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Guardianship of Lander
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MAINE SUPREME JUDICIAL COURT			Reporter of Decisions
Decision:	1997 ME 168
Docket:	Pen-96-817
Submitted
on Briefs:	May 23, 1997
Decided:	July 23, 1997	

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





GUARDIANSHIP OF CHARLES H. LANDER


WATHEN, C.J.


	[¶1]  Charles H. Lander, a ward in an adult guardianship, appeals from
the judgment entered in the Penobscot County Probate Court (Woodcock, J.)
denying his petition for the termination of guardianship pursuant to 18-A
M.R.S.A. § 5-307 (1988).  He argues that the court erred by allocating the
burden of proof to him as petitioner.  Finding no error, we affirm the
judgment.
	[¶2]  The facts presented to the Probate Court may be summarized as
follows:  A petition for appointment of a public guardian for the ward was
first filed in June 1990.  He did not contest the appointment and an order
was entered appointing the Department of Human Services (DHS) as public
guardian.  DHS filed annual reports with the court.   In June 1995, the ward
successfully petitioned for a termination of the guardianship.  In December
1995, a second petition for the appointment of a public guardian was filed
and DHS was appointed as temporary guardian.  After a hearing, a judgment
was entered in February 1996, granting the petition and again appointing
DHS as the public guardian.   
	[¶3]  In May 1996, the ward filed the present petition for the
termination of guardianship alleging that he is no longer incapacitated.  DHS
objected to the petition because it fails to allege any change in
circumstances.  The court appointed an attorney and a visitor to represent
the interest of the ward.  After a preliminary hearing, the court ruled that,
as petitioner, the ward bears the burden of proof.  He declined to offer any
evidence at the final hearing and the court entered a judgment denying his
petition for the termination of the guardianship.  The ward appeals.
	[¶4]  The general rule places the burden on petitioners and other
moving parties to prove the facts they allege.  Nichols v. Cantara & Sons, 659
A.2d 258, 262 (Me. 1995).  The Probate Code provides that "[u]nless
displaced by the particular provisions of this Code, the principles of law and
equity supplement its provisions." 18-A M.R.S.A. § 1-103 (1981).  The ward
argues that the general rule does not apply in a petition to terminate an
adult guardianship because the statute has reallocated the burden to the
guardian.  He relies on the following language in the statute:

Before removing a guardian, accepting the resignation of a
guardian, or ordering that a ward's incapacity has terminated,
the court, following the same procedures to safeguard the rights
of the ward as apply to a petition for appointment of a guardian,
may send a visitor to the residence of the present guardian and
to the place where the ward resides or is detained, to observe
conditions and report in writing to the court.

18-A M.R.S.A. § 5-307(c) (1981) (emphasis added).  The statute is
ambiguous.  It is unclear whether the underlined phrase merely modifies the
sending of "a visitor to the residence," or incorporates all procedural
requirements for the initial appointment.  When the plain words of the
statute render its meaning ambiguous, we examine other indicia of
legislative intent, including legislative history.  Jordan v. Sears, Roebuck &
Co., 651 A.2d 358, 360 (Me. 1994).  The intent of the language in question
is expounded on in the legislative study that preceded the adoption of the
1979 revision to Maine's Probate Code.
  
Subsection (c) applies to these proceedings the same procedural
safeguards provided for the guardianship appointment
procedures (see UPC 5-303) and authorizes the court to use a
visitor as in the appointment proceedings.  

