HP0091, LD 123, item 2, Document Text

Amend the bill in Part A in section 2 in §1-110 by striking out all of subsection 5 (page 5, lines 11 and 12 in L.D.) and inserting the following:

‘ 5. Application and effective date. This section applies to all trusts and estates in existence on and created after July 1, 2019.’

Amend the bill in Part A section 2 in §1-201 by striking out all of subsection 46 (page 10, lines 3 and 4 in L.D.) and inserting the following:

‘ 46. Protective proceeding. "Protective proceeding" means a proceeding under Article 5, Part 6.’

Amend the bill in Part A in section 2 by striking out all of §1-308 (page 13, lines 27 to 29 in L.D.) and inserting the following:

‘ § 1-308. Appeals

Appeals from all final judgments, orders and decrees of the court may be taken to the Supreme Judicial Court, sitting as the Law Court, as in other civil actions.’

Amend the bill in Part A in section 2 in §1-602 by inserting at the end the following:

‘ 12. Registration of guardianship order from another state. For registering a guardianship order from another state, the fee is $25.’

Amend the bill in Part A in section 2 in §2-106 in subsection 3 by striking out all of paragraph A (page 29, lines 30 to 32 in L.D.) and inserting the following:

‘ A. Surviving descendants in the generation nearest to the deceased parents or either of them, or the deceased grandparents or either of them, that contains one or more surviving descendants; and’

Amend the bill in Part A in section 2 in §2-113 by striking out all of subsection 1 (page 31, lines 2 to 10 in L.D.) and inserting the following:

‘ 1. Parent barred from inheriting though child. A parent is barred from inheriting through intestate succession from or through a child of the parent if:

A. The parent’s parental rights were terminated and the parent-child relationship was not judicially reestablished; or

B. The child died before reaching 18 years of age and there is clear and convincing evidence that immediately before the child’s death the parental rights of the parent could have been terminated under the laws of this State other than Articles 1 to 8 on the basis of nonsupport, abandonment, abuse, neglect or other actions or inactions of the parent toward the child.’

Amend the bill in Part A in section 2 in Article 2 by striking out all of subpart 2 and inserting the following:

‘ SUBPART 2

PARENT-CHILD RELATIONSHIP

§ 2-115. Determination of parentage for purposes of intestate succession

Unless otherwise provided in this subpart, "parent" for purposes of intestate succession means a person who has established a parent-child relationship with the child under Article 9 or Title 19-A, chapter 61 and whose parental rights have not been terminated.

§ 2-116. Effect of a pending petition

If a petition to establish parentage under Title 19-A, chapter 61 or a petition for adoption under Article 9 is pending and has not been finally adjudicated at the time of the petitioner's death, the subject of the petition is considered a child of the petitioner for intestate succession purposes and may inherit from and through the petitioner. If the subject of the petition dies before a final adjudication of parentage is issued, the petitioner may inherit from or through the subject of the petition only if there is a final adjudication of parentage.

§ 2-117. Effect of an order granting adoption on adoptee and adoptee's former parents

An order granting an adoption divests the adoptee's former parents of all legal rights, powers, privileges, immunities, duties and obligations concerning the adoptee, including the right to inherit from or through the adoptee. An adoptee, however, may inherit from the adoptee's former parents if so provided in the adoption decree.

§ 2-118. Child born after death of parent

An individual is a parent of a child who is born after the individual's death, if the child is:

1. In utero. In utero not later than 36 months after the individual's death; or

2. Born. Born not later than 45 months after the individual's death.’

Amend the bill in Part A in section 2 in §2-208 by striking out all of subsection 2 (page 43, lines 12 to 20 in L.D.) and inserting the following:

‘ 2. Valuation. The value of property is determined as follows.

A. The value of property included in the augmented estate under section 2-205, 2-206 or 2-207 is reduced in each category by enforceable claims against the included property.

B. The value of property includes the commuted value of any present or future interest and the commuted value of amounts payable under any trust, except as provided in paragraph C, life insurance settlement option, annuity contract, public or private pension, disability compensation, death benefit or retirement plan or any similar arrangement, exclusive of the federal Social Security system.

C. The value of a surviving spouse's beneficial interest in a trust from which distributions of both income and principal to the surviving spouse are subject to the trustee's discretion, regardless of whether that discretion is expressed in the form of a standard of distribution, is presumed to be 1/2 of the total value of the trust estate unless a different value is established by proof; except that the value of a surviving spouse's beneficial interest in a trust from which distributions of both income and principal to the surviving spouse are subject to the trustee's discretion, without an ascertainable standard, is presumed to be the full value of the trust estate if the spouse is the sole trustee of the trust.’

Amend the bill in Part A in section 2 by striking out all of §2-403 (page 49, lines 27 to 39 and page 50, lines 1 to 3 in L.D.) and inserting the following:

‘ § 2-403. Exempt property

In addition to the homestead allowance, the decedent's surviving spouse is entitled from the estate to a value, not exceeding $15,000 in excess of any security interests in the estate of tangible personal property, including, but not limited to, in household furniture, automobiles, furnishings, appliances and personal effects. If there is no surviving spouse, children of the decedent are entitled jointly to the same value; however, the decedent, by will, may exclude one or more adult children from the receipt of exempt property. If encumbered chattels are selected and the value in excess of security interests, plus that of other exempt property, is less than $15,000, or if there is not $15,000 worth of exempt property in the estate, the spouse or children are entitled to other assets of the estate, if any, to the extent necessary to make up the $15,000 value. Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate, except that the right to any assets to make up a deficiency of exempt property abates as necessary to permit earlier payment of homestead allowance and family allowance. These rights are in addition to any benefit or share passing to the surviving spouse or children by the decedent's will unless otherwise provided by intestate succession or by way of elective share.’

Amend the bill in Part A in section 2 in §2-513 by striking out all of the first indented paragraph (page 56, lines 2 and 3 in L.D.) and inserting the following:

‘

A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after July 1, 2019, can be established only by:’

Amend the bill in Part A in section 2 by striking out all of §2-705 (page 71, lines 1 to 38 and page 72, lines 1 to 18 in L.D.) and inserting the following:

‘ § 2-705. Class gifts construed to accord with intestate succession; exceptions

1. Definitions. As used in this section, unless the context otherwise indicates, the following terms have the following meanings.

A. "Distribution date" means the date when an immediate or postponed class gift takes effect in possession or enjoyment.

B. "Relative" means a grandparent or the descendant of a grandparent.

2. Terms of relationship. A class gift that uses a term of relationship to identify the class members includes in the class a child of parents regardless of their martial status, and their respective descendants if appropriate to the class, in accordance with the rules for intestate succession regarding parent-child relationships.

3. Relatives by marriage. Terms of relationship in a governing instrument that do not differentiate relationships by parentage, including relatives of parents, from those by marriage, such as uncles, aunts, nieces or nephews, are construed to exclude relatives by marriage, unless:

A. When the governing instrument was executed, the class was then and foreseeably would be empty; or

B. The language or circumstances otherwise establish that relatives by marriage were intended to be included.

4. Relatives of shared parentage. Terms of relationship in a governing instrument that do not differentiate relationships by whether all parents are shared, such as brothers, sisters, nieces or nephews, are construed to include all types of relationships regardless of whether relatives share all parents.

5. Transferor not parent. In construing a dispositive provision of a transferor who is not the parent, the transferor or a relative of the transferor must have established a parent-child relationship with the child before the child reached 18 years of age.

6. Class-closing rules. The following provisions apply for purposes of the class-closing rules.

A. A child in utero at a particular time is treated as living at that time if the child lives 120 hours after birth.

B. If the distribution date is the date of the deceased parent's death, a child in utero not later than 36 months after the deceased parent's death or born not later than 45 months after the deceased parent's death is treated as living at that time if the child lives 120 hours after birth.

C. An individual who is in the process of being adopted when the class closes is treated as a child of the parent when the class closes if the adoption is subsequently granted.’

Amend the bill in Part A in section 2 by striking out all of §2-916 (page 94, lines 30 to 34 in L.D.) and inserting the following:

‘ § 2-916. Application to existing relationships

Except as otherwise provided in section 2-913, an interest in or power over property existing on July 1, 2019 as to which the time for delivering or filing a disclaimer under law superseded by this Part has not expired may be disclaimed after July 1, 2019.’

Amend the bill in Part A section 2 by striking out all of §3-604 (page 126, lines 19 to 34 in L.D.) and inserting the following:

‘ § 3-604. Bond amount; security; procedure; reduction

If bond is required and the provisions of the will or order do not specify the amount, unless stated in the application or petition, the person qualifying shall file a statement under oath with the register indicating that person's best estimate of the value of the personal estate of the decedent and of the income expected from the personal and real estate during the next year, and that person shall execute and file a bond with the register, or give other suitable security, in an amount not less than the estimate. The register shall determine that the bond is duly executed by a corporate surety, or one or more individual sureties whose performance is secured by pledge of personal property, mortgage on real property or other adequate security. The register may permit the amount of the bond to be reduced by the value of assets of the estate deposited with a domestic financial institution, as defined in section 6-201, subsection 4, in a manner that prevents their unauthorized disposition. On petition of the personal representative or another interested person the court may excuse a requirement of bond, increase or reduce the amount of the bond, release sureties or permit the substitution of another bond with the same or different sureties.’

Amend the bill in Part A in section 2 by striking out all of §3-607 (page 127, lines 30 to 38 in L.D.) and inserting the following:

‘ § 3-607. Order restraining personal representative

1. Order. On petition of any person who appears to have an interest in the estate, the court by temporary order may restrain a personal representative from performing specified acts of administration, disbursement or distribution, or exercise of any powers or discharge of any duties of the personal representative's office, or make any other order to secure proper performance of the personal representative's duty, if it appears to the court that the personal representative otherwise may take some action that would jeopardize unreasonably the interest of the applicant or of some other interested person. Persons with whom the personal representative may transact business may be made parties.

2. Hearing. The matter under subsection 1 must be set for hearing as soon as practicable unless the parties otherwise agree. Notice as the court directs must be given to the personal representative and the personal representative's attorney of record, if any, and to any other parties named as defendants in the petition.’

Amend the bill in Part A in section 2 by striking out all of §3-711 (page 136, lines 3 to 7 in L.D.) and inserting the following:

‘ § 3-711. Powers of personal representatives; in general

Until termination of the personal representative's appointment, a personal representative has the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate. This power may be exercised without notice, hearing or order of court, except as limited by this section. The personal representative may not sell or transfer any interest in real property of the estate without giving notice at least 10 days prior to that sale or transfer to any person succeeding to an interest in that property, unless the personal representative is authorized under the will to sell or transfer real estate without this notice.’

Amend the bill in Part A in section 2 in §3-804 by striking out all of subsection 1 (page 143, lines 3 to 12 in L.D.) and inserting the following:

‘ 1. Written statement of claim. The claimant may deliver or mail to the personal representative a written statement of the claim indicating its basis, the name and address of the claimant and the amount claimed, or may file a written statement of the claim, in the form prescribed by rule, with the register. The claim is deemed presented on the first to occur of receipt of the written statement of claim by the personal representative or the filing of the claim with the court. If a claim is not yet due, the date when it will become due must be stated. If the claim is contingent or unliquidated, the nature of the uncertainty must be stated. If the claim is secured, the security must be described. Failure to describe correctly the security, the nature of any uncertainty and the due date of a claim not yet due does not invalidate the presentation made.’

Amend the bill in Part A in section 2 in §3-804 by striking out all of subsection 4 (page 143, lines 26 to 30 in L.D.) and inserting the following:

‘ 4. Presenting claims before administration. When a decedent's estate has not been commenced at the time a claimant wishes to present a claim, a claim is deemed presented when the claimant files with the register a written statement of claim meeting the requirements of subsection 1 and a demand for notice pursuant to section 3-204. The provisions of subsection 3 apply upon the appointment of a personal representative.’

