In re Patricia S.

202 A.3d 532
Supreme Judicial Court of Maine·Decided February 12, 2019·No. Docket: Lin-18-38·Published·Cited by 3 cases

Opinion

HJELM, J.

*534[¶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-A M.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 mother's 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 court's 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 mother's 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. Peter's 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. Peter's involvement in his mother's 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 *535her 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 mother's 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 Department's 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 Department's 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 Department's nomination of the mother's 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 co-guardians, and Beaster and Carter both testified that they were willing to be appointed to that position.

[¶8] At the conclusion of the hearing, the court directed the mother's attorney to file acceptances of appointment and a guardianship plan on behalf of Beaster and Carter, see 18-A M.R.S. §§ 5-303(a), 5-305 (2017), and they did so two weeks later. The Zanis objected and moved to strike the filings-a motion the court later denied-and in their written summation they objected to the appointment of Beaster and Carter on the merits.

[¶9] In early January of 2018, the court entered a judgment appointing Beaster and Carter as the mother's co-guardians after determining that their appointment was in the mother's best interest because they are "trusted and qualified" and had been chosen by the Zanis themselves to serve as the mother's caregivers. The court also concluded, for several reasons it articulated in both its judgment and an order on the Zanis' motion for further findings, see 18-A M.R.S. § 5-304(c) (2017), that it was not in the mother's best interest to have Michael Zani or Peter Zani, either individually or jointly, appointed her guardian or co-guardians. The Zanis filed a timely appeal to us. See 18-A M.R.S. § 1-308 (2017) ; M.R. App. P. 2B(c)(2)(B).

II. DISCUSSION

[¶10] The Zanis argue on appeal that the court erred by (1) appointing Beaster and Carter as co-guardians because they had not filed nominating petitions, guardianship *536plans, or acceptances prior to the hearing; (2) not giving the Zanis, as the mother's adult children, priority for appointment; and (3) determining that the appointment of Beaster and Carter is in the mother's best interest. For the reasons discussed below, we vacate the judgment based on the first of these challenges-the procedural deficiencies affecting the court's consideration of Beaster and Carter as possible guardians.

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In re Patricia S., 202 A.3d 532 (Me. 2019).

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