In re Patricia S.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 23
Docket: Lin-18-38
Argued: October 11, 2018
Decided: February 12, 2019

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

GUARDIANSHIP OF PATRICIA S.

HJELM, J.

[¶1] Michael Zani and Peter Zani appeal from a judgment issued by the

Lincoln County Probate Court (Avantaggio, J.) denying their petition to be

appointed co-guardians of their mother, Patricia S., who is an incapacitated

adult, and instead appointing Karin Beaster and Nancy Carter as co-guardians

even though Beaster and Carter had not filed petitions to be appointed. The

Zanis contend that the court erred by (1) appointing Beaster and Carter when

they had not complied with the statutory requirements applicable to a

guardianship petition, see 18-A M.R.S. § 5-303(a) (2017);1 (2) not giving the

Zanis priority for appointment as guardians pursuant to 18-A M.R.S. § 5-311(b)

(2017); and (3) determining that appointment of Beaster and Carter as

co-guardians is in the mother’s best interest. We vacate the judgment and

1 Effective July 1, 2019, the current Probate Code found in Title 18-A will be repealed in its entirety

and replaced with a new Probate Code to be codified in Title 18-C. See P.L. 2017, ch. 402. All citations
in this opinion are to the Code currently in effect.
2

remand for further proceedings because Beaster and Carter had not fulfilled the

pretrial filing requirements of section 5-303. In the interest of judicial

economy, we also address the Zanis’ claim of statutory priority.

I. BACKGROUND

[¶2] The following facts are set out in the procedural record and in the

court’s findings, which were issued after a testimonial hearing and are

supported by competent record evidence. See Oliver v. E. Me. Med. Ctr.,

2018 ME 123, ¶ 2, 193 A.3d 157.

[¶3] As all parties agree, the Zanis’ mother—in significant part because

of the complexity of care she needs—is incapacitated to a degree that supports

the appointment of a guardian. 18-A M.R.S. § 5-101(1), (2) (2017). The Zanis

both reside in California. Although they are “accomplished and competent

professionals who are concerned for their mother’s best interests,” they have

been largely estranged from their mother for a significant period. Since 1979,

Michael has only had infrequent contact with his mother, and there was a

twelve-year period when they had no contact at all. Michael has organized and

overseen the care provided to his mother, but his phone conversations with his

mother are difficult and often end with the mother becoming upset and

stressed to the point that she requires medication. Peter’s contact with his
 3

mother has been very limited—he last saw his mother in 2010, and before that,

in 1991—and she has told him “not to come” to see her. Peter’s involvement in

his mother’s care has been limited to talking with Michael about it.

[¶4] The Zanis vetted and hired Beaster and Carter to assist the mother.

Beaster has a degree in geriatric social work, is a crisis responder, and has been

involved in hospice care and private duty care for approximately fifteen years.

She has been “an integral part” of the team caring for the mother since March

of 2017, and, among other things, oversees the administration of all

medications prescribed to the mother. Carter has worked for the mother for

more than five years and provides hands-on, in-home care. Carter is

responsible for scheduling the staff that provides the mother with

around-the-clock care. Beaster and Carter have nearly daily contact with the

mother, and each has spent more time with her in recent months than both of

the Zanis have in years. The mother considers both Beaster and Carter to be

her friends—they know her well, and she trusts them. The mother has been

consistently and increasingly opposed to the appointment of her sons to be her

guardians since October of 2017, which was two months before the hearing was

held.
4

[¶5] In August of 2017, the Department of Health and Human Services

filed a petition seeking the appointment of the mother’s adult stepson as her

guardian and conservator. See 18-A M.R.S. § 5-303(a). In support of the

petition, the Department submitted reports prepared by a primary care

provider and a psychiatrist, who had each examined the mother and concluded

that she was incapacitated. On the Department’s request for the court to

appoint a temporary guardian, the court held an expedited hearing and

appointed the stepson as temporary guardian. See 18-A M.R.S. § 5-310-A(a)

(2017). The court also appointed a guardian ad litem for the mother. See

18-A M.R.S. § 5-303(b) (2017).

