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Guardianship of Hughes
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 186
Docket:	Ken-98-83
Argued:	June 11, 1998
Decided:	July 24, 1998

Panel:  WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and SAUFLEY, JJ.



GUARDIANSHIP OF MARYANNE HUGHES
DANA, J.

	[¶1]  Maryanne F. Hughes appeals from the judgment entered in the
Kennebec County Probate Court (Mitchell, J.) appointing the Department of
Human Services as her limited public guardian pursuant to 18-A M.R.S.A.
§§ 5-601 to 5-614 (1998).  Hughes contends the court's use of the
preponderance of the evidence standard to determine whether she is an
incapacitated person denied her due process of law, the court erred by
granting the guardian medical decision-making authority and by failing to
make findings of fact, and the evidence presented by the Department was
insufficient to establish that she is an incapacitated person.  We affirm in
part and vacate in part.
I.
	[¶2]  Maryanne Hughes was involuntarily committed to the Augusta
Mental Health Institute (AMHI) in September 1996 at the age of seventy-
eight.  Prior to the hospitalization, Hughes lived independently in the same
apartment in Waterville for over forty-three years.  She was discharged from
AMHI in December 1996 with a plan to return to her apartment building,
but to a different apartment unit because her former apartment had been
condemned.  Upon arriving at the building, Hughes entered her former
apartment and refused to leave.  Rescue workers escorted her from her
apartment, transported her to an emergency room, and she was eventually
readmitted to AMHI, where she presently resides.
	[¶3]  In June 1997 the Department of Human Services Bureau of Elder
and Adult Services (DHS) filed a petition in the Probate Court that requested
it be named full public guardian for Hughes and alleged that because of her
mental illness, Hughes was "unable to make responsible decisions regarding
all areas of decision making, including medical/psychiatric treatment,
placement and finances."  Hughes objected to the guardianship, and a
contested hearing was held in early October 1997.
	[¶4]  At the hearing, DHS called three witnesses: Ann LeBlanc, Ph.D., a
licensed psychologist and assistant superintendent at AMHI; Jane Wolf,
M.D., Hughes's treating psychiatrist at AMHI; and Alice Ladd, a DHS
caseworker.  Both LeBlanc and Wolf diagnosed Hughes as suffering from a
delusional disorder that interfered with her ability to make certain
decisions.  LeBlanc testified that, in her opinion, Hughes's illness affected
her overall decision-making capability.  Wolf expressed her opinion that
Hughes does not have the capacity to make responsible decisions with
respect to her psychiatric treatment or her living arrangements, but stated
she could not render an opinion on whether Hughes had capacity with
respect to medical or financial matters.
	[¶5]  Alice Ladd testified that she was called to Hughes's apartment in
December 1996 when Hughes refused to leave her condemned apartment. 
She reported that the apartment was filled with a great deal of clutter, that
there were newspapers and cardboard boxes piled high throughout the
apartment, and that she could barely see where the toilet was because of all
the things piled in the bathroom.
	[¶6]  Hughes moved for a judgment as a matter of law pursuant to M.R.
Civ. P. 50(d) at the close of DHS's case, arguing that a clear and convincing
standard of proof should be applicable to guardianship proceedings, and that
even if a preponderance of the evidence standard was applied, DHS had not
met their burden of presenting a prima facie case that she was
incapacitated.  The court ruled that the customary civil standard of proof
should apply in guardianship proceedings, but exercised its discretion
pursuant to Rule 50(d) to decline to enter a judgment until the close of all of
the evidence.
	[¶7]  Hughes then presented testimony from two of her friends and
from a mental health worker at AMHI, as well as testifying herself.  After the
parties filed post-trial memoranda, the court issued its order that found, by
a preponderance of the evidence, that Hughes was incapacitated by a mental
illness and that the incapacity affected Hughes's ability to secure and
maintain decent and safe housing in the community.  The court appointed
DHS as Hughes's public guardian with the following limitations:
1.	The guardian shall have no authority to consent to the
administration of medications to the ward against the expressed
will of the ward.

2.	As long as the ward remains an inpatient at a recognized
institution treating the mentally ill, her guardian shall have no
authority over the ward's financial or residential decisions.

3.	Upon the ward's discharge from an institution as
described in the preceding paragraph, and prior to that for
purposes of discharge planning only, the guardian shall have the
full authority accorded by law to make all decisions for the ward
other than decisions to allow administration of medications to
the ward against the expressed will of the ward.