Amend the bill in Part A in section 2 in §3-806 by striking out all of subsection 3 (page 144, lines 32 to 37 in L.D.) and inserting the following:

‘ 3. Allowance by court. Upon the petition of the personal representative or of a claimant in a proceeding for the purpose, the court may allow in whole or in part any claim or claims presented to the personal representative or filed with the register in due time and not barred by subsection 1. Notice in this proceeding must be given to the claimant, the personal representative and those other persons interested in the estate as the court may direct by order entered at the time the proceeding is commenced.’

Amend the bill in Part A in section 2 in §3-916 by striking out all of subsection 12 (page 160, lines 4 to 12 in L.D.) and inserting the following:

‘ 12. Delayed application. The applicability of subsections 3 to 7 is governed by this subsection.

A. Subsections 3 to 7 do not apply to the estate of a decedent who dies on or within 3 years after July 1, 2019 nor to the estate of a decedent who dies more than 3 years after July 1, 2019 if the decedent continuously lacked testamentary capacity from the expiration of the 3-year period until the date of death.

B. For the estate of a decedent who dies on or after July 1, 2019 to which subsections 3 to 7 do not apply, estate taxes must be apportioned pursuant to the law in effect immediately before July 1, 2019.’

Amend the bill in Part A in section 2 in §3-1201 in subsection 1 by striking out all of paragraph A (page 164, lines 11 and 12 in L.D.) and inserting the following:

‘ A. The value of the entire estate, wherever located, less liens and encumbrances, does not exceed $40,000;’

Amend the bill in Part A in section 2 by striking out all of §4-204 (page 179, lines 27 to 32 in L.D.) and inserting the following:

‘ § 4-204. Proof of authority; bond

If no local administration or application or petition for local administration is pending in this State, a domiciliary foreign personal representative may file with a court in this State in a county in which property belonging to the decedent is located authenticated copies of the foreign personal representative's appointment, of any official bond the foreign personal representative has given and a certificate, dated within 60 days, proving the foreign personal representative's current authority.’

Amend the bill in Part A in section 2 by striking out all of Article 5 and inserting the following:

‘ ARTICLE 5

UNIFORM GUARDIANSHIP AND PROTECTIVE PROCEEDINGS

PART 1

GENERAL PROVISIONS

§ 5-101. Short title

Parts 1, 2, 3, 4 and 5 of this Article may be known and cited as "the Uniform Guardianship and Protective Proceedings Act."

§ 5-102. Definitions

As used in this Article, unless the context otherwise indicates, the following terms have the following meanings.

1. Adult. "Adult" means an individual at least 18 years of age or an emancipated individual under 18 years of age.

2. Adult subject to conservatorship. "Adult subject to conservatorship" means an adult for whom a conservator has been appointed under this Act.

3. Adult subject to guardianship. "Adult subject to guardianship" means an adult for whom a guardian has been appointed under this Act.

4. Best interest of the minor. "Best interest of the minor" means the standard of the best interest of the child according to the factors set forth in Title 19-A, section 1653, subsection 3.

5. Claim. "Claim" includes a claim against an individual or conservatorship estate, whether arising in contract, tort or otherwise.

6. Conservator. "Conservator" means a person appointed by a court to make decisions with respect to the property or financial affairs of an individual subject to conservatorship. "Conservator" includes a coconservator.

7. Conservatorship estate. "Conservatorship estate" means the property subject to conservatorship under this Act.

8. Full conservatorship. "Full conservatorship" means a conservatorship that grants the conservator all powers available under this Act.

9. Full guardianship. "Full guardianship" means a guardianship that grants the guardian all powers available under this Act.

10. Guardian. "Guardian" means a person appointed by a court to make decisions with respect to the personal affairs of an individual. "Guardian" includes a coguardian but does not include a guardian ad litem.

11. Guardian ad litem. "Guardian ad litem" means a person appointed to inform the court about, and to represent, the needs and best interest of an individual.

12. Individual subject to conservatorship. "Individual subject to conservatorship" means an adult or minor for whom a conservator has been appointed.

13. Individual subject to guardianship. "Individual subject to guardianship" means an adult or minor for whom a guardian has been appointed.

14. Less restrictive alternative. "Less restrictive alternative" means an approach to meeting an individual's needs that restricts fewer rights than would the appointment of a guardian or conservator. "Less restrictive alternative" includes supported decision making, appropriate technological assistance, appointment of an agent by the individual, including appointment under a power of attorney for health care or power of attorney for finances, or appointment of a representative payee.

15. Letters of office. "Letters of office" means judicial certification of guardianship or conservatorship.

16. Limited conservatorship. "Limited conservatorship" means a conservatorship that grants the conservator less than all powers available under this Act, grants powers over only certain property or otherwise restricts the powers of the conservator.

17. Limited guardianship. "Limited guardianship" means a guardianship that grants the guardian less than all powers available under this Act or otherwise restricts the powers of the guardian.

18. Minor. "Minor" means an unemancipated individual who is under 18 years of age.

19. Minor subject to conservatorship. "Minor subject to conservatorship" means a minor for whom a conservator has been appointed under this Act.

20. Minor subject to guardianship. "Minor subject to guardianship" means a minor for whom a guardian has been appointed under this Act.

21. Parent. "Parent" means a person who has established a parent-child relationship with the child under Title 19-A, chapter 61 and whose parental rights have not been terminated.

22. Person. "Person" means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency or instrumentality or other legal entity.

23. Property. "Property" means anything that may be the subject of ownership and includes both real and personal property, tangible and intangible, or any interest therein.

24. Protective arrangement instead of conservatorship. "Protective arrangement instead of conservatorship" means a court order entered under section 5-503.

25. Protective arrangement instead of guardianship. "Protective arrangement instead of guardianship" means a court order entered under section 5-502.

26. Protective arrangement instead of guardianship or conservatorship. "Protective arrangement instead of guardianship or conservatorship" means a court order entered under Part 5, including an order authorizing a single transaction or more than one related transaction.

27. Record. "Record," used as a noun, means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

28. Respondent. "Respondent" means an individual for whom appointment of a guardian or conservator or a protective arrangement instead of guardianship or conservatorship is sought.

29. Sign. "Sign" means, with present intent to authenticate or adopt a record:

A. To execute or adopt a tangible symbol; or

B. To attach to or logically associate with the record an electronic symbol, sound or process.

30. State. "State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States. "State" includes an Indian tribe or band recognized by federal law or formally acknowledged by a state.

31. Suitable. "Suitable," with respect to a guardian for a minor, means that the guardian can provide a safe and appropriate residence for the minor, understands and is prepared to follow the terms of the appointment and understands and can address the minor's needs and protect the minor from harm.

32. Supported decision making. "Supported decision making" means assistance from one or more persons of an individual's choosing:

A. In understanding the nature and consequences of potential personal and financial decisions that enables the individual to make the decisions; and

B. When consistent with the individual's wishes, in communicating a decision once it is made.

§ 5-103. Facility of transfer

1. Transfer of money or personal property to minor. Unless a person required to transfer money or personal property to a minor knows that a conservator has been appointed or that a proceeding for appointment of a conservator of the estate of the minor is pending, the person may do so, as to an amount or value not exceeding $10,000 a year, by transferring it to:

A. A person who has the care and custody of the minor and with whom the minor resides;

B. A guardian of the minor;

C. A custodian under the Maine Uniform Transfers to Minors Act;

D. A financial institution as a deposit in an interest-bearing account or certificate in the sole name of the minor and giving notice of the deposit to the minor; or

E. The minor, if married or emancipated.

2. Responsibility for proper application. A person who transfers money or property in compliance with this section is not responsible for its proper application.

3. For benefit of minor; no personal financial benefit. A guardian or other person who receives money or property for a minor under subsection 1, paragraph A or B may apply it only to the support, care, education, health and welfare of the minor and may not derive a personal financial benefit, but may be reimbursed for necessary expenses for the benefit of the minor. Any excess must be preserved for the future support, care, education, health and welfare of the minor, and any balance must be transferred to the minor when the minor becomes an adult or is otherwise emancipated.

§ 5-104. Subject matter jurisdiction

1. Jurisdiction; minors. Except to the extent that jurisdiction is precluded by the Uniform Child Custody Jurisdiction and Enforcement Act and Title 4, section 152, subsection 5-A, the court has jurisdiction over a guardianship for a minor domiciled or present in this State. The court has jurisdiction over a conservatorship or protective arrangement instead of conservatorship for a minor domiciled in or having property located in this State.

2. Jurisdiction; adults. The court has jurisdiction over a guardianship, a conservatorship and an order for a protective arrangement instead of guardianship or conservatorship for an adult as provided in the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, Part 6.

3. Exclusive or concurrent jurisdiction. After service of notice in a proceeding seeking a guardianship, conservatorship or protective arrangement instead of guardianship or conservatorship and until termination of the proceeding, the court in which the petition is filed has:

A. Exclusive jurisdiction to determine the need for a guardianship, conservatorship or protective arrangement;

B. Exclusive jurisdiction to determine how property of the respondent that is subject to the law of this State must be managed, expended or distributed to or for the use of the respondent, an individual who is dependent in fact on the respondent or other claimant;

C. Concurrent jurisdiction to determine the validity of a claim against the respondent or property of the respondent or a question of title concerning the property; and

D. If a guardian or conservator is appointed, exclusive jurisdiction over issues related to administration of the guardianship or conservatorship.

4. Exclusive and continuing jurisdiction. A court that appoints a guardian or conservator, or authorizes a protective arrangement instead of guardianship or conservatorship, has exclusive and continuing jurisdiction over the proceeding until the court terminates the proceeding or the appointment or protective arrangement expires by its terms.

§ 5-105. Transfer of proceeding

1. Guardianship or conservatorship subject to transfer provisions. This section does not apply to a guardianship or conservatorship for an adult that is subject to the transfer provisions of Part 6, subpart 3.

2. Transfer if serves best interest of individual. After the appointment of a guardian or conservator, the court that made the appointment may transfer the proceeding to a court in another county in this State or to another state if transfer will serve the best interest of the individual subject to the guardianship or conservatorship.

3. Proceeding pending in another state or foreign country. If a proceeding for a guardianship or conservatorship is pending in another state or a foreign country and a petition for guardianship or conservatorship is filed in a court in this State, the court shall notify the court in the other state or foreign country and, after consultation with that court, assume or decline jurisdiction, whichever is in the best interest of the respondent.

4. Petition for appointment in this State. A guardian or conservator appointed in another state or country may petition the court for appointment as a guardian or conservator in this State if jurisdiction in this State is or will be established. The appointment may be made on proof of appointment in the other state or foreign country and presentation of a certified copy of the part of the court record in the other state or country specified by the court in this State.

5. Notice; appointment unless not in best interest of respondent. Notice of hearing on a petition under subsection 4, together with a copy of the petition, must be given to the respondent, if the respondent is 14 years of age or older at the time of the hearing, and to the persons that would be entitled to notice if the procedures for appointment of a guardian or conservator under this Act were applicable. The court shall make the appointment in this State unless it determines that the appointment would not be in the best interest of the respondent.

6. Copy of order of appointment. Not later than 14 days after appointment under subsection 5, the guardian or conservator shall give a copy of the order of appointment to the individual subject to guardianship or conservatorship, if the individual is 14 years of age or older, and to all persons given notice of the hearing on the petition.

§ 5-106. Venue

1. Guardianship proceeding for minor. Venue for a guardianship proceeding for a minor is in:

A. The county or division of this State in which the minor, the petitioner or a parent or guardian of the child resides or is present at the time the proceeding commences; or

B. The county or division of this State where another proceeding concerning the custody and parental rights of the minor is pending.

