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Guardianship and Conservatorship of Jones

Supreme Court of Maine

June 20, 2017


          Submitted On Briefs: November 29, 2016

          Susan C. Thiem, Esq., Law Office of Susan C. Thiem, Lincolnville, pro se and for appellant Kenneth Jones


          HJELM, J.

         [¶1] Kenneth E. Jones, conservator and guardian for his son Vincent M. Jones, and Susan C. Thiem, Esq., Kenneth's counsel, appeal from two orders issued by the Waldo County Probate Court [Longley, J.).[1] In the first of these orders, the court dissolved and replaced a supplemental needs trust that had been created for Vincent's estate. Kenneth argues that, for several reasons, the court was procedurally barred from creating a new trust for Vincent. In the second order at issue on this appeal, the court directed Attorney Thiem, who created the original trust, to disgorge legal fees paid to her by Vincent and conditionally to pay additional amounts. Attorney Thiem argues on appeal that this order deprived her of due process. We affirm the court's order creating the replacement supplemental needs trust, but we vacate the payment order against Attorney Thiem and remand for further proceedings.

         I. BACKGROUND

         [¶2] In 2008, Kenneth E. Jones filed a petition in the Waldo County Probate Court to be appointed guardian and conservator for his incapacitated adult son, Vincent M. Jones, because of Vincent's debilitating mental illness. The court (Longley, J.) granted the petition in August 2008.

         [¶3] Kenneth retained Attorney Thiem as counsel as early as December 2008. In March 2013, Kenneth filed a petition with the Probate Court for retroactive judicial approval of a supplemental needs trust benefiting Vincent.[2] In the petition, Kenneth stated that in August 2012, Vincent had been moved from a psychiatric hospital to the Charlotte White Center (CWC), a long-term care facility. Kenneth further stated that Vincent was receiving Social Security and MaineCare benefits, and that because Vincent was now a long-term care resident, he could continue to receive MaineCare benefits if less than $10, 000 were maintained in a trust. After a telephonic hearing, the court issued an order in June 2013, concluding that the trust was in Vincent's best interest and retroactively authorizing Kenneth to create the trust.

         [¶4] In October 2013, Kenneth filed the third account of his guardianship detailing the assets and financial transactions of Vincent's estate from June 2012 to September 2013. See 18-A M.R.S. § 5-419 (2016). The account indicated that in January 2013, the estate had made a $25, 000 payment, plus additional payments totaling $5, 292, to CWC. In response, the court appointed a visitor to "scrutinize the billing, determine if the ward is receiving services promised, [and] assess amounts charged to determine reasonableness and appropriateness." See id. § 5-419(c). The visitor subsequently filed a letter with the court recommending that "a detailed invoice be required from CWC to confirm the reasonableness of the $25, 000 back payment."

         [¶5] After holding a telephonic status conference in January 2014, the court appointed a second visitor to research the $25, 000 payment. That visitor filed a report in May 2014, along with copies of an invoice for more than $62, 000 arising from CWC's care of Vincent from August through November 2012; correspondence from Attorney Thiem to CWC accompanying the $25, 000 payment from Vincent's trust account, in which Attorney Thiem asserted that "Medicaid should have paid for the first 100 days of care" and thus that $25, 000 was an overpayment; and a response from CWC's chief financial officer. The CFO's letter stated that Attorney Thiem had misunderstood the funding sources and that CWC was owed for Vincent's care until Medicaid began covering the payments in December 2012, but that CWC had agreed to discount the charges and accept $25, 000 as full payment as an accommodation to Vincent.

         [¶6] In July 2014, Attorney Thiem filed a motion for recusal and disqualification of Judge Longley, asserting that during the January 2014 conference, [3] the court "proceeded to berate [Attorney Thiem], intimating that [her] legal fees were excessive" and that her "procedural blunders" adversely affected Vincent's assets. Attorney Thiem subsequently moved to dismiss that motion "in light of the [court's] threat [allegedly made at another hearing that is not noted in the docket], and to protect my client's interest."

         [¶7] In orders issued on September 9, 2014, the court denied both Attorney Thiem's motion to dismiss the motion to recuse and the motion for recusal itself, stating that the court had "acted even-handedly to date" and could continue to do so. The court also issued an order noting that it had found a "discrepancy" and a "dramatic change from the previous accounting" in the third account-the $25, 000 payment to CWC-which, according to the court, the conservator, through Attorney Thiem, was unable to adequately explain. In that order, the court concluded that an error by Attorney Thiem had necessitated the $25, 000 payment. In October, the court ordered Kenneth to file an explanation for "the $25, 000 loss of assets from [Vincent's] estate" and to address the issue of "[s]anctions for [Attorney Thiem] in light of delays and mistakes resulting in the $25, 000 loss of assets from [Vincent's] estate."

         [¶8] On November 24, 2014, Attorney Thiem filed a renewed motion for Judge Longley to recuse herself from the proceeding. Additionally, Kenneth filed a petition for leave to resign as Vincent's conservator based on his stated belief that the court was dissatisfied with his actions. Kenneth subsequently filed both an amended third account and a fourth account to bring the accountings current through October 2014. Later in December, the court appointed an attorney to represent Vincent's interests in connection with the third account and the $25, 000 payment to CWC.

         [¶9] In January 2015, Attorney Thiem filed a motion to withdraw as counsel for Kenneth, asserting in part that her contentious relationship with Judge Longley had made it difficult for Kenneth to carry out his responsibilities as Vincent's conservator and guardian. The court held a telephonic conference, in which Attorney Thiem participated, on February 10, 2015. Judge Longley issued an order on March 24, 2015, denying the renewed motion for recusal but granting Attorney Thiem's motion to withdraw as counsel.

         [¶10] This left several matters pending, including a ruling on the third and fourth accounts pursuant to 18-A M.R.S. § 5-419, and Kenneth's petition to withdraw as conservator. From June to December 2015, the court held five telephonic conferences on these outstanding matters, ultimately holding a hearing over two days in January and February 2016.[4] Ten different notices of conference and hearing dates were sent to Kenneth, Vincent's appointed counsel, and the visitor. None of the notices was sent to Attorney Thiem, who had already been given leave to withdraw from the case. The last two notices of hearing, which set out the two dates when the hearing was actually held, referred to the "Court's Motion to Reform the Trust."

         [¶11] On the second hearing day, the court stated its view that the supplemental needs trust it had approved in 2013 was unnecessary because the funds it was intended to protect were already exempt from MaineCare's eligibility calculations. The court implied that Attorney Thiem had conflated Medicaid and Medicare in her analysis of Vincent's situation, and stated that it wanted to issue an order that would "recoup . . . the legal expenses paid to date because of the situation that's resulted, which has been the loss of [Vincent's] life savings." The court further stated that reimbursement ...

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