CHAPTER 236
H.P. 947 - L.D. 1275
An Act To Amend the Laws Governing Improvident Transfers of Title
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 33 MRSA §1022, as enacted by PL 1987, c. 699, §1, is amended to read:
1. Presumption. In any transfer of real estate or major transfer of personal property or money for less than full consideration or execution of a guaranty by an elderly person who is dependent on others to a person with whom the elderly dependent person has a confidential or fiduciary relationship, it shall be is presumed that the transfer or execution was the result of undue influence, unless the elderly dependent person was represented in the transfer or execution by independent counsel. When the elderly dependent person successfully raises the presumption of undue influence by a preponderance of the evidence and when the transferee or person who benefits from the execution of a guaranty fails to rebut the presumption, the elderly dependent person shall be is entitled to avoid the transfer or execution and be entitled to the relief set forth in section 1024.
2. Confidential or fiduciary relationship. For the purpose of this section, the transfer of property or execution of a guaranty is deemed to have been made in the context of a confidential or fiduciary relationship if the transferee or person who benefits from the execution of a guaranty had a close relationship with the elderly dependent person prior to the transfer or execution. Confidential or fiduciary relationships include the following:
A. A family relationship between the elderly dependent person and the transferee or person who benefits from the execution of a guaranty, including relationships by marriage and adoption;
B. A fiduciary relationship between the elderly dependent person and the transferee or person who benefits from the execution of a guaranty, such as with a guardian, conservator, trustee, accountant, broker or financial advisor;
C. A relationship between an elderly dependent person and a physician, nurse or other medical or health care provider;
D. A relationship between the elderly dependent person and a psychologist, social worker or counselor;
E. A relationship between the elderly dependent person and an attorney;
F. A relationship between the elderly dependent person and a priest, minister, rabbi or spiritual advisor;
G. A relationship between the elderly dependent person and a person who provides care or services to that person whether or not care or services are paid for by the elderly person;
H. A relationship between an elderly dependent person and a friend or neighbor; or
I. A relationship between an elderly dependent person and a person sharing the same living quarters.
When any of these relationships exist and when a transfer or execution is made to a corporation or organization primarily on account of the membership, ownership or employment interest or for the benefit of the fiduciary or confidante, a fiduciary or confidential relationship with the corporation or organization is deemed to exist.
Sec. 2. 33 MRSA §1023, as amended by PL 1989, c. 238, §§2 and 4, is further amended to read:
§1023. Civil action; relief available
1. Civil action. A civil action may be brought to obtain relief under this chapter by an elderly dependent person or, that person's legal representative or the personal representative of the estate of an elderly dependent person.
2. Relief available; protected transfers and executions. When a court finds that a transfer of property or execution of a guaranty was the result of undue influence, it shall grant appropriate relief enabling the elderly dependent person to avoid the transfer or execution, including the rescission or reformation of a deed or other instrument, the imposition of a constructive trust on property or an order enjoining use of or entry on property or commanding the return of property. When the court finds that undue influence is a good and valid defense to a transferee's suit on a contract to transfer the property or a suit of a person who benefits from the execution of a guaranty on that guaranty, the court shall refuse to enforce the transfer or guaranty.
No relief obtained or granted under this section may in any way affect or limit the right, title and interest of good faith purchasers, mortgagees, holders of security interests or other 3rd parties who obtain an interest in the transferred property for value after its transfer from the elderly dependent person. No relief obtained or granted under this section may affect any mortgage deed to the extent of value given by the mortgagee.
Effective September 13, 2003, unless otherwise indicated.
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