2. Guardianship proceeding or protective arrangement for adult. Venue for a guardianship proceeding or protective arrangement instead of guardianship for an adult is in:

A. The county of this State in which the respondent resides;

B. If the respondent has been admitted to an institution by order of a court of competent jurisdiction, the county in which the court is located; or

C. In a proceeding for appointment of an emergency guardian of an adult, the county in which the respondent is present.

3. Conservatorship proceeding or protective arrangement. Venue for a conservatorship proceeding or protective arrangement instead of conservatorship is in:

A. The county of this State in which the respondent resides, whether or not a guardian has been appointed in another county or another jurisdiction; or

B. If the respondent does not reside in this State, any county of this State in which property of the respondent is located.

4. Proceedings in more than one county. If proceedings under this Act are brought in more than one county in this State, the court of the county in which the first proceeding is brought has the exclusive right to proceed unless the court determines venue is properly in another court or the interest of justice otherwise requires transfer of the proceeding.

§ 5-107. Practice in court

1. Rules. Except as otherwise provided in this Act, the Maine Rules of Probate Procedure, the Maine Rules of Civil Procedure and the Maine Rules of Evidence, including rules concerning appellate review, govern a proceeding under this Act.

2. Consolidation. If proceedings under this Act for the same individual are commenced or pending in the same court, the proceedings may be consolidated.

§ 5-108. Letters of office

1. Guardian; letters of office. On a guardian's filing of an acceptance of appointment, the court shall issue appropriate letters of office.

2. Conservator; letters of office. On a conservator's filing of an acceptance of appointment and filing of any required bond or compliance with any other asset-protection arrangement required by the court, the court shall issue appropriate letters of office.

3. Limitations stated. Limitations on the powers of the guardian or conservator or on the property subject to conservatorship must be stated in the letters of office.

4. Limitations at any time; new letters of office; notice. Upon request or sua sponte, the court at any time may limit the powers conferred on the guardian or conservator. The court shall issue new letters of office to reflect the limitation. The court shall give notice of the limitation to the guardian or conservator, the individual subject to guardianship or conservatorship, each parent of a minor subject to guardianship or conservatorship and any other person as the court determines.

§ 5-109. Effect of acceptance of appointment

A guardian or conservator that accepts appointment submits personally to the jurisdiction of the court in any proceeding relating to the guardianship or conservatorship.

§ 5-110. Coguardian; coconservator

1. Appointment at any time. The court at any time may appoint a coguardian or coconservator to serve immediately or when a designated future event occurs.

2. Acceptance of appointment. A coguardian or coconservator appointed to serve immediately may act when the coguardian or coconservator files an acceptance of appointment.

3. Service upon designated future event. A coguardian or coconservator appointed to serve when a designated future event occurs may act when:

A. The designated event occurs; and

B. The coguardian or coconservator files an acceptance of appointment.

4. Joint decisions. Unless an order of appointment under subsection 1 or subsequent order states otherwise, coguardians or coconservators shall make decisions jointly.

§ 5-111. Judicial appointment of successor guardian or successor conservator

1. Appointment of successor by court. The court at any time may appoint a successor guardian or successor conservator to serve immediately or when a designated future event occurs.

2. Petition to appoint successor. A person entitled under section 5-202 or 5-302 to petition the court to appoint a guardian may petition the court to appoint a successor guardian. A person entitled under section 5-402 to petition the court to appoint a conservator may petition the court to appoint a successor conservator.

3. Service upon designated future event. A successor guardian or successor conservator appointed to serve when a designated future event occurs may act as guardian or conservator if:

A. The designated event occurs; and

B. The successor guardian or successor conservator files an acceptance of appointment.

4. Succeeds to powers. A successor guardian or successor conservator succeeds to the predecessor's powers unless otherwise provided by the court.

§ 5-112. Effect of death, removal or resignation of guardian or conservator

1. Termination. Appointment of a guardian or conservator terminates on the death or removal of the guardian or conservator or when the court approves a resignation of the guardian or conservator under subsection 2.

2. Petition to resign; approval. A guardian or conservator must petition the court to resign. The petition may include a request that the court appoint a successor. Resignation of a guardian or conservator is effective on the date the resignation is approved by the court.

3. Liability. Death, removal or resignation of a guardian or conservator does not affect liability for a previous act or the obligation to account for an action taken on behalf of the individual subject to guardianship or conservatorship or to account for the individual's money or other property.

§ 5-113. Notice of hearing

1. Notice by movant. If notice of a hearing under this Act is required, the movant shall give notice of the date, time and place of the hearing to the person to be notified unless otherwise ordered by the court for good cause. Except as otherwise provided in this Act, notice must be given in compliance with the Maine Rules of Probate Procedure, Rule 4 or the Maine Rules of Civil Procedure, Rule 4 at least 14 days before the hearing.

2. Proof of notice. Proof of notice of a hearing under this Act must be made before or at the hearing and filed in the proceeding.

3. Type size; plain language. Notice of a hearing under this Act must be in at least 16-point type, in plain language and, to the extent feasible, in a language in which the recipient is proficient.

§ 5-114. Waiver of notice

1. Waiver by person. Except as otherwise provided in subsection 2, a person may waive notice under this Act in a record signed by the person or the person's attorney and filed in the proceeding.

2. Waiver prohibited. A respondent, an individual subject to guardianship, an individual subject to conservatorship, an individual subject to a protective arrangement instead of guardianship or conservatorship, an appointed guardian or an appointed conservator may not waive notice under this Act.

§ 5-115. Guardian ad litem

At any stage of a proceeding under this Act, the court may appoint a guardian ad litem for an individual to identify and represent the individual's best interest or perform other duties if the court determines the individual's interest otherwise would not be adequately represented. If a conflict of interest or potential conflict of interest does not exist, a guardian ad litem may be appointed to represent multiple individuals or interests. The guardian ad litem may not be the same individual as the attorney representing the respondent. The court shall state on the record the duties of the guardian ad litem and the reasons for the appointment, as well as responsibility for payment of the guardian ad litem fees.

§ 5-116. Request for notice

A person that is interested in the welfare of a respondent, individual subject to guardianship or conservatorship or individual subject to a protective arrangement instead of guardianship or conservatorship and that is not otherwise entitled to notice under this Act may file a request with the court for notice. The court shall send or deliver a copy of the request to the guardian, to the custodian if one has been appointed and to the individual who is subject to the guardianship, conservatorship or protective arrangement. The recipient of the notice may file an objection within 60 days. If an objection is filed, the court shall hold a hearing on the request. If the court approves the request, the court shall give notice of the approval to the guardian or conservator if one has been appointed or to the respondent if no guardian or conservator has been appointed. The request must include a statement showing the interest of the person making it and the address of the person or an attorney for the person to whom notice is to be given.

§ 5-117. Disclosure of bankruptcy or criminal history

1. Disclosure; petition. As part of the petition to be appointed a guardian or conservator, a person shall disclose to the court whether the person:

A. Is or has been a debtor in a bankruptcy, insolvency or receivership proceeding; or

B. Has been convicted of:

(1) A felony;

(2) A crime involving dishonesty, neglect, violence or use of physical force; or

(3) Any other crime relevant to the functions the individual would assume as guardian or conservator.

2. Agent; convictions; approval. A guardian or conservator may not engage an agent the guardian or conservator knows has been convicted of a felony, a crime involving dishonesty, neglect, violence or use of physical force or any other crime relevant to the functions the agent is being engaged to perform promptly without prior approval of the court.

3. Finances manager agent; debtor; disclosure. If a conservator engages or anticipates engaging an agent to manage finances of the individual subject to conservatorship and knows the agent is or has been a debtor in a bankruptcy, insolvency or receivership proceeding, the conservator promptly shall disclose that knowledge to the court.

§ 5-118. Multiple appointments or nominations

If a respondent or other person makes more than one appointment or nomination of a guardian or a conservator, the latest in time governs.

§ 5-119. Compensation and expenses; in general

1. Attorney for respondent. Unless otherwise compensated for services rendered, an attorney for a respondent in a proceeding under this Act is entitled to reasonable compensation and reimbursement of reasonable expenses from the property of the respondent.

2. Attorney or other person. Unless otherwise compensated for services rendered, an attorney or other person whose services resulted in an order beneficial to an individual subject to guardianship or conservatorship or beneficial to an individual for whom a protective arrangement instead of guardianship or conservatorship was ordered is entitled to reasonable compensation and reimbursement of reasonable expenses from the property of the individual.

3. Court review. After notice to all interested persons, on petition of an interested person, the propriety of employment of any person by a conservator or guardian, including any attorney, accountant, investment advisor or other specialized agent or assistant, and the reasonableness of the compensation of any person so employed may be reviewed by the court. Any person who has received excessive compensation or reimbursement of inappropriate expenses for services rendered may be ordered to make appropriate refunds. The factors set forth in section 3-721, subsection 2 must be considered as guides in determining the reasonableness of compensation under this section.

4. Costs assessed against petitioner. If the court dismisses a petition under this Act and determines the petition was filed in bad faith, the court may assess the cost of any court-ordered professional evaluation or visitor against the petitioner.

§ 5-120. Liability of guardian or conservator for act of individual subject to guardianship or conservatorship

A guardian or conservator is not personally liable to a 3rd person for the act of an individual subject to guardianship or conservatorship solely by reason of the guardianship or conservatorship.

§ 5-121. Petition after appointment for instructions or ratification

1. Petition. A guardian or conservator may petition the court for instruction concerning fiduciary responsibility or ratification of a particular act.

2. Instruction or order. On notice and hearing on a petition under subsection 1, the court may give an appropriate instruction and enter any appropriate order.

§ 5-122. Third-party acceptance of authority of guardian or conservator

1. Refusal to recognize authority required. A person must refuse to recognize the authority of a guardian or conservator to act on behalf of an individual subject to guardianship or conservatorship if:

A. The person has actual knowledge or a reasonable belief that the guardian's or conservator's letters of office are invalid or that the guardian or conservator is exceeding or improperly exercising authority granted by the court; or

B. The person has actual knowledge that the individual subject to guardianship or conservatorship is subject to physical or financial abuse, neglect, exploitation or abandonment by the guardian or conservator or a person acting for or with the guardian or conservator.

2. Refusal to recognize authority discretionary. A person may refuse to recognize the authority of a guardian or conservator to act on behalf of an individual subject to guardianship or conservatorship if:

A. The guardian's or conservator's proposed action would be inconsistent with this Act; or

B. The person makes, or has actual knowledge that another person has made, a report to adult protective services or child protective services stating a good faith belief that the individual subject to guardianship or conservatorship is subject to physical or financial abuse, neglect, exploitation or abandonment by the guardian or conservator or a person acting for or with the guardian or conservator.

3. Report refusal to court. A person that refuses to accept the authority of a guardian or conservator in accordance with subsection 2 shall report the refusal and the reason for refusal to the court. The court on receiving a report shall consider whether removal of the guardian or conservator or other action is appropriate.

4. Petition to require acceptance. A guardian or conservator may petition the court to require a 3rd party to accept a decision made by the guardian or conservator on behalf of the individual subject to guardianship or conservatorship.

§ 5-123. Use of agent by guardian or conservator

1. Delegation consistent with plan and fiduciary duty. Except as otherwise provided in subsection 3, a guardian or conservator may delegate a power to an agent that a prudent guardian or conservator of comparable skills could prudently delegate under the circumstances if the delegation is consistent with the guardian's or conservator's plan and fiduciary duty.

2. Delegating a power. In delegating a power under subsection 1, the guardian or conservator shall exercise reasonable care, skill and caution in:

A. Selecting the agent;

B. Establishing the scope and terms of the agent's work in accordance with the guardian's or conservator's plan;

C. Monitoring the agent's performance and compliance with the delegation; and

D. Redressing action or inaction of the agent that would constitute a breach of the guardian's or conservator's duties if performed by the guardian or conservator.