4.	Should Maryanne F. Hughes leave and return to an
institution, the guardian's powers shall cease for the time she is
reinstitutionalized.
Hughes made motions to alter or amend the judgment pursuant to M.R. Civ.
P. 59(e) and for findings of fact pursuant to Rules 50(d) and 52(a).  In
response, the court clarified that its findings were based on a
preponderance of the evidence standard but denied the motions in all other
respects.  This appeal followed.
II.
	[¶8]  Hughes's primary argument on appeal is that the due process
requirements of the Fourteenth Amendment of the United States
Constitution and Article 1, Section 6-A of the Maine Constitution demand
the application of a clear and convincing evidentiary standard in
guardianship cases.  "This Court has long adhered to the principle that the
Maine Constitution and the Constitution of the United States are declarative
of identical concepts of due process."  State v. Rosado, 669 A.2d 180, 182
(Me. 1996) (quotation omitted).  Hughes and DHS agree that the test for
determining the evidentiary standard necessary to provide a potential ward
due process is that set out in Mathews v. Eldridge, 424 U.S. 319 (1976), and
Mahaney v. State, 610 A.2d 738 (Me. 1992).  The parties disagree, however,
about the result of that test.
	[¶9]  In a procedural due process challenge, we must first determine
whether the governmental action has resulted in a deprivation of life,
liberty, or property.  Mahaney, 610 A.2d at 742.  The parties agree that the
interests at stake in a guardianship proceeding are constitutionally
protected interests.  See Matter of Howes, 471 A.2d 689, 691 (Me. 1984)
("The appointment of a guardian for an incapacitated person affects the
fundamental personal liberty of the prospective ward.").  If a deprivation has
occurred, we are next required to determine what process is due the
individual under the Fourteenth Amendment.  "Due process is a flexible
concept that typically requires consideration of a number of factors,
including the importance of the individual's interest, the potential for
governmental error, and the magnitude of the state's interest."  Mahaney,
610 A.2d at 742; cf. Mathews, 334 U.S. at 335 (recognizing the same three
distinct factors for due process consideration).  A careful consideration of
the three factors convinces us that the constitutional requirement of due
process is satisfied by the application of a preponderance of the evidence
standard in guardianship proceedings.
	[¶10]  Regarding the first due process factor, the importance of the
individual's interest, Hughes notes that a number of her fundamental rights
are constrained by virtue of the guardianship, including her right to marry,
her right to travel, and her right to vote.  She draws an analogy between
guardianship proceedings and proceedings for involuntary civil
commitment, which require proof that an individual is mentally ill and
dangerous to herself or others by a clear and convincing standard.  See
Addington v. Texas, 411 U.S. 418, 429-33 (1979); 34-B M.R.S.A.
§ 3864(6)(A)(1) (Supp. 1997).  We agree with the Probate Court, however,
that the potential infringement of Hughes's liberty at stake in this
proceeding is not as extreme as the liberty interest at stake in Addington.
	[¶11]  Addington addressed the involuntary commitment of an
individual to a mental health facility.  The commitment procedure involved a
complete deprivation of a person's liberty to the extent the person could
lawfully be restrained by force from leaving the facility.  An institutionalized
person can not earn a living, can see visitors only at the discretion of
hospital staff, and is prevented from engaging in virtually all everyday
activities most of us take for granted.  Such a deprivation of rights reasonably
can be termed the most severe deprivation short of imprisonment.  A
person under guardianship, while facing significant constraints on her
decision-making ability, is not subject to nearly the same deprivations of
liberty.  Although a guardian is entitled to establish the ward's place of
abode, 18-A M.R.S.A. § 5-312(a)(1), nothing prevents the ward from simply
walking away from the chosen residence.  Similarly, a ward is free to spend
her day as she sees fit, may visit with others or entertain visitors, may
engage in a profession, and may be involved in any community activities she
may wish to join.  Without discounting the significant limitations a
guardianship does impose on a ward, those limitations pale in comparison to
persons facing involuntary commitment.
	[¶12]  Addressing the second due process factor, the risk of an
erroneous deprivation of an individual's liberty interest through the
procedures used, see Mathews, 424 U.S. at 335, Hughes contends that the
guardianship findings are final and that once a guardian is appointed, she
must face the burden of proving that she is no longer incapacitated.  She
asserts that, as in Santosky v. Kramer, 455 U.S. 745 (1982), which required
a clear and convincing standard for the termination of parental rights, the
State's resources in a guardianship proceeding dwarf those of the potential
ward, thus magnifying the risk of an erroneous deprivation.
	[¶13]  Hughes's comparison to Santosky also fails to persuade us that a
heightened evidentiary burden is necessary to adequately protect her liberty
interests.  One important aspect of the termination of parental rights
procedure facing the Supreme Court in Santosky was the finality of the
decision.
