Argued: October 11, 2018
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
S. Cohen, Esq. (orally), Cohen, Cohen & Hallowell, P.C.,
Waldoboro, for appellee Patricia S.
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
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-AM.R.S. §
5-303(a) (2017); (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 mothers best
interest. We vacate the judgment and 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.
The following facts are set out in the procedural record and
in the courts 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.
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 mothers
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. Peters
contact with his 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. Peters involvement in his
mothers care has been limited to talking with Michael about
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.
In August of 2017, the Department of Health and Human
Services filed a petition seeking the appointment of the
mothers 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 Departments 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).
The Zanis opposed the Departments 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 Departments nomination of
the mothers stepson as guardian was withdrawn, leaving only
the Zanis petition to be adjudicated. Although the Department
subsequently took the position that Beaster and Carter should
be appointed 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.
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 ...