3. Delegation limitation. A guardian or conservator may not delegate all powers to an agent.

4. Agent performing a delegated power. In performing a power delegated under this section, an agent shall:

A. Exercise reasonable care to comply with the terms of the delegation and use reasonable care in the performance of the delegated power; and

B. If the agent has been delegated the power to make a decision on behalf of the individual subject to guardianship or conservatorship, in making the decision use the same decision-making standard the guardian or conservator would be required to use in making the decision.

5. Jurisdiction of court. By accepting a delegation of a power from a guardian or conservator under this section, an agent submits to the jurisdiction of the courts of this State in an action involving the agent's performance as agent.

6. Liability. A guardian or conservator that delegates and monitors a power in compliance with this section is not liable for the decisions or actions of the agent.

§ 5-124. Temporary substitute guardian or conservator

1. Temporary substitute guardian. The court may appoint a temporary substitute guardian for a period not longer than 6 months for an individual subject to guardianship if:

A. A proceeding to remove an existing guardian is pending; or

B. The court finds an existing guardian is not effectively performing the guardian's duties and the welfare of the individual requires immediate action.

2. Temporary substitute conservator. The court may appoint a temporary substitute conservator for a period not longer than 6 months for an individual subject to conservatorship if:

A. A proceeding to remove an existing conservator is pending; or

B. The court finds that an existing conservator is not effectively performing the conservator's duties and the welfare of the individual or the conservatorship estate requires immediate action.

3. Powers. Except as otherwise ordered by the court, a temporary substitute guardian or temporary substitute conservator appointed under this section has the powers stated in the order of appointment of the guardian or conservator. The authority of an existing guardian or conservator is suspended for as long as the temporary substitute guardian or conservator has authority.

4. Notice. The court shall give notice of appointment of a temporary substitute guardian or temporary substitute conservator under this section not later than 5 days after the appointment to:

A. The individual subject to guardianship or conservatorship;

B. The affected guardian or conservator; and

C. In the case of a minor, each parent of the minor and any person currently having custody or care of the minor.

5. Removal. The court may remove a temporary substitute guardian or temporary substitute conservator appointed under this section at any time. The temporary substitute guardian or temporary substitute conservator shall make any report the court requires.

6. Application. Except as otherwise provided in this section, the provisions of this Act:

A. Concerning a guardian for a minor apply to a temporary substitute guardian for a minor;

B. Concerning a guardian for an adult apply to a temporary substitute guardian for an adult; and

C. Concerning a conservator apply to a temporary substitute conservator.

§ 5-125. Registration of order; effect

1. Registration of guardianship order. If a guardian has been appointed for an individual in another state and a petition for guardianship of the individual is not pending in this State, the guardian appointed in the other state, after giving notice to the appointing court, may register the guardianship order in this State by filing as a foreign judgment, in a court of an appropriate county of this State, certified copies of the order and letters of office.

2. Registration of conservatorship order. If a conservator is appointed in another state and a petition for conservatorship is not pending in this State, the conservator appointed in the other state, after giving notice to the appointing court, may register the conservatorship in this State by filing as a foreign judgment, in a court of a county in which property belonging to the individual subject to conservatorship is located, certified copies of the order of conservatorship, letters of office and any bond or other asset-protection arrangement required by the court.

3. Exercise of powers. On registration of a guardianship or conservatorship order from another state, the guardian or conservator may exercise in this State all powers authorized in the order except as prohibited by the law of this State other than this Act. If the guardian or conservator is not a resident of this State, the guardian or conservator may maintain an action or proceeding in this State subject to any condition imposed by this State on a nonresident party.

4. Enforcement of registered order. The court may grant any relief available under this Act and law of this State other than this Act to enforce a registered order.

§ 5-126. Grievance against guardian or conservator

1. File a grievance with the court. An individual who is subject to guardianship or conservatorship, or a person interested in the welfare of an individual subject to guardianship or conservatorship, who reasonably believes a guardian or conservator is breaching the guardian's or conservator's fiduciary duty or otherwise acting in a manner inconsistent with this Act may file a grievance with the court. The grievance must be in writing or another record.

2. Procedure upon receiving grievance. Subject to subsection 3, after receiving a grievance under subsection 1, the court:

A. Shall review the grievance and, if necessary to determine the appropriate response to the grievance, court records related to the guardianship or conservatorship;

B. Shall schedule a hearing if the individual subject to guardianship or conservatorship is an adult and the grievance supports a reasonable belief that:

(1) Removal of the guardian and appointment of a successor may be appropriate in accordance with section 5-318;

(2) Termination or modification of the guardianship may be appropriate under section 5-319;

(3) Removal of the conservator and appointment of a successor may be appropriate under section 5-430;

(4) Termination or modification of the conservatorship may be appropriate under section 5-431; and

C. May take any action supported by the grievance and record, including:

(1) Ordering the guardian or conservator to provide to the court a report, accounting, inventory, updated plan or other information;

(2) Appointing a guardian ad litem;

(3) Appointing an attorney for the individual subject to guardianship or conservatorship; or

(4) Scheduling a hearing.

3. Similar grievance filed within 6 months. The court may decline to proceed under subsection 2 if a similar grievance was made within the preceding 6 months and the court followed the procedures of subsection 2 in considering the grievance.

§ 5-127. Delegation by parent or guardian

1. Delegation; power of attorney. A parent or a guardian of a minor or individual subject to guardianship, by a power of attorney, may delegate to another person, for a period not exceeding 12 months, any power regarding care, custody or property of the minor or individual subject to guardianship, except the power to consent to marriage, adoption or termination of parental rights to the minor. A delegation of powers by a court-appointed guardian becomes effective only when the power of attorney is filed with the court. A delegation of powers under this section does not deprive the parent or guardian of any parental or legal authority regarding the care and custody of the minor or individual subject to guardianship. A delegation of powers under this section is subject to the same court supervision that applies to temporary substitute guardians as described in section 5-124, subsection 5. Any delegation under this section may be revoked or amended by the appointing parent or guardian in writing and delivered to the person to whom the powers were delegated and to other interested persons.

2. National Guard or Reserves; extension. Notwithstanding subsection 1, unless otherwise stated in the power of attorney, if the parent or guardian is a member of the National Guard or Reserves of the United States Armed Forces under an order to active duty for a period of more than 30 days, a power of attorney that would otherwise expire is automatically extended until 30 days after the parent or guardian is no longer under that active duty order or until an order of the court so provides.

This subsection applies only if the parent's or guardian's service is in support of:

A. An operational mission for which members of the reserve components have been ordered to active duty without their consent; or

B. Forces activated during a period of war declared by the United States Congress or a period of national emergency declared by the President of the United States or the United States Congress.

3. Temporary care of minor. This subsection applies when a parent or guardian executes a power of attorney under subsection 1 for the purpose of providing for the temporary care of a minor.

A. The execution of a power of attorney under subsection 1, without other evidence, does not constitute abandonment, abuse or neglect. A parent or guardian of a minor may not execute a power of attorney with the intention of permanently avoiding or divesting the parent or guardian of parental and legal responsibility for the care of the minor. Upon the expiration or termination of the power of attorney, the minor must be returned to the custody of the parent or guardian as soon as reasonably possible unless otherwise ordered by the court.

B. Unless the power of attorney is terminated, the agent named in the power of attorney shall exercise parental or legal authority on a continuous basis without compensation from the State for the duration of the power of attorney authorized by subsection 1. Nothing in this subsection disqualifies the agent from applying for and receiving benefits from any state or federal program of assistance for the minor or the agent. Nothing in this subsection prevents individuals or religious, community or other charitable organizations from voluntarily providing the agent with support related to the care of the minor while the minor is in the temporary care of the agent.

C. A minor may not be considered placed in foster care or in any way a ward of the State by virtue of the parent's or guardian's execution of a power of attorney authorized by subsection 1. The agent named in the power of attorney may not be considered a family foster home by virtue of the parent's or guardian's execution of a power of attorney authorized by subsection 1 and is not subject to any laws regarding the licensure or regulation of family foster homes unless licensed as a family foster home. Nothing in this subsection disqualifies the agent from being or becoming a family foster home licensed by the State or prevents the placement of the minor in the agent's care if the minor enters state custody.

4. Background check. An organization, other than an organization whose primary purpose is to provide free legal services or to provide hospital services, that is exempt from federal income taxation under Section 501(a) of the United States Internal Revenue Code of 1986 as an organization described by Section 501(c)(3) and that assists parents or guardians with the process of executing a power of attorney for the temporary care of a minor shall ensure that a background check is conducted for the agent and any adult members of the agent's household, whether by completing the background check directly or by verifying that a current background check has already been conducted. The background check must include the following sources, and the results must be shared with the parent or guardian and the proposed agent:

A. A screening for child and adult abuse, neglect or exploitation cases in the records of the Department of Health and Human Services; and

B. A criminal history record check that includes information obtained from the Federal Bureau of Investigation.

The organization shall maintain records on the training and background checks of agents, including the content and dates of training and full transcripts of background checks, for a period of not less than 5 years after the minor attains 18 years of age. The organization shall make the records available to a parent or guardian executing a power of attorney under this section and to the ombudsman under Title 22, section 4087-A and any local, state or federal authority conducting an investigation involving the agent, the parent or guardian or the minor.

Without regard to whether an organization is included or excluded by the terms of this subsection, nothing in this section changes the restrictions on the unauthorized practice of law as provided in Title 4, section 807 with regard to the preparation of powers of attorney.

5. Disqualification of agent. An employee or volunteer for an organization described in subsection 4 may not further assist with a process that results in the completion of a power of attorney for the temporary care of a minor if the background checks conducted pursuant to subsection 4, paragraphs A and B disclose any substantiated allegations of child abuse, neglect or exploitation or any crimes that would disqualify the agent from becoming a licensed family foster home in the State.

6. Penalties. The following penalties apply to violations of this section.

A. An organization that knowingly fails to perform or verify the background checks or fails to share the background check information as required by subsection 4 is subject to a civil penalty not to exceed $5,000, payable to the State and recoverable in a civil action.

B. An organization or an employee or volunteer of an organization that continues to assist a parent, guardian or agent in completing a power of attorney under subsection 4 if the background checks conducted pursuant to subsection 4 disclose any substantiated allegations of child abuse, neglect or exploitation or any crimes that would disqualify the agent from becoming a licensed family foster home is subject to a civil penalty not to exceed $5,000, payable to the State and recoverable in a civil action.

C. An organization or an employee or volunteer of an organization that knowingly fails to maintain records or to disclose information as required by subsection 4 is subject to a civil penalty not to exceed $5,000, payable to the State and recoverable in a civil action.

PART 2

GUARDIANSHIP OF MINOR

§ 5-201. Appointment and status of guardian

A person becomes a guardian of a minor by parental appointment or upon appointment by the court. The guardianship status continues until terminated, without regard to the location of the guardian or the minor. This section does not apply to permanency guardians appointed in District Court child protective proceedings under Title 22, section 4038-C. If a minor has a permanency guardian, the court may not appoint another guardian without leave of the District Court in which the child protective proceeding is pending.

§ 5-202. Parental appointment of guardian

1. Appointment by parent. A guardian may be appointed by will or other signed writing by a parent for any minor child the parent has or may have in the future. The appointment may specify the desired limitations on the powers to be given to the guardian. The appointing parent may revoke or amend the appointment before confirmation by the court.

2. Petition to confirm selection, terminate right to object. Upon petition of an appointing parent and a finding that the appointing parent will likely become unable to care for the child within 2 years, and after notice as provided in section 5-205, subsection 1, the court, before the appointment becomes effective, may confirm the parent's selection of a guardian and terminate the rights of others to object.

3. Appointment effective. Subject to section 5-203, the appointment of a guardian becomes effective upon the appointing parent's death, an adjudication that the parent is an incapacitated person or a written determination by a physician who has examined the parent that the parent is no longer able to care for the child, whichever first occurs.