Whether the loss threatened by a particular type of proceeding is
sufficiently grave to warrant more than average certainty on the
part of the factfinder turns on both the nature of the private
interest threatened and the permanency of the threatened
loss. . . .  When the State initiates a parental rights termination
proceeding, it seeks not merely to infringe that fundamental
liberty interest, but to end it.
Santosky, 455 U.S. at 758-59.  In Maine, a guardianship proceeding is more
closely analogous to a child protection proceeding than a termination
proceeding.  A court may order the removal of a child from a parent's
custody if it finds by a preponderance of the evidence that the child is in
circumstances of jeopardy to his health or welfare.  22 M.R.S.A. §§ 4035-
4036 (1992 & Supp. 1997).  The parent's rights may not be terminated,
however, without clear and convincing evidence that the termination is in
the best interest of the child and that the parent is unfit to care for the
child in some way.  Id. § 4055.  The primary difference in the two
proceedings is the finality of the termination versus the potentially
temporary nature of a removal.  Contrary to Hughes's argument, a
guardianship proceeding lacks the finality of a termination proceeding.  A
ward may petition for termination of the guardianship at any time by means
of an informal letter to the court or judge, 18-A M.R.S.A. § 5-307(b), and
although the burden to show regained capacity rests with the ward,
Guardianship of Lander, 1997 ME 168, ¶ 7, 697 A.2d 1298, 1300, this
burden is no different than that faced by a parent seeking to regain custody
of a child after a finding that the child was in jeopardy.  22 M.R.S.A.
§ 4038(7)(B).
	[¶14]  Furthermore, the procedure for appointing a guardian
mandated by the Probate Code contains a number of safeguards against
serious risks of error, including the statute's requirement that a court
impose a guardianship only to the extent of a person's incapacity, 18-A
M.R.S.A. § 5­p;304(a), the mandatory appointment of a visitor, guardian ad
litem, or attorney in all guardianship cases, id. § 5-303(b), the mandatory
appointment of an attorney for any potential ward who wishes to contest the
guardianship, id., and the ability of a potential ward to introduce expert
testimony that contradicts the petitioner's experts.  Id. § 5-303(c).
	[¶15]  With regard to the third due process factor, the magnitude of
the State's interest, Hughes acknowledges the State has a legitimate
interest in protecting persons who may be unable to make responsible
decisions for themselves, but contends that this interest does not equal an
individual's interest in caring for herself should she have the capacity to do
so.  While we agree that Hughes has a significant interest in remaining free
from governmental intrusion so long as she remains capable of caring for
herself in a responsible manner, the State's interest in protecting its
citizens from harm can not be discounted.  A balanced evaluation of the
constitutional considerations in this case persuades us that a preponderance
of the evidence standard provides a respondent in a guardianship
proceeding adequate due process.  Any decision to raise the standard can
and should come from the Legislature.{1}
III.
	[¶16]  Hughes next argues that the court exceeded its discretionary
power when it did not limit the guardian's authority in the area of medical
decision making.  One policy underlying the Probate Code's guardianship
provisions is "to encourage the development of maximum self reliance and
independence of the incapacitated person and make appointive and other
orders only to the extent necessitated by the incapacitated person's actual
mental and adaptive limitations or other conditions warranting the
procedure."  18-A M.R.S.A. § 5-304(a).  See Guardianship of Collier, 653
A.2d 898, 900­p;01 (Me. 1995).  The Probate Court's determination of the
extent of the power to be exercised by the guardian in relation to the
incompetent person is reviewed for an abuse of discretion.  Id. at 900. 
"Because the appointment of a full guardian without limitation affects the
fundamental personal liberty of the prospective ward, it should not be done
without careful consideration of the prospective ward's specific needs."  Id.
at 902.  In Collier we vacated the Probate Court's appointment of a full
guardian because the record indicated that the Probate Court did not
consider a less restrictive guardianship to meet the ward's specific needs
and thus did not properly exercise its discretion.
	[¶17]  In the present case, it is clear that the Probate Court did
consider, and in fact appointed, a limited guardianship.  The court's order,
which reflected its sensitive attention to the issues in this case, significantly
restricted the guardian's authority to make decisions for Hughes while she
remains hospitalized.  Upon the discharge of Hughes from the hospital,
however, DHS has virtually a full guardianship, with the only limitation being
no authority to force Hughes to allow administration of medications.  The
broad authority granted by the court's order, which includes the power to
give or withhold consents or approvals related to the medical care of the
ward, see 18-A M.R.S.A. § 5-312(a)(3), is in contrast to the court's finding
that "the evidence is that with respect to all medical treatment decisions
other than those involving psychotropic drugs, the ward's decisions are
rational."  We are unable to discern from the court's order whether its