[¶6] The Zanis opposed the Department’s petition and filed a

cross-petition to be appointed permanent co-guardians. Prior to the hearing

on the guardianship petitions filed by the Department and by the Zanis, the

Department’s nomination of the mother’s stepson as guardian was withdrawn,

leaving only the Zanis’ petition to be adjudicated.2 Although the Department

subsequently took the position that Beaster and Carter should be appointed

2 Also prior to the hearing, the parties stipulated to the appointment of a third person as the

mother’s conservator. 18-A M.R.S. § 5-410(a) (2017). The conservatorship is not at issue in this
appeal.
 5

co-guardians, the Department did not file a new or amended petition

nominating them, and Beaster and Carter did not file petitions on their own.

[¶7] In December of 2017, the court held a contested full-day hearing,

where the mother, the Zanis, and the Department were represented by counsel.

The court heard testimony from Michael Zani, Peter Zani, the mother, Beaster,

Carter, and the GAL. During her testimony, the mother confirmed that she

wanted Beaster and Carter to be appointed her co-guardians, and Beaster and

Carter both testified that they were willing to be appointed to that position.

[¶8] At the conclusion of the hearing, the court directed the mother’s

attorney to file acceptances of appointment and a guardianship plan on behalf

of Beaster and Carter, see 18-A M.R.S. §§ 5-303(a), 5-305 (2017), and they did

so two weeks later. The Zanis objected and moved to strike the filings—a

motion the court later denied—and in their written summation they objected

to the appointment of Beaster and Carter on the merits.

[¶9] In early January of 2018, the court entered a judgment appointing

Beaster and Carter as the mother’s co-guardians after determining that their

appointment was in the mother’s best interest because they are “trusted and

qualified” and had been chosen by the Zanis themselves to serve as the mother’s

caregivers. The court also concluded, for several reasons it articulated in both
6

its judgment and an order on the Zanis’ motion for further findings, see

18-A M.R.S. § 5-304(c) (2017), that it was not in the mother’s best interest to

have Michael Zani or Peter Zani, either individually or jointly, appointed her

guardian or co-guardians. The Zanis filed a timely appeal to us. See 18-A M.R.S.

§ 1-308 (2017); M.R. App. P. 2B(c)(2)(B).

II. DISCUSSION

[¶10] The Zanis argue on appeal that the court erred by (1) appointing

Beaster and Carter as co-guardians because they had not filed nominating

petitions, guardianship plans, or acceptances prior to the hearing; (2) not giving

the Zanis, as the mother’s adult children, priority for appointment; and

(3) determining that the appointment of Beaster and Carter is in the mother’s

best interest. For the reasons discussed below, we vacate the judgment based

on the first of these challenges—the procedural deficiencies affecting the

court’s consideration of Beaster and Carter as possible guardians. In order to

promote judicial economy and efficiency in the ultimate resolution of this

matter, we also address the Zanis’ assertion that they are entitled to statutory

priority over Beaster and Carter.3

3 Because additional evidence may be presented to the court on remand, we do not address the

sufficiency of the present record to support the court’s best-interest determination.
 7

A. Guardianship Petition Procedure

[¶11] The central question presented on this appeal is whether, during

the course of a proceeding on a petition for appointment, the court is statutorily

authorized to appoint as guardian a third party who has not satisfied the

requirements that the petitioning party him or herself must satisfy. This calls

for us to construe 18-A M.R.S. § 5-311(a) (2017), which states in pertinent part

that “[a]ny competent person or a suitable institution may be appointed

guardian of an incapacitated person.” The court concluded that the breadth of

the phrase “[a]ny competent person” means that the person who is ultimately

appointed to be guardian need not have filed the material required of the

original petitioner. We disagree.

[¶12] “Statutory construction is a question of law that we consider

de novo.” Guardianship of Thayer, 2016 ME 52, ¶ 13, 136 A.3d 349. Our “single

goal” in interpreting a statute is to give effect to legislative intent. Dickau v. Vt.