4. Acceptance of appointment. The guardian becomes eligible to act upon the filing of an acceptance of appointment, which must be filed within 30 days after the guardian's appointment becomes effective. The guardian shall:

A. File the acceptance of appointment and a copy of the will with the court of the county in which the will was or could be probated or, in the case of another appointing instrument, file the acceptance of appointment and the appointing instrument with the court of the county in which the minor resides or is present; and

B. Give written notice of the acceptance of appointment to every parent, if living, the minor, if the minor has attained 14 years of age, and a person other than the parent having care and custody of the minor.

5. Notice of right to object. Unless the appointment was previously confirmed by the court, the notice given under subsection 4, paragraph B must include a statement of the right of those notified to terminate the appointment by filing a written objection in the court as provided in section 5-203.

6. Petition to confirm appointment. Unless the appointment was previously confirmed by the court, within 30 days after filing the notice and the appointing instrument, a guardian shall petition the court for confirmation of the appointment, giving notice in the manner provided in section 5-205, subsection 1.

7. Parental rights not superseded; priority. The appointment of a guardian by a parent does not supersede the parental rights of any parent. If all parents are dead or have been adjudged incapacitated persons, an appointment by the last parent who died or was adjudged incapacitated has priority. An appointment by a parent that is effected by filing the guardian's acceptance under a will probated in the state of the testator's domicile is effective in this State.

8. Relation back of powers. The powers of a guardian who timely complies with the requirements of subsections 4 and 6 relate back to give acts by the guardian that are of benefit to the minor and occurred on or after the date the appointment became effective the same effect as those that occurred after the filing of the acceptance of the appointment.

9. Termination of authority. The authority of a guardian appointed under this section terminates upon the first to occur of the appointment of a guardian by the court or the giving of written notice to the guardian of the filing of an objection pursuant to section 5-203.

§ 5-203. Objection by minor or others to parental appointment

Until the court has confirmed an appointee under section 5-202, a minor who is the subject of an appointment by a parent and who has attained 14 years of age, the other parent or a person other than a parent or guardian having care or custody of the minor may prevent or terminate the appointment at any time by filing a written objection in the court in which the appointing instrument is filed and giving notice of the objection to the guardian and any other persons entitled to notice of the acceptance of the appointment. An objection may be withdrawn and if withdrawn is of no effect. The objection does not preclude judicial appointment of the person selected by the parent if all other requirements for appointment, including appointment over the objection of a parent, are met. The court may treat the filing of an objection as a petition for the appointment of an emergency or interim guardian under section 5-204 and proceed accordingly.

§ 5-204. Judicial appointment of guardian; conditions for appointment

1. Petition. A minor or a person interested in the welfare of a minor may petition for appointment of a guardian.

2. Appointment. The court may appoint a guardian for a minor if the court finds the appointment is in the best interest of the minor, finds the proposed guardian is suitable and finds:

A. That the parents consent;

B. That all parental rights have been terminated; or

C. By clear and convincing evidence that the parents are unwilling or unable to exercise their parental rights, including but not limited to:

(1) The parent is currently unwilling or unable to meet the minor's needs and that will have a substantial adverse effect on the minor's well-being if the minor lives with the parent; or

(2) The parent has failed, without good cause, to maintain a parental relationship with the minor, including but not limited to failing to maintain regular contact with the minor for a length of time that evidences an intent to abandon the minor.

3. Priority for appointment. If a guardian is appointed by a parent pursuant to section 5-202 and the appointment has not been prevented or terminated under section 5-203, that appointee has priority for appointment. However, the court may proceed with another appointment upon a finding that the appointee under section 5-202 has failed to accept the appointment within 30 days after notice of the guardianship proceeding.

4. Appointment of a guardian on an emergency basis. If the court finds that following the procedures of this Part will likely result in substantial harm to a minor's health or safety and that no other person appears to have authority to act in the circumstances, the court, on appropriate petition, may appoint an emergency guardian for the minor. The duration of the guardian's authority may not exceed 90 days, and the guardian may exercise only the powers specified in the order. Reasonable notice of the time and place of the hearing on the petition for appointment of an emergency guardian must be given to the minor, if the minor has attained 14 years of age, to each living parent of the minor and a person having care or custody of the minor, if other than a parent. The court may dispense with the notice if it finds from affidavit or testimony that the minor will be substantially harmed before a hearing can be held on the petition. If the guardian is appointed without notice, notice of the appointment must be given within 48 hours after the appointment. The court shall schedule a hearing on the appointment of the guardian within 14 days but not less than 7 days after issuance of the order appointing the guardian, except that a parent may request that the hearing take place sooner. The petitioner bears the burden of proof on the appropriateness of the appointment pursuant to this section.

5. Child support. When appointing a guardian, including on an emergency or interim basis, the court's order must indicate whether there are any support orders involving the child presently in effect through judicial or administrative proceedings and the effect of the guardianship appointment on the orders. The court shall consider whether to order a parent to pay child support to the guardian in accordance with Title 19-A, Part 3. A guardian must be treated as a caretaker relative for computation of a parental support obligation pursuant to Title 19-A, section 2006, subsection 4. The court may reserve the question of support or decline to issue an order if it determines that an order for support is not warranted at the time of the appointment. When the Department of Health and Human Services provides child support enforcement services, the Commissioner of Health and Human Services may designate employees of the department who are not attorneys to represent the department in court if a hearing is held. The commissioner shall ensure that appropriate training is provided to all employees who are designated to represent the department under this subsection.

§ 5-205. Judicial appointment of guardian; procedure

1. Petition; notice of hearing. After a petition for appointment of a guardian is filed, the court shall schedule a hearing, and the petitioner shall give notice of the time and place of the hearing, together with a copy of the petition, to:

A. The minor, if the minor has attained 14 years of age and is not the petitioner;

B. Any person alleged to have had the primary care and custody of the minor during the 60 days before the filing of the petition;

C. Each living parent of the minor or, if there is none, the adult nearest in kinship who can be found;

D. Any person nominated as guardian by the minor if the minor has attained 14 years of age;

E. Any appointee of a parent whose appointment has not been prevented or terminated under section 5-203; and

F. Any guardian or conservator currently acting for the minor in this State or elsewhere.

If the court finds that receiving information from the Department of Health and Human Services may be necessary for the determination of any issue before the court, it may order a Department of Health and Human Services employee to attend the hearing and to provide information relevant to the proceeding. When receiving information by oral testimony that is confidential pursuant to Title 22, section 4008, the court shall close the proceeding and ensure that it is recorded. When receiving information contained in written or media records that is confidential pursuant to Title 22, section 4008, the court shall review those records in camera, weighing the confidentiality of such records against the necessity for counsel and the parties to have access to them, and enter an appropriate order regarding the scope and manner of access. The court, in its discretion, may take other measures necessary to preserve the confidentiality of the information received.

2. Appointment; other disposition. The court, after the hearing scheduled pursuant to subsection 1, shall make the appointment of a guardian if the court finds that venue is proper, the required notices have been given, the conditions of section 5-204, subsection 2 have been met and the best interest of the minor will be served by the appointment. In other cases, the court may dismiss the proceeding or make any other disposition of the matter that will serve the best interest of the minor.

3. Priority of minor's nominee. The court shall appoint a person or persons nominated by the minor, if the minor has attained 14 years of age, in accordance with the requirements of section 5-204.

4. Appointment of counsel. A nonconsenting parent whose parental rights have not been terminated is entitled to court-appointed legal counsel if indigent. In a contested action, the court may also appoint counsel for any indigent guardian or petitioner when a parent or legal custodian has counsel.

5. Attorney for a minor; notice to minor. If the court determines at any stage of the proceeding, before or after appointment, that the interests of the minor are or may be inadequately represented, the court may appoint an attorney to represent the minor, giving consideration to the choice of the minor if the minor has attained 14 years of age. A minor may appear with or through counsel, but the court is not restricted from requiring the minor to be present for some or all of a hearing or other proceeding. A minor 14 years of age or older must receive notice of any proceeding subsequent to the appointment of a guardian through the same means as required for any other party, and the minor may consent, object or otherwise participate in the proceeding.

6. Informed consent of parent. If the petition for guardianship is filed by or with the consent of a parent, the petition must include a consent signed by the parent verifying that the parent understands the nature of the guardianship and knowingly and voluntarily consents to the guardianship. If a parent informs the court after the petition has been filed that the parent wishes to consent to the guardianship, the court shall require the parent to sign the consent form at that time. The consent required by this section must be on a court form or substantially similar document.

7. Term or duration of order. The court may specify the term of the appointment based on the parties' agreement or the court's findings. The term may be extended or otherwise modified by agreement of the parties or after a hearing. If no term is specified, the appointment remains in place until modified or the occurrence of an event resulting in termination set forth in section 5-210.

If one of the parents of a minor is a member of the National Guard or the Reserves of the United States Armed Forces under an order to active duty for a period of more than 30 days, a guardianship that would otherwise expire is automatically extended until 30 days after the parent is no longer under those active duty orders or until an order of the court so provides as long as the parent's service is in support of:

A. An operational mission for which members of the reserve components have been ordered to active duty without their consent; or

B. Forces activated during a period of war declared by the United States Congress or a period of national emergency declared by the President of the United States or the United States Congress.

8. Interim order. Upon motion by a party or the court's initiative, and pursuant to an agreement of the parties or findings made after a hearing, the court may enter an interim order appointing a guardian for a period of time up to 6 months or pending the court's order after the scheduled final hearing on a petition for appointment, if such an order is necessary to provide for the minor's housing, health, education, medical or other essential needs prior to the hearing. Any interim order must meet the requirements of section 5-204 and this section, including notice, and may be extended or modified pursuant to an agreement of the parties or findings made after a hearing.

9. Mediation. The court may refer the parties to mediation at any time after a petition or motion is filed, if meditation services are available at a reasonable fee or no cost, and may require that the parties have made a good faith effort to mediate the issue before holding a hearing. If the court finds that any party failed to make a good faith effort to mediate, the court may order the parties to submit to mediation, dismiss the action or any part of the action, render a decision or judgment by default, assess attorney's fees and costs or impose any other sanction that is appropriate in the circumstances. The court may also impose an appropriate sanction upon a party's failure without good cause to appear for mediation after receiving notice of the scheduled time for mediation. An agreement reached by the parties through mediation on an issue must be reduced to writing, signed by the parties and presented to the court for approval as a court order.

10. Identifying information sealed. If a party alleges in an affidavit or a pleading under oath that the health, safety or liberty of a party or the minor would be jeopardized by disclosure of identifying information, including but not limited to the address of a party or the minor, the information must be sealed by the register or clerk and not disclosed to any other party or to the public unless the court orders the disclosure to be made after a hearing in which the court takes into consideration the health, safety or liberty of the party or minor and determines that the disclosure is in the interest of justice.

§ 5-206. Terms of order appointing guardian

1. Terms of order. An order appointing a guardian of a minor must include the following:

A. The reasons for the appointment of the guardian, including whether there was any agreement by the parties or findings after a hearing;

B. The powers and duties granted to the guardian, including those set forth in section 5-207;

C. The rights and responsibilities retained by the parent, as described in subsection 3;

D. The anticipated duration of the appointment, including whether it remains in place until a petition to modify or terminate and whether the parties agree to termination after a particular event, such as return from deployment;

E. A description of the process and standards for modification and termination; and

F. Notice of the court's authority to hold a hearing and find that a party has violated a part of the order and is in contempt and to order relief to the other party for the violations or contempt.

2. Other orders concerning minor. If any orders regarding custody or other parental rights with respect to a minor are in effect at the time of the appointment of a guardian of the minor, the order must refer to the orders and indicate the effect of the appointment on the rights and responsibilities set forth in the orders.