finding with regard to Hughes's ability to make medical decisions relates to
Hughes's global capability or, as the court found with respect to her financial
and residential issues, whether the finding applies only to Hughes's medical
decision-making ability while hospitalized.  Because of the possible
inconsistency between the court's finding and the limitations it placed on
the guardianship, we conclude that we must remand the case to allow the
court to clarify either its findings or its order of appointment.
IV.
	[¶18]  Hughes next argues that the court's failure to make findings of
fact upon her request constitutes reversible error.  She contends M.R. Civ. P.
50(d), which provides that "[i]f the court renders judgment on the merits,
the court shall upon request make findings as provided in Rule 52(a)," is
mandatory and because the court did not address her request, its judgment
must be vacated.  In response to her motion, the court reiterated its
determination that the preponderance of the evidence standard applies in
guardianship proceedings, but made no further findings of fact. 
	[¶19]  Section 5-304(c) of the Probate Code provides:  "In its order,
the court may make separate findings of fact and conclusions of law.  If a
party requests separate findings and conclusions, within 5 days of notice of
the decision, the court shall make them."  The purposes of making findings
of fact are to inform the parties of the reasoning underlying the court's
conclusions and to provide for effective appellate review.  See Sewall v.
Snook, 687 A.2d 234, 236 (Me. 1996).  These purposes are achieved when
the court adequately sets out its findings in its order, and in that
circumstance, no further findings should be required.  The second sentence
of section 5-304(c), which makes the issuance of findings mandatory on
request of a party, logically only applies when the court chooses not to
exercise its discretion to make findings pursuant to the first sentence of the
section.  This reasoning is supported by the language of M.R. Civ. P. 52(a),
which mandates the making of findings upon request of a party in all actions
tried without a jury but provides that "[i]f an opinion or memorandum of
decision is filed, it will be sufficient if the findings of fact and conclusions of
law appear therein."  Because the court's order did include findings, we
reject Hughes's contention that the denial of her motion for findings
warrants reversal.
V.
	[¶20]  Hughes also argues that the evidence presented by DHS in its
case-in-chief was insufficient to survive a motion for a judgment as a matter
of law, even under a preponderance of the evidence standard.  We review
the trial court's denial of a motion for a judgment as a matter of law by
examining the evidence in the light most favorable to the plaintiff to
determine whether any reasonable view of the evidence, including all
justifiable inferences to be drawn therefrom, can sustain the verdict.  Grover
v. Minette-Mills, Inc., 638 A.2d 712, 716 (Me. 1994).  "The burden is on the
moving party to show that the adverse verdict is clearly and manifestly
wrong."  Id. (quotations omitted).
	[¶21]  In order to present a prima facie case for the appointment of a
guardian, DHS was required to prove that Hughes was incapacitated and that
the appointment was necessary or desirable as a means of providing
continuing care and supervision of Hughes.  18-A M.R.S.A. § 5-304(b).  An
incapacitated person is one "who is impaired by reason of mental illness . . .
to the extent that [s]he lacks sufficient understanding or capacity to make or
communicate responsible decisions concerning h[er] person."  Id.
§ 5­p;101(1).  Although Hughes refers us to portions of the experts' testimony
that militate against the appointment of a guardian, both doctors testified
that Hughes has a mental illness that prevents her from making responsible
decisions in at least some areas of her life.  "The weight of the evidence and
credibility of witnesses is within the exclusive province of the factfinder." 
Bowden v. Grindle, 675 A.2d 968, 972 (Me. 1996).  The evidence
presented, when viewed in the light most favorable to DHS, was sufficient to
withstand a motion for judgment as a matter of law.
	The entry is:
Except as to the determination of incapacity,
judgment vacated.  Remanded for further
proceedings consistent with this opinion.

Attorneys for appellant: Helen M. Bailey, Esq., (orally) Kristin L. Aiello, Esq. Disability Rights Center P O Box 2007 Augusta, ME 04338-2007 Attorneys for appellee: Andrew Ketterer, Attorney General Peter J. Brann, Asst. Atty. Gen., (orally) Christopher C. Leighton, Asst. Atty. Gen. Sally M. Wagley, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006
FOOTNOTES******************************** {1}. The Legislature has specifically indicated the burden of proof necessary in certain areas of guardianship proceedings. For instance, the Probate Code requires clear and convincing proof of the need for a guardian for a minor when a parent of the minor objects to the appointment, 18-A M.R.S.A. § 5-204(c), and the Code specifies that a termination of a minor's guardianship in the absence of the guardian's consent is only appropriate if the court finds by a preponderance of the evidence that termination is in the best interest of the ward. Id. § 5- 212(d). These two examples, while not dispositive of the issue before us, illustrate that the Legislature is cognizant of its ability to mandate the standard that best reflects public policy.