Mut. Ins. Co., 2014 ME 158, ¶ 19, 107 A.3d 621. To determine legislative intent,

we first determine if the statute’s language is “plain and unambiguous.” Id. If

so, we construe it according to that plain and unambiguous meaning. State v.

Mourino, 2014 ME 131, ¶ 8, 104 A.3d 893. If, however, “the statutory language

is ambiguous, meaning that it is reasonably susceptible to multiple
8

interpretations, or is silent on a particular point, we will then consider other

indicia of legislative intent including the purpose of the statute.” Davis v.

McGuire, 2018 ME 72, ¶ 17, 186 A.3d 837 (quotation marks omitted); see also

Thayer, 2016 ME 52, ¶ 13, 136 A.3d 349 (stating that we must “consider the

provision at issue in light of the entire relevant statutory scheme in order to

arrive at a harmonious result” (quotation marks omitted)); Adoption of

Tobias D., 2012 ME 45, ¶ 15, 40 A.3d 990. We construe the Probate Code

liberally so as to promote its underlying purposes and policies, which include,

among others, simplifying and clarifying the law that affects the affairs of

incapacitated persons. See 18-A M.R.S. § 1-102(a), (b)(1) (2017).

[¶13] The reference in section 5-311(a) to “[a]ny competent person” is

ambiguous. Taken in isolation, that phrase could be read—as the court did

here—to include even a person who has not filed a petition and the

accompanying material otherwise required to be appointed guardian. When

viewed in the context of the full statutory framework governing the process by

which guardians are appointed, however, the statute may also be construed

more restrictively so as to limit those persons or institutions the court can

appoint to those who have complied with the statutory pre-adjudicatory

process imposed on formal guardian applicants. Based on the procedural
 9

predicates to the appointment of a guardian, we conclude that the Probate Code

authorizes the court to appoint as guardian only a person who has complied

with the statutory filing requirements in a way that allows other interested

persons a meaningful opportunity to be heard at trial and that provides the

court with important pretrial information about the prospective guardian’s

comprehensive plan for the incapacitated person.

[¶14] We begin with the fundamental notion that the appointment of a

guardian affects the incapacitated person’s fundamental liberties. Oliver,

2018 ME 123, ¶ 28, 193 A.3d 157; see also Guardianship of Helen F., 2013 ME 18,

¶ 4, 60 A.3d 786. In recognition of that, the Probate Code prescribes a series of

procedural steps that operate to safeguard those fundamental liberty interests.

See 18-A M.R.S. § 5-303; Guardianship of Hughes, 1998 ME 186, ¶¶ 9, 13-14, 715

A.2d 919.

[¶15] For a guardianship to be established, “[t]he incapacitated person

or any person interested in his welfare may petition for a finding of incapacity

and appointment of a guardian.”4 18-A M.R.S. § 5-303(a). Unless the allegedly

incapacitated person is already represented by counsel, the court is required to

appoint “one or more of” a visitor, a GAL, or an attorney to represent her in the

4 “Petition” is defined as “a written request to the court for an order after notice.” 18-A M.R.S.

§ 1-201(31) (2017).
10

proceeding. 18-A M.R.S. § 5-303(b). Upon the filing of a petition, the Probate

Court must schedule a hearing on the issue of incapacity, id., and at least

fourteen days’ notice of the hearing is to be provided to the reportedly

incapacitated person and that person’s adult children, 18-A M.R.S. § 5-309(a),

(c) (2017).5

[¶16] The Probate Code also requires a prospective guardian to file a

guardianship plan and a series of reports relating to the condition of the

allegedly incapacitated person. As to the former, the statute provides:

The person nominated to serve as guardian shall file a plan which,
where relevant, shall include, but not be limited to, the type of
proposed living arrangement for the ward, how the ward’s
financial needs will be met, how the ward’s medical and other
remedial needs will be met, how the ward’s social needs will be met
and a plan for the ward’s continuing contact with relatives and
friends.