3. Rights and responsibilities retained by parent. An order appointing a guardian of a minor must specify whether the minor's parent retains any of the following rights and responsibilities after the appointment and, if any such rights or responsibilities are not retained, the reasons they are not retained:

A. A schedule of parent-child contact or a determination by the court that denial of parent-child contact is necessary to protect the physical safety or emotional well-being of the minor. The court may determine the reasonable frequency and duration of parent-child contact and may set conditions for parent-child contact that are in the best interest of the minor. Any schedule of contact must reflect any existing parent-child contact order in effect to the extent reasonably practicable and consistent with the court's findings or the agreement of the parties. The court may set forth specific conditions that must be satisfied by the parent prior to the start of some or all aspects of the contact schedule;

B. Access to records and information regarding the minor as provided under Title 19-A, section 1653, subsection 2, paragraph D, subparagraph (4);

C. Parental rights and responsibilities as described under Title 19-A, section 1501, subsection 5; and

D. Child support as defined in Title 19-A, section 1501, subsection 2.

4. Parent as coguardian. A parent may copetition and be appointed as a coguardian of the parent's minor child if the court determines a joint appointment with a nonparent is in the best interest of the minor and is made with the parent's consent.

§ 5-207. Duties of guardian

1. Guardian has duties and responsibilities of a parent. Except as otherwise limited by the court, a guardian of a minor has the duties and responsibilities of a parent regarding the minor's support, care, education, health and welfare. A guardian shall act at all times in the best interest of the minor and exercise reasonable care, diligence and prudence.

2. Specific duties and responsibilities. A guardian shall:

A. Become or remain personally acquainted with the minor and maintain sufficient contact with the minor to know of the minor's capacities, limitations, needs, opportunities and physical and mental health;

B. Take reasonable care of the minor's personal effects and bring a protective proceeding if necessary to protect other property of the minor;

C. Expend money of the minor that has been received by the guardian for the minor's current needs for support, care, education, health and welfare;

D. Conserve any excess money of the minor for the minor's future needs, but if a conservator has been appointed for the estate of the minor, the guardian shall pay the money at least quarterly to the conservator to be conserved for the minor's future needs;

E. Report the condition of the minor and account for money and other assets in the guardian's possession or subject to the guardian's control, as ordered by the court on application of any person interested in the minor's welfare or as required by court rule; and

F. Inform the court of any change in the minor's custodial dwelling or address.

3. Reporting on the status of the minor. The court may require the guardian of a minor to submit regular status reports about the minor, to be submitted under oath or affirmation to the court and served on the parent and guardian ad litem, if still active, on an annual basis or under other conditions set by the court.

A. The court may require the status report to include specific information, including but not limited to the following to the extent applicable to the guardianship:

(1) The current address of the minor and each parent;

(2) The minor's health care and health needs, including any medical and mental health services the child received;

(3) The minor's educational needs and progress, including the name of the minor's school, day care or other early education program, the minor's grade level and the minor's educational achievements;

(4) Contact between the minor and the minor's parents, including the frequency and duration of the contact and whether it was supervised;

(5) How the parents have been involved in decision making for the minor;

(6) Whether the parents have provided any financial support for the minor;

(7) How the guardian has carried out the guardian's responsibilities and duties under the order of appointment;

(8) An accounting of any funds received on the minor's behalf;

(9) The minor's strengths, challenges and any other areas of concern; and

(10) Recommendations with supporting reasons as to whether the guardianship order should be continued, modified or terminated.

B. Before deciding whether to require status reports, the court shall consider whether reporting would create a substantial likelihood of harm to the health, safety or liberty of the minor.

C. The contents of status reports are confidential and may not be released to any nonparty except by court order.

D. A parent may petition the court to seek a status report from the guardian if one is not otherwise required. A person who is not a parent but is interested in the minor's welfare may petition the court to seek a status report based upon specific concerns about the minor's care.

E. Nothing in this subsection limits a court's authority to otherwise supervise the guardianship, including scheduling a status conference to address matters raised in a status report or to be held at a specified time after the entry of the order or appointing a guardian ad litem or visitor to conduct an investigation. The court shall accept any information submitted by a minor 14 years of age or older regarding the guardianship.

§ 5-208. Powers of guardian

1. Guardian has powers of a parent. Except as otherwise limited by the court, a guardian of a minor has the powers of a parent regarding the minor's support, care, education, health and welfare.

2. Specific powers. A guardian may:

A. Apply for and receive money for the support of the minor otherwise payable to the minor's parent, guardian or custodian under the terms of any statutory system of benefits or insurance or any private contract, devise, trust, conservatorship or custodianship;

B. If otherwise consistent with the terms of any order by a court of competent jurisdiction relating to custody of the minor, take custody of the minor and establish the minor's place of custodial dwelling, but may establish or move the minor's custodial dwelling outside the State only upon express authorization of the court;

C. If a conservator for the estate of a minor has not been appointed with existing authority, commence a proceeding, including an administrative proceeding, or take other appropriate action to compel a person to support the minor or to pay money for the benefit of the minor;

D. Except as limited by section 5-807, consent to medical or other care, treatment or service for the minor;

E. Consent to the marriage of the minor; and

F. If reasonable under all of the circumstances, delegate to the minor certain responsibilities for decisions affecting the minor's well-being.

3. Consent to adoption. The court may specifically authorize the guardian to consent to the adoption of the minor.

4. Powers of coguardians. If coguardians are appointed, the powers of the guardians are joint and several, unless limited by the appointing document.

§ 5-209. Rights and immunities of guardian

1. Reasonable compensation and reimbursement. A guardian is entitled to reasonable compensation for services as guardian and to reimbursement for room, board and clothing provided by the guardian to the minor, but only as approved by the court. If a conservator, other than the guardian or a person who is affiliated with the guardian, has been appointed for the estate of the minor, reasonable compensation and reimbursement to the guardian may be approved and paid by the conservator without order of the court.

2. Personal liability. A guardian need not use the guardian's personal funds for the minor's expenses. A guardian is not liable to a 3rd person for acts of the minor solely by reason of the guardianship. A guardian is not liable for injury to the minor resulting from the negligence or act of a 3rd person providing medical or other care, treatment or service for the minor except to the extent that a parent would be liable under the circumstances.

§ 5-210. Modification or termination of guardianship; other proceedings after appointment

1. Modification of guardianship order. A guardian of a minor, a parent of a minor, a person interested in the welfare of a minor or the minor, if 14 years of age or older, may file a motion asking the court to modify the terms of an order appointing a guardian or to take other action in the best interest of the minor as circumstances require. The motion must be filed with the court and served on all parties entitled to notice. Unless the motion specifies that is it filed with the consent of all parties entitled to notice, the matter must be set for hearing to determine whether there has been a substantial change in circumstances necessitating modification of the order and how the court should modify the order in furtherance of the best interest of the minor and the parent's rights. The court may identify certain requirements that must be met before specific provisions of the order are modified. A court may modify a term of a guardianship order as needed to grant relief to a party to address contempt or other failure to follow the order.

2. Termination of guardianship. A guardianship of a minor terminates upon the minor's death, adoption, emancipation, marriage or attainment of majority or as ordered by the court pursuant to this section.

3. Termination of appointment. The appointment of a guardian or conservator terminates upon the death, resignation or removal of the guardian or conservator or upon termination of the guardianship or conservatorship. A resignation of a guardian or conservator is effective when approved by the court. A parental or spousal appointment as guardian under an informally probated will terminates if the will is later denied probate in a formal proceeding. Termination of the appointment of a guardian or conservator does not affect the liability of either for previous acts or the obligation to account for money and other assets of the minor or protected person.

4. Petition for removal or permission to resign. A minor, if 14 years of age or older, a parent of the minor or a person interested in the welfare of the minor may petition for removal of a guardian on the ground that removal would be in the best interest of the minor or for other good cause. A guardian may petition for permission to resign. A petition for removal or permission to resign may include a request for appointment of a successor guardian.

5. Appointment of additional or successor guardian. The court may appoint an additional guardian at any time, to serve immediately or upon some other designated event, and may appoint a successor guardian in the event of a vacancy or make the appointment in contemplation of a vacancy, to serve if a vacancy occurs. An additional or successor guardian may file an acceptance of appointment at any time after the appointment, but not later than 30 days after the occurrence of the vacancy or other designated event. The additional or successor guardian becomes eligible to act on the occurrence of the vacancy or designated event or the filing of the acceptance of appointment, whichever last occurs. A successor guardian succeeds to the predecessor's powers.

6. Termination without consent; best interest; subsequent petitions. The court may not terminate the guardianship of a minor in the absence of the guardian's consent unless the court finds by a preponderance of the evidence that the termination is in the best interest of the minor. The petitioner has the burden of showing by a preponderance of the evidence that termination of the guardianship is in the best interest of the minor. If the court does not terminate the guardianship, the court may dismiss subsequent petitions for termination of the guardianship unless there has been a substantial change of circumstances.

7. Parent's petition to terminate guardianship; burden of proof. A parent may bring a petition to terminate the guardianship of a minor. A parent's notification to the court of the revocation of prior consent for a guardianship must be considered a petition to terminate the guardianship. Before the court may apply the termination requirements in subsection 6, a party opposing a parent's petition to terminate a guardianship bears the burden of proving by a preponderance of the evidence that the parent seeking to terminate the guardianship is currently unfit to regain custody of the minor, in accordance with the standard set forth in section 5-204, subsection 2, paragraph C. If the party opposing termination of the guardianship fails to meet its burden of proof on the question of the parent's fitness to regain custody, the court shall terminate the guardianship and make any further order that may be appropriate. In a contested action, the court may appoint counsel for the minor or for any indigent guardian or parent. In ruling on a petition to terminate a guardianship, the court may modify the terms of the guardianship or order transitional arrangements pursuant to section 5-211.

§ 5-211. Transitional arrangement for minors

In issuing, modifying or terminating an order of guardianship for a minor, the court may enter an order providing for transitional arrangements for the minor if the court determines that such arrangements will assist the minor with a transition of custody and are in the best interest of the minor. Orders providing for transitional arrangements may include, but are not limited to, rights of contact, housing, counseling or rehabilitation. In determining the best interest of the minor, a court may consider the minor's relationship with the guardian and need for stability.

§ 5-212. Appointment of guardian ad litem for minor

In any proceeding under this Part, including for issuing, modifying or terminating an order of guardianship for a minor, the court may appoint a guardian ad litem for the minor. The appointment may be made at any time, but the court shall make every effort to make the appointment as soon as possible after the commencement of the proceeding. The court shall follow the requirements of section 1-111 and other applicable law or court rules in making the appointment.

PART 3

GUARDIANSHIP OF ADULT

§ 5-301. Basis for appointment of guardian for adult

1. Appointment. On petition and after notice and hearing, the court may:

A. Appoint a guardian for a respondent who is an adult if it finds by clear and convincing evidence that the respondent lacks the ability to meet essential requirements for physical health, safety or self-care because:

(1) The respondent is unable to receive and evaluate information or make or communicate decisions, even with appropriate supportive services, technological assistance or supported decision making;

(2) The respondent's identified needs cannot be met by a protective arrangement instead of guardianship or other less restrictive alternatives; and

(3) The appointment is necessary or desirable as a means of enabling the respondent to meet essential requirements for physical health, safety or self-care; or

B. With appropriate findings, treat the petition as one for a conservatorship under Part 4 or a protective arrangement instead of guardianship or conservatorship under Part 5, enter any other appropriate order or dismiss the proceeding.

2. Powers. The court shall grant to a guardian appointed under subsection 1 only those powers necessitated by the limitations and demonstrated needs of the respondent and enter orders that will encourage the development of the respondent's maximum self-determination and independence. The court may not establish a full guardianship if a limited guardianship, protective arrangement instead of guardianship or other less restrictive alternatives would meet the needs of the respondent.

§ 5-302. Petition for appointment of guardian for adult

1. Petition for appointment. A person interested in an adult's welfare, including the adult for whom the order is sought, may petition for the appointment of a guardian for the adult.

