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Guardianship of Patricia S.

Supreme Court of Maine

February 12, 2019


          Argued: October 11, 2018

          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.


          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-AM.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 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.

         I. BACKGROUND

         [¶2] 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.

         [¶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 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 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.

         [¶5] 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).

         [¶6] 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.[2] 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.

         [¶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 ...

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