I Care A Lot… Can that happen?
Have you seen this movie? With the assistance of a shady doctor, Marla Grayson, a wicked public conservator targets wealthy seniors so that she can liquidate their assets and profit from managing them after a court declares these individuals incapacitated. To make matters more nightmarish, this ruthless conservator gets the court order without providing any notice of the proceeding to the senior. Can this happen in Maine?!
The short answer is, yes, it is technically possible. The long answer, however, is it would be very unlikely to unfold in this way, but it is a good reminder to do your own incapacity planning!
In Maine, an interested person can petition a probate court to be appointed an emergency conservator. What is an emergency conservator? An emergency conservator is a court appointed individual given the authority to protect and manage an incapacitated person’s property and financial interests. The emergency conservatorship is limited in time (typically 60 days), in part, because it is intended to be a quick remedy for truly urgent situations where there isn’t enough time to assemble and review all of the pertinent information about the individual and the risk. A full hearing, with all required medical and other information, will be required in order for the conservatorship to continue beyond this emergency period.
Usually, the person subject to the conservatorship (called a “respondent” in Maine), has to receive notice of the emergency conservatorship petition before it is filed, in addition to some other specified family or friends. This notice allows the respondent to argue his or her case that the conservatorship is not necessary.
However, like in I Care A Lot, a petitioner doesn’t have to provide notice if they can show, by affidavit or testimony, that providing notice would put the respondent at more risk for exploitation or abuse or providing notice would be ineffective and that the respondent’s property will be substantially or irreparably harmed. For example, if one child is stealing money from mom, another sibling might seek conservatorship of mom’s funds in order to stop the financial abuse. The child seeking conservatorship may try to seek court relief without providing notice if knowledge of a conservatorship proceeding to mom and the pilfering sibling would accelerate the financial drain or put mom in physical harm as the stealing child panics over what’s to come.
Nonetheless, in Maine, if a court accepts this proof, and an emergency order is entered without notice and a hearing, the respondent and/or his or her attorney or someone close to them must be notified of the order within 48 hours, given an opportunity to object, and allowed a hearing within 14 days.
My example above could be appropriate for lack of notice, unlike the situation in I Care A Lot. There, the story involved a retired, single woman (ostensibly without children or any close relatives) who was apparently experiencing some mild confusion that Marla Grayson was able to weave into a dementia diagnosis. There was no real showing of imminent harm to her or her property, or a meaningful opportunity for the woman to object to the conservatorship.
Thankfully, this isn’t likely to happen in Maine. Our laws make guardianships and conservatorships an option of last resort to be used only when less restrictive alternatives aren’t sufficient to help someone in need. Also, importantly, as explained above, notice to the respondent is almost always required before a conservatorship or guardianship order enters.
So, yes, lack of notice is a thing, but not in the way it was depicted in I Care A Lot (at least not in Maine). That said, the story is a good reminder to do your own incapacity planning.
Having a court appoint someone you wouldn’t want to manage your property IS a real thing if you haven’t chosen a person for yourself in a legally-effective way, like through a financial power of attorney, and you need help managing your financial life.
If you do need a conservator appointed for you, there is a statutorily-mandated priority scheme for whom can be appointed for you. Top of this list is a person nominated by you in a power of attorney. If you haven’t nominated someone through a power of attorney, the priority falls to family or someone who has exhibited special care for you. Although those people may be appropriate for many, these classes of people may also be the very ones you need protection from.
And while I think (and hope) that people like Marla Grayson are more the stuff of fiction, why take the chance when this is something you can easily plan for today?
Schedule a call to discuss how tools like powers of attorney and advance health care directives can help you decide who can help you and when.