2. Contents of petition. A petition under subsection 1 must set forth the petitioner's name, principal residence, current street address, if different, relationship to the respondent and interest in the appointment and state or contain the following to the extent known:

A. The respondent's name, age, principal residence, current street address, if different, and, if different, address of the dwelling in which it is proposed that the respondent will reside if the petition is granted;

B. The name and address of the respondent's:

(1) Spouse or domestic partner or, if the respondent has none, any adult with whom the respondent has shared household responsibilities for more than 6 months in the 12-month period before the filing of the petition;

(2) Adult children or, if the respondent has none, each parent and adult sibling of the respondent or, if the respondent has none, at least one adult nearest in kinship to the respondent who can be found with reasonable diligence; and

(3) Adult stepchildren whom the respondent actively parented during the stepchildren's minor years and with whom the respondent had an ongoing relationship within 2 years before the filing of the petition;

C. The name and current address of each of the following, if applicable:

(1) A person responsible for care of the respondent;

(2) Any attorney currently representing the respondent;

(3) The representative payee appointed by the United States Social Security Administration for the respondent;

(4) A guardian or conservator acting for the respondent in this State or in another jurisdiction;

(5) A trustee or custodian of a trust or custodianship of which the respondent is a beneficiary;

(6) The United States Department of Veterans Affairs fiduciary for the respondent;

(7) An agent designated under a power of attorney for health care in which the respondent is identified as the principal;

(8) An agent designated under a power of attorney for finances in which the respondent is identified as the principal;

(9) A person nominated as guardian by the respondent;

(10) A person nominated as guardian by the respondent's parent, spouse or domestic partner in a will or other signed record;

(11) A proposed guardian and the reason the proposed guardian should be selected; and

(12) A person known to have routinely assisted the respondent with decision making within the 6 months before the filing of the petition;

D. The reason a guardianship is necessary, including a brief description of:

(1) The nature and extent of the respondent's alleged need;

(2) Any protective arrangement instead of guardianship or other less restrictive alternatives for meeting the respondent's alleged need that have been considered or implemented;

(3) If no protective arrangement or other less restrictive alternatives have been considered or implemented, the reason they have not been considered or implemented; and

(4) The reason a protective arrangement or other less restrictive alternatives are insufficient to meet the respondent's alleged need;

E. Whether the petitioner seeks a limited guardianship or full guardianship;

F. If the petitioner seeks a full guardianship, the reason limited guardianship or a protective arrangement instead of guardianship is inappropriate;

G. If a limited guardianship is requested, the powers to be granted to the guardian;

H. The name and current address, if known, of any person with whom the petitioner seeks to limit the respondent's contact;

I. If the respondent has property other than personal effects, a general statement of the respondent's property with an estimate of its value, including any insurance or pension, and the source and amount of any other anticipated income or receipts; and

J. Whether the respondent needs an interpreter, translator or other form of support to communicate effectively with the court or understand court proceedings.

3. Attorney for petitioner. A petition under subsection 1 must state the name, address, telephone number and bar registration number of an attorney representing the petitioner, if any.

§ 5-303. Notice and hearing

1. Date, time and place for hearing. On receipt of a petition under section 5-302 for appointment of a guardian for a respondent who is an adult, the court shall set a date, time and place for hearing the petition.

2. Notice to respondent. A copy of a petition under section 5-302 and notice of a hearing on the petition must be served personally on the respondent. The notice must inform the respondent of the respondent's rights at the hearing, including the right to an attorney and to attend the hearing. The notice must also include a description of the nature, purpose and consequences of granting the petition. Failure to serve the respondent with notice substantially complying with this subsection precludes the court from granting the petition.

3. Notice to other persons. In a proceeding on a petition under section 5-302, notice of the hearing also must be given to any person required to be listed in the petition under section 5-302, subsection 2, paragraphs A to C and any other person the court determines is entitled to notice. Failure to give notice under this subsection does not preclude the court from appointing a guardian.

4. Notice of petition after appointment. Notice of a hearing on a petition that is filed after the appointment of a guardian and that seeks an order under this Part, together with a copy of the petition, must be given to the adult subject to guardianship, the guardian and any other person as the court determines.

§ 5-304. Appointment of visitor

1. Appointment of visitor. On receipt of a petition for appointment of a guardian for a respondent who is an adult under section 5-302, the court shall appoint a visitor. The visitor must be an individual having training or experience in the type of abilities, limitations and needs alleged in the petition.

2. Interview with respondent. A visitor appointed under subsection 1 shall interview the respondent in person and, in a manner the respondent is best able to understand:

A. Explain to the respondent the substance of the petition, the nature, purpose and effect of the proceeding, the respondent's rights at the hearing and the general powers and duties of a guardian;

B. Determine the respondent's views about the appointment, including views about a proposed guardian, the guardian's proposed powers and duties and the scope and duration of the proposed guardianship;

C. Inform the respondent of the respondent's right to employ and consult with an attorney at the respondent's expense and the right to request a court-appointed attorney; and

D. Inform the respondent that all costs and expenses of the proceeding, including the respondent's attorney's fees, may be paid from the respondent's assets.

3. Additional duties. In addition to the duties imposed by subsection 2, the visitor shall:

A. Interview the petitioner and proposed guardian, if any;

B. Visit the respondent's present dwelling and any dwelling in which it is reasonably believed the respondent will live if the appointment is made;

C. Obtain information from any physician or other person known to have treated, advised or assessed the respondent's relevant physical or mental condition; and

D. Investigate the allegations in the petition and any other matter relating to the petition as the court directs.

4. Report of visitor. A visitor under this section shall file a report in a record with the court at least 10 days before any hearing on the petition. The report must include:

A. Whether or not the respondent wishes to contest any aspect of the proceedings or to seek any limitation on the proposed guardian's powers;

B. A recommendation whether an attorney should be appointed to represent the respondent;

C. A summary of self-care and independent living tasks the respondent can manage without assistance or with existing supports, could manage with the assistance of appropriate supportive services, technological assistance or supported decision making and cannot manage;

D. Recommendations regarding the appropriateness of guardianship, including whether a protective arrangement instead of guardianship or other less restrictive alternatives for meeting the respondent's needs are available and, if a guardianship is recommended, whether it should be full or limited and, if a limited guardianship, the powers to be granted to the guardian;

E. A statement of the qualifications of the proposed guardian and whether the respondent approves or disapproves of the proposed guardian;

F. A statement whether the proposed dwelling meets the respondent's needs and whether the respondent has expressed a preference as to residence;

G. A recommendation whether a further professional evaluation under section 5-306 is necessary;

H. A statement whether the respondent is able to attend a hearing at the location court proceedings typically are conducted;

I. A statement whether the respondent is able to participate in a hearing and that identifies any technology or other form of support that would enhance the respondent's ability to participate; and

J. Any other matter as the court directs.

§ 5-305. Appointment and role of attorney for adult

1. Appointment of attorney required. The court shall appoint an attorney to represent the respondent in a proceeding on a petition under section 5-302 if:

A. Requested by the respondent;

B. Recommended by the visitor;

C. The court determines that the respondent needs representation; or

D. It comes to the court's attention that the respondent wishes to contest any aspect of the proceeding or to seek any limitation on the proposed guardian's powers.

2. Duties of attorney. An attorney representing the respondent in a proceeding on a petition under section 5-302 shall:

A. Make reasonable efforts to ascertain the respondent's wishes;

B. Advocate for the respondent's wishes to the extent reasonably ascertainable; and

C. If the respondent's wishes are not reasonably ascertainable, advocate for the result that is the least restrictive option in type, duration and scope, consistent with the respondent's interests.

§ 5-306. Professional evaluation

1. Evaluation; report. In every adult guardianship matter, the respondent must be examined by a licensed physician or psychologist who is acceptable to the court and who is qualified to evaluate the respondent's alleged cognitive and functional abilities. The individual conducting the evaluation shall file a report in a record with the court at least 10 days before any hearing on the petition. Unless otherwise directed by the court, the report must contain:

A. A description of the nature, type and extent of the respondent's cognitive and functional abilities and limitations;

B. An evaluation of the respondent's mental and physical condition and, if appropriate, educational potential, adaptive behavior and social skills;

C. A prognosis for improvement and recommendation for the appropriate treatment, support or habilitation plan; and

D. The date of the examination on which the report is based.

2. Right to decline. The respondent has the right to decline to participate in an evaluation ordered under subsection 1.

§ 5-307. Attendance and rights at hearing

1. Attendance by respondent. Except as otherwise provided in subsection 2, a hearing under section 5-303 may proceed only if the respondent attends the hearing. If it is not reasonably feasible for the respondent to attend a hearing at the location court proceedings typically are conducted, the court shall make reasonable efforts to hold the hearing at an alternative location convenient to the respondent or allow the respondent to attend the hearing using real-time audiovisual technology.

2. Hearing without respondent in attendance. A hearing under section 5-303 may proceed without the respondent in attendance if the court finds by clear and convincing evidence that:

A. The respondent consistently and repeatedly has refused to attend the hearing after having been fully informed of the right to attend the hearing and the potential consequences of failing to do so; or

B. There is no practicable way for the respondent to attend and participate in the hearing even with appropriate supportive services and technological assistance.

3. Assistance to respondent. The respondent may be assisted in a hearing under section 5-303 by a person or persons of the respondent's choosing, assistive technology or an interpreter or translator, or a combination of these supports. If assistance would facilitate the respondent's participation in the hearing but is not otherwise available to the respondent, the court shall make reasonable efforts to provide it.

4. Attorney for respondent. The respondent has a right to choose an attorney to represent the respondent at a hearing under section 5-303.

5. Rights of respondent at hearing. For or at a hearing under section 5-303, the respondent may:

A. Present evidence and subpoena witnesses and documents;

B. Examine witnesses, including any court-appointed evaluator and the visitor; and

C. Otherwise participate in the hearing.

6. Attendance by proposed guardian required. Unless excused by the court for good cause, the proposed guardian shall attend a hearing under section 5-303.

7. Closed upon request; good cause. A hearing under section 5-303 must be closed on request of the respondent and a showing of good cause.

8. Participation; best interest of respondent. Any person may request to participate in a hearing under section 5-303. The court may grant the request, with or without hearing, on determining that the best interest of the respondent will be served. The court may attach appropriate conditions to the person's participation.

§ 5-308. Confidentiality of records

1. Matter of public record; exception. The existence of a proceeding for or the existence of a guardianship for an adult is a matter of public record unless the court seals the records after:

A. The respondent or individual subject to guardianship requests the records be sealed; and

B. Either:

(1) The petition for guardianship is dismissed; or

(2) The guardianship is terminated.

2. Access to court records. An adult subject of a proceeding for a guardianship, whether or not a guardian is appointed, any attorney designated by the adult and a person entitled to notice under section 5-310, subsection 5 are entitled to access court records of the proceeding and resulting guardianship, including a guardian's report or plan. In addition, a person for good cause may petition the court for access to court records of the guardianship, including an annual report or guardian's plan. The court shall grant access if access is in the best interest of the respondent or adult subject to guardianship or furthers the public interest and does not endanger the welfare or financial interest of the adult.

3. Reports confidential; availability. A report under section 5-304 of a visitor or a professional evaluation under section 5-306 is confidential and must be sealed on filing but is available to:

A. The court;

B. The individual who is the subject of the report or evaluation, without limitation as to use;

C. The petitioner, visitor and petitioner's and respondent's attorneys, for purposes of the proceeding;

D. An agent appointed under a power of attorney for health care or advance health care directive, or power of attorney for finances in which the respondent is identified as the principal, unless the court orders otherwise; and

E. Other persons when it is in the public interest or for a purpose the court orders for good cause.

§ 5-309. Who may be guardian of adult; priorities

1. Priority for appointment. Except as otherwise provided in subsection 3, the court in appointing a guardian for an adult shall consider persons otherwise qualified in the following order of priority:

A. A guardian, other than a temporary or emergency guardian, currently acting for the respondent in another jurisdiction;

B. A person nominated as guardian by the respondent, including the respondent's most recent nomination made in a power of attorney;

C. An agent appointed by the respondent under a power of attorney for health care or an advance health care directive;

D. A spouse or domestic partner of the respondent; and

E. A family member or other individual who has exhibited special care and concern for the respondent.

2. Equal priority. With respect to persons having equal priority under subsection 1, the court shall select as guardian the person the court considers best qualified. In determining the best qualified person, the court shall consider the potential guardian's relationship with the respondent, the potential guardian's skills, the expressed wishes of the respondent, the extent to which the potential guardian and the respondent have similar values and preferences and the likelihood the potential guardian will be able to satisfy the duties of a guardian successfully.