18-A M.R.S. § 5-303(a). Regarding the reports, the allegedly incapacitated

person must be examined by a physician or licensed psychologist, who must

then submit a written report to the court. 18-A M.R.S. § 5-303(b). Additionally,

an appointed visitor or GAL is required to interview both the allegedly

5 As a condition to the appointment, the nominated guardian is required to execute an acceptance,

by which the guardian submits to the court’s jurisdiction in any matter related to the guardianship.
18-A M.R.S. § 5-305 (2017). As we note above, see supra ¶ 8, this was one of the instruments that,
after the hearing was completed, the court directed Beaster and Carter to file.
 11

incapacitated person and the petitioner, and submit a written report to the

court. 18-A M.R.S. § 5-303(c) (2017). “Except as otherwise provided by law, all

reports and plans required by this section shall be submitted to the court, and

all parties of record, at least 10 days before any hearing on the petition.”

18-A M.R.S. § 5-303(d) (2017).

[¶17] These procedural requirements have two primary effects in

anticipation of the guardianship hearing conducted by the court. First, the

reports of the evaluations required by section 5-303 provide the participants

and the court with information about the circumstances and needs of the

allegedly incapacitated person. Second—and importantly here—the

comprehensive guardianship plan allows the participants and, ultimately, the

court to assess the adequacy of the prospective guardian’s proposals to meet

those reported needs. The overall effect of the pretrial guardianship process

therefore is to provide important information to the participants—including

the allegedly incapacitated person—and to the court, to allow an appropriate

and thorough consideration and adjudication of the substantial interests at

stake in a guardianship proceeding.

[¶18] Here, prior to the guardianship hearing, reports were filed by a

physician, a psychologist, and the GAL, thereby meeting those aspects of the
12

statutory process. The requirement of a guardianship plan was not satisfied,

however, because even though the court ultimately appointed Beaster and

Carter to serve as co-guardians, they had not submitted such a plan, much less

even a petition for the court to appoint them as guardians. See 18-A M.R.S.

§ 5-303(a). It appears that by the time the hearing was held, the Zanis were

aware that their mother opposed their petition to be appointed her

co-guardians.6 Further, the GAL did speak with Beaster and Carter in preparing

his report, and Beaster and Carter both testified at the hearing. Nonetheless,

Beaster and Carter had not filed a plan describing how they proposed to care

for the mother, meet the mother’s social needs, and address the other issues

that the Legislature requires a prospective guardian to articulate. Rather, the

statutorily mandated plan was not filed until the court directed Beaster and

Carter to do so after the hearing—too late for the Zanis to develop evidence or

otherwise respond to it in an evidentiary setting. 18-A M.R.S. § 5-309(a), (c).

[¶19] Each of the procedural requirements that may lead to the

appointment of a guardian promotes the overall purpose of guardianship

6 Beaster testified that in October—two months before the hearing—the mother had told her that

she did not want Michael Zani to be appointed as her guardian and instead wanted Beaster and Carter
to serve as guardians. She also testified that as late as several days before the hearing, the difficult
relationship between Michael Zani and the mother created such significant problems in her ability to
care for the mother that she had reservations about her willingness to be appointed.
 13

proceedings—providing “for the care of persons who are unable to care for

themselves,” Hunt, Maine Probate Law Part 3 at 252 (1999), and accounting for

the person’s best interest, 18-A M.R.S. § 5-311(b), while also maintaining

sensitivity to the person’s autonomy to the extent allowed by the person’s

circumstances, see Oliver, 2018 ME 123, ¶ 32, 193 A.3d 157 (noting that the

limiting language of 5-304(a) is directed to the court’s exercise of authority in