Maine Probate Law Revision Commission, Report of the Commission's Study
and Recommendations Concerning Maine Probate Law, at 544 (October,
1978) (emphasis added).  The commission report suggests that the
Legislature intended section 5-307 would provide for the appointment of a
visitor and would provide the same procedural safeguards that apply in an
appointment proceeding.
	[5] In an effort to avoid the application of the general rule, the ward
argues that section 5-303 allocates the burden of proof to the person
petitioning for appointment of a guardian and, because of section 5-307(c),
that same procedural safeguard is required in a termination proceeding.  His
argument, however, ignores the fact that section 5-303  does not expressly
allocate the burden of proof in appointment proceedings. The original
enactment of 5-303 enumerated several procedures that can be considered
safeguards: (1) the requirement of a hearing; (2) the discretionary
appointment of an attorney; (3) examination by a physician acceptable to the
court; (4) submission of a written report by the physician; (5) the
discretionary appointment of a visitor; (6) submission of a written report by
the visitor; (7) the right to be present at the hearing, to be represented, to
present evidence, to cross-examine witnesses, and to request a closed
hearing.  The Legislature, however, did not allocate the burden of proof in
the original enactment or in any of the subsequent amendments to section
5-303.{1}   Thus, the general rule prevails in an appointment proceeding.
	[6]  Next, the ward argues that even though the Legislature has not
expressly reallocated the burden of proof, reallocation is consistent with the
legislative intent.  He relies on the following comment to the statute:  "In all
review proceedings the welfare of the ward is paramount." Unif. Probate
Code  5-307 comment (1969).  He argues that because the welfare of the
ward is paramount, and because guardianship is a substantial restriction of
liberty, the ability to seek its removal should be encouraged.  The State
points out, however, that such an unwarranted extrapolation from the
comment would subject guardians to the time and expense of defending
repeated petitions for termination by wards who have no burden beyond an
allegation in the petition.  There is no statutory limit on the number or
frequency of filings that a ward can bring,{2} and we note that the Legislature
considered the possibility of frequent filings when it expressly allocated the
burden of proof to guardians of minors.

The guardian has the burden of showing by a preponderance of
the evidence that continuation of the guardianship is in the best
interest of the ward.  If the court does not terminate the
guardianship, the court may dismiss subsequent petitions for
termination of the guardianship unless there has been a
substantial change of circumstances.

18-A M.R.S.A.  5-212(d) (Supp. 1996).  With respect to minors, the
Legislature placed the burden of proof on the guardian but gave the court
discretion to adjust the burden in subsequent petitions by requiring the
petitioner to show a substantial change of circumstances.  In the present
context, there is nothing to suggest a similar legislative approach with
respect to section 5-307.
	[7]  Because the Legislature neither directly nor indirectly allocated
the burden of proof in termination proceedings for adult guardianships, the
general rule applies and places the burden on the moving party. 
	The entry is:
					Judgment affirmed.

Attorney for appellant: R. Lee Ivy, Esq. Eaton, Peabody, Bradford & Veague, P.A. P O Box 1210 Bangor, ME 04402-1210 Attorneys for appellee Department of Human Services: Andrew Ketterer, Esq. Carmen L. Coulombe, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006 Jay H. Otis, Esq. 146 Parkway South, Suite 10 Brewer, ME 04412 Visitor appointed by Probate Court: Paul O. Dillon, Esq. P O Box 346 Corinth, ME 04427
FOOTNOTES******************************** {1} Subsequent amendments, P.L. 1985, ch. 440; P.L. 1989, ch. 858, § 2; P.L. 1993, ch. 652, § 1; P.L. 1995, ch. 203, § 1, have provided the following safeguards (listed in summary form): (1) The person nominated as guardian must file a plan specifying how the ward's financial, housing, social and medical needs will be met; (2) Unless the allegedly incapacitated person is represented the court must appoint a visitor, guardian ad litem, or attorney; (3) If the person contests the appointment, the court must appoint an attorney; (4) The examining physician may be a psychologist, and the report must provide diagnoses, a description of the person's mental and functional limitations and prognoses; (5) The obligations of the visitor or guardian ad litem are more specifically delineated; (6) All reports and plans must be submitted at least 10 days before any hearing on the petition; (7) When there is an allegation of abuse, neglect or exploitation of the person, the court may hear testimony of the person in chambers with only the guardian ad litem and counsel present. {2} The original limitation was deleted by a 1979 amendment: An order adjudicating incapacity may specify a minimum period, not exceeding one year, during which no petition for an adjudication that the ward is no longer incapacitated may be filed without special leave. 18-A M.R.S.A. § 5-307(b) (repealed 1979).