorship parts provide that the attorney shall:

A. Make reasonable efforts to ascertain the respondent’s wishes;

B. Advocate for the respondent’s wishes to the extent reasonably ascertainable; and

C. If the respondent’s wishes are not reasonably ascertainable, advocate for the result that is the least restrictive option in type, duration and scope, consistent with the respondent’s interests.

Me. Rev. Stat. Ann. tit. 18-C, §§ 5-305(2); 5-406(2).

A report by Disability Rights Maine found that despite this statute, 75% of respondents were not appointed counsel from 2019-2021, but that when respondents did have counsel, “the rate of appointment of a full guardianship dropped 20 percentage points, from 76% to only 56% [and]  33% of cases resulted in no guardianship at all, compared with 21% when there was no attorney.”  Additionally, in Adult Guardianship and Conservatorship of R, 2026 ME 43 (2026) the Supreme Judicial Court of Maine found that there is a right to effective assistance of counsel in these cases, citing In re Henry B., 2017 ME 72, ¶ 6, 159 A.3d 824, for the proposition that “where a state statute affords an individual . . . the right to counsel, the legislature could not have intended that counsel could be prejudicially ineffective” (quotation marks omitted)).  The Court opted to use the effectiveness standard articulated in Strickland v. Washington, 466 U.S. 668, 687-96 (1984), which is that “petitioner must show both (1) deficient performance by counsel and (2) resulting prejudice.”  The Court went on to outline the procedure for raising such a claim.  The decision was covered by the Portland Press Herald.

Removal, termination, and modification

An adult who seeks to remove their guardian or conservator and appoint a successor, or who seeks to terminate or modify the guardianship or conservatorship, is entitled to counsel “under the same conditions as [specified in sections 5-305 and 5-406].”  See Me. Rev. Stat. Ann. tit. 18-C, §§ 5-318(4) (guardianship removal); 5-430(4) (conservatorship removal); 5-319(7) (guardianship termination or modification); and 5-431(9) (conservatorship termination or modification).

As to attorney’s fees for a removal, termination, and modification matters, “The court shall award reasonable attorney’s fees to the attorney for the adult as provided in section 5-119.” Me. Rev. Stat. Ann. tit. 18-C, §§ 5-318(4); 5-430(4); 5-319(7); and 5-431(9).

Temporary substitute guardian or conservator

A court may appoint a temporary guardian or conervator, to serve “for a period not longer than 6 months” if a removal proceeding is pending or if “[t]he court finds an existing [guardian or conservator] is not effectively performing [their] duties and the welfare of the individual requires immediate action.” Me. Rev. Stat. Ann. tit. 18-C, § 5-124(1)-(2).

Although no separate right to counsel is provided for in this section, the right may attach in a pending removal proceeding, as discussed above, per Me. Rev. Stat. Ann. tit. 18-C, §§ 5-318(4) (guardianship removal); 5-430(4) (conservatorship removal).

Emergency guardianship and conservatorship

It appears that Maine does not provide the right to counsel in emergency guardianship and conservatorship proceedings. See Me. Rev. Stat. Ann. tit. 18-C, §§ 5-312 and 5-413.  The Comment to both sections provides, “Contrary to the Uniform Act, [the sections] do[ ] not provide for the automatic appointment of an attorney for the respondent.”

Other protective arrangements

Where a less restrictive alternative to guardianship or conservatorship would be appropriate, “other protective arrangements” may be sought. See §§ 5-502 and 5-503 (bases for protective arrangements instead of guardianship or conservatorship).

The right to counsel may attach in these matters per Me. Rev. Stat. Ann. tit. 18-C, § 5-507(1), which incorporates the same factors as Sections 5-305 and 5-406 (respondent requests counsel; visitor recommends counsel; court determines counsel is needed; or respondent contests).