setting the terms of a guardianship in a way that does not interfere with an

individual’s autonomy); see also Guardianship of Collier, 653 A.2d 898, 902

(Me. 1995) (stating that the appointment of a full guardian “should not be done

without careful consideration of the prospective ward’s specific needs”). As a

central element of the legislatively prescribed process that can result in the

imposition of a guardianship, the prospective guardian must submit a plan of

care for the allegedly incapacitated person. See 18-A M.R.S. § 5-303(a). The

persons whom the court ultimately appointed co-guardians did not do that

here. As a result, the post hoc process used instead by the court to fill this

procedural void deprived the Zanis of a meaningful opportunity to be heard on

the merits of Beaster and Carter’s undocumented interest and willingness to be

appointed co-guardians and the nature of their plan of care for the mother.
14

[¶20] We therefore vacate the judgment and remand this action for the

court to hold a hearing that will allow the parties to augment the record on the

matters generated by the plan submitted post-trial by Beaster and Carter.

B. Statutory Priority of Guardians

[¶21] Although we vacate the judgment for the reason discussed above,

in the interest of judicial economy we proceed to address the Zanis’ contention

that the court also erred by failing to give them, as the adult children of the

incapacitated person, priority for appointment pursuant to section 5-311—an

issue that the parties have fully briefed and argued. Clark v. Int’l Paper Co.,

638 A.2d 65, 66 (Me. 1994). This calls for us to interpret section 5-311, which

we do de novo. See Thayer, 2016 ME 52, ¶ 13, 136 A.3d 349.

[¶22] As discussed, see supra ¶ 11, absent some exceptions, “[a]ny

competent person . . . may be appointed guardian of an incapacitated person.”

18-A M.R.S. § 5-311(a). Section 5-311 goes on to list a number of groups that

are to be given priority when the court appoints a guardian. See 18-A M.R.S.

§ 5-311(b). One of those categories of persons is “[a]n adult child of the

incapacitated person,” which here would include either or both of the Zanis.7

7 The three categories of people who are statutorily entitled to higher priority than an adult child

comprise a person or institution nominated in writing by the incapacitated person, the spouse of the
incapacitated person, and the domestic partner of the incapacitated person. 18-A M.R.S.
§ 5-311(b)(1)-(2-A) (2017). None of these categories is pertinent here.
 15

See 18-A M.R.S. § 5-311(b)(3). The plain language of that statute, however, also

explicitly provides that the court’s application of any of these priorities remains

“[s]ubject to a determination by the court of the best interests of the

incapacitated person.” 18-A M.R.S. § 5-311(b); see also Hunt, Maine Probate

Law § 5.311 at 263 (1999) (“The Maine Legislature, deviating slightly from the

Uniform Probate Code version of this section, specifically provided an

overriding priority that the appointment made must be in the best interest of

the incapacitated person . . . .”). The unambiguous terms of section 5-311(b)

undermine the Zanis’ assertion to the contrary and make clear that the court

does not err as a matter of law if it appoints as guardian someone who does not

have statutory priority but whose appointment will be in the best interest of

the incapacitated person.

III. CONCLUSION

[¶23] In this action, the court acted with compassion and sensitivity

toward the mother, consistent with the goals of the Probate Code. The court

erred, however, by not allowing additional process generated by Beaster and

Carter’s post-trial submission of a guardianship plan—a document that,

pursuant to statute, should have been filed before the hearing, given that

Beaster and Carter presented themselves as candidates for appointment and
16

that the court ultimately appointed them as co-guardians. We therefore vacate

the judgment and remand for further proceedings consistent with this opinion,

see supra ¶ 20.

The entry is:

Judgment vacated. Remanded for further
proceedings consistent with this opinion.

Sarah I. Gilbert, Esq. (orally), and Laura P. Shaw, Esq., Camden Law LLP,
Camden, for appellants Michael Zani and Peter Zani

Stephen W. Hanscom, Esq. (orally), Hanscom, Collins & Hall, P.A., Rockland, for
appellee Department of Health and Human Services

Philip S. Cohen, Esq. (orally), Cohen, Cohen & Hallowell, P.C., Waldoboro, for
appellee Patricia S.

Lincoln County Probate Court docket number 2017-223
FOR CLERK REFERENCE ONLY