3. Appointment based on best interest of respondent. The court, acting in the best interest of the respondent, may decline to appoint as guardian a person having priority under subsection 1 and appoint a person having a lower priority or no priority.

4. Appointment prohibited; exceptions. A person that provides paid services to the respondent, or an individual who is employed by a person that provides paid services to the respondent or is the spouse, domestic partner, parent or child of an individual who provides or is employed to provide paid services to the respondent, may not be appointed as guardian unless:

A. The individual is related to the respondent by blood, marriage or adoption; or

B. The court finds by clear and convincing evidence that the person is the best qualified person available for appointment and the appointment is in the best interest of the respondent.

5. Long-term care institution; exceptions. An owner, operator or employee of a long-term care institution at which the respondent is receiving care may not be appointed as guardian unless the owner, operator or employee is related to the respondent by blood, marriage or adoption.

§ 5-310. Order of appointment

1. Order contents. A court order appointing a guardian for an adult must clearly:

A. Include a finding that clear and convincing evidence has established that the identified needs of the respondent cannot be met by a protective arrangement instead of guardianship or other less restrictive alternatives, including use of appropriate supportive services, technological assistance or supported decision making;

B. Include a finding that clear and convincing evidence established that the respondent was given proper notice of the hearing on the petition;

C. State whether the adult subject to guardianship retains the right to vote and, if the adult does not retain the right to vote, include findings that support removing that right, which must include a finding that the adult cannot communicate, with or without support, a specific desire to participate in the voting process; and

D. State whether the adult subject to guardianship retains the right to marry and, if the adult's right to marry is subject to conditions or if the adult does not retain the right to marry, include findings that support the conditions on that right or the removal of that right.

2. Rights retained. An adult subject to guardianship retains the right to vote unless the order under subsection 1 includes the findings required by subsection 1, paragraph C. An adult subject to guardianship retains the right to marry unless the order under subsection 1 includes the findings required by subsection 1, paragraph D.

3. Basis for full guardianship. A court order establishing a full guardianship for an adult clearly must state the basis for granting a full guardianship and include specific findings that support the conclusion that a limited guardianship would not meet the functional needs of the adult subject to guardianship.

4. Limited guardianship; powers granted to guardian. A court order establishing a limited guardianship for an adult must state clearly the powers granted to the guardian.

5. Notice; access to reports and plans. The court shall, as part of any order establishing a guardianship for an adult, identify any person that subsequently is entitled to:

A. Notice of the rights of the adult subject to guardianship;

B. Notice of a change in the primary dwelling of the adult subject to guardianship;

C. Notice that the guardian has delegated:

(1) The power to manage the care of the adult subject to guardianship;

(2) The power to make decisions about where the adult subject to guardianship lives;

(3) The power to make major medical decisions on behalf of the adult subject to guardianship;

(4) Any power that requires court approval under section 5-315; or

(5) Substantially all powers of the guardian.

D. Notice that the guardian will be unavailable to visit the adult subject to guardianship for more than 2 months or unable to perform the guardian's duties for more than one month;

E. A copy of the guardian's report and plan;

F. Access to court records pertaining to the guardianship;

G. Notice of the death or significant change in the condition of the adult subject to guardianship;

H. Notice that the court has limited or modified the powers of the guardian; and

I. Notice of the guardian's removal.

6. Entitled to notice; exceptions. A spouse, a domestic partner and the adult children of the adult subject to guardianship are entitled to notice under subsection 5 unless the court determines notice would be contrary to the preferences or prior directions of the adult subject to guardianship or not in the best interest of the adult.

§ 5-311. Notice of order of appointment; rights

A guardian appointed under section 5-309 shall give to the adult subject to guardianship and to all other persons given notice under section 5-303 a copy of the order of appointment, together with a notice of the right to request termination or modification. The order and notice must be given not later than 14 days after the appointment.

§ 5-312. Emergency guardian

1. Basis for emergency guardianship. On petition by a person interested in an adult's welfare or on its own after a petition has been filed under section 5-302, the court may appoint an emergency guardian for the adult if the court finds:

A. Appointment of an emergency guardian is likely to prevent substantial harm to the adult's physical health, safety or welfare;

B. No other person appears to have authority and willingness to act in the circumstances; and

C. There is reason to believe that a basis for appointment of a guardian under section 5-301 may exist.

2. Limited time and powers. The duration of authority of an emergency guardian for an adult may not exceed 60 days and the emergency guardian may exercise only the powers specified in the order. The emergency guardian's authority may be extended once for not more than 120 days if the court finds that the conditions for appointment of an emergency guardian in subsection 1 continue.

3. Notice before petition. Prior to filing a petition under this section, notice must be provided as follows.

A. The petitioner shall provide notice orally or in writing to the following:

(1) The respondent and the respondent's spouse, parents, adult children and any domestic partner known to the court;

(2) Any person who is serving as guardian or conservator or who has care and custody of the respondent; and

(3) In case no other person is notified under subparagraph (1), at least one of the closest adult relatives of the respondent or, if there are none, an adult friend, if any can be found.

B. Notice under paragraph A must include the following information:

(1) The temporary authority that the petitioner is requesting;

(2) The location and telephone number of the court in which the petition is being filed; and

(3) The name of the petitioner and the intended date of filing.

C. The petitioner shall state in an affidavit the date, time, location and method of providing the required notice under paragraph A and to whom the notice was provided. The court shall make a determination as to the adequacy of the method of providing notice and whether the petitioner complied with the notice requirements of this subsection. The requirements of section 5-309 do not apply to this section.

D. Notice is not required under this subsection in the following circumstances:

(1) Giving notice would place the respondent at substantial risk of abuse, neglect or exploitation;

(2) Notice, if provided, would not be effective; or

(3) The court determines that there is good cause not to provide notice.

E. If, prior to filing the petition, the petitioner does not provide notice as required under this subsection, the petitioner must state in the affidavit under paragraph C the reasons for not providing notice. If notice has not been provided, the court shall make a determination as to the sufficiency of the reason for not providing notice before issuing a temporary order.

4. Appointment without notice and hearing. The court may appoint an emergency guardian for an adult without notice and a hearing only if the court finds from an affidavit or testimony that the respondent will be substantially harmed before a hearing on the appointment can be held. If the court appoints an emergency guardian without notice and a hearing, the court shall, not later than 48 hours after the appointment, notify the respondent, the respondent's attorney and any other person as the court determines of the appointment. If the respondent objects to the appointment, the court shall hold a hearing within 14 days of the appointment.

5. Not a determination. Appointment of an emergency guardian under this section is not a determination that the conditions required for appointment of a guardian under section 5-301 have been satisfied.

6. Removal; report; application. The court may remove an emergency guardian appointed under this section at any time. The emergency guardian shall make any report the court requires. In other respects, the provisions of this Act concerning guardians apply to an emergency guardian appointed under this section.

§ 5-313. Duties of guardian for adult

1. Fiduciary. A guardian for an adult is a fiduciary. Except as otherwise limited by the court, a guardian for an adult shall make decisions regarding the support, care, education, health and welfare of the adult subject to guardianship to the extent necessitated by the adult's limitations.

2. Promote self-determination. A guardian for an adult shall promote the self-determination of the adult subject to guardianship and, to the extent reasonably feasible, encourage the adult to participate in decisions, act on the adult's own behalf and develop or regain the capacity to manage the adult's personal affairs. In furtherance of this duty, the guardian shall:

A. Become or remain personally acquainted with the adult subject to guardianship and maintain sufficient contact with the adult, including through regular visitation, to know of the adult's abilities, limitations, needs, opportunities and physical and mental health;

B. To the extent reasonably feasible, identify the values and preferences of the adult subject to guardianship and involve the adult in decisions affecting the adult, including decisions about the adult's care, dwelling, activities and social interactions; and

C. Make reasonable efforts to identify and facilitate supportive relationships and services for the adult subject to guardianship.

3. Reasonable care, diligence and prudence. A guardian for an adult at all times shall exercise reasonable care, diligence and prudence when acting on behalf of or making decisions for the adult subject to guardianship. In furtherance of this duty, the guardian shall:

A. Take reasonable care of the personal effects, pets and service or support animals of the adult subject to guardianship and bring a proceeding for a conservatorship or protective arrangement instead of conservatorship if necessary to protect the adult's property;

B. Expend money of the adult subject to guardianship that has been received by the guardian for the adult's current needs for support, care, education, health and welfare;

C. Administer assets of the adult subject to guardianship having a value of $5,000 or less;

D. Conserve any excess money of the adult subject to guardianship for the adult's future needs, but if a conservator has been appointed for the adult, the guardian shall pay the money to the conservator, at least quarterly, to be conserved for the adult's future needs; and

E. Monitor the quality of services, including long-term care services, provided to the adult subject to guardianship.

4. Decision of the adult. In making a decision for an adult subject to guardianship, the guardian shall make the decision the guardian reasonably believes the adult would make if the adult were able unless doing so would unreasonably harm or endanger the welfare or personal or financial interests of the adult. To determine the decision the adult subject to guardianship would make if able, the guardian shall consider the adult's prior or current directions, preferences, opinions, values and actions, to the extent actually known or reasonably ascertainable by the guardian.

5. Decision in best interest of the adult. If a guardian for an adult cannot make a decision under subsection 4 because the guardian does not know and cannot reasonably determine the decision that the adult probably would make if able, or the guardian reasonably believes the decision the adult would make would unreasonably harm or endanger the welfare or personal or financial interests of the adult, the guardian shall act in accordance with the best interest of the adult. In determining the best interest of the adult, the guardian shall consider:

A. Information received from professionals and persons that demonstrate sufficient interest in the welfare of the adult;

B. Other information the guardian believes the adult would have considered if the adult were able to act; and

C. Other factors that a reasonable person in the circumstances of the adult would consider, including consequences for others.

6. Notice to court. A guardian for an adult immediately shall notify the court if the condition of the adult subject to guardianship has changed so that the adult is capable of exercising rights previously removed.

§ 5-314. Powers of guardian for adult

1. Powers. Except as otherwise limited by the court, a guardian for an adult may:

A. Apply for or receive money or benefits for the support of the adult, unless a conservator has been appointed for the adult and the application or receipt is within the powers of the conservator;

B. If otherwise consistent with an order by a court with jurisdiction relating to the dwelling of the adult, establish the adult's place of dwelling;

C. Consent to medical or other care, treatment or service for the adult;

D. If a conservator for the adult has not been appointed, commence a proceeding, including an administrative proceeding, or take other appropriate action to compel another person to support the adult or pay funds for the adult's benefit;

E. To the extent reasonable, delegate to the adult certain responsibility for decisions affecting the adult's well-being; and

F. Receive personally identifiable health care information concerning the adult.

2. Adoption. The court may by specific order authorize a guardian for an adult to consent to the adoption of the adult.

3. Specific order of court required. The court may by specific order authorize a guardian for an adult to:

A. Consent or withhold consent to the marriage of the adult if the adult's right to marry has been removed or made subject to conditions under section 5-310;

B. Petition for divorce, dissolution or annulment of marriage of the adult or for a declaration of invalidity of the adult's marriage; or

C. Support or oppose a petition for divorce, dissolution or annulment of marriage of the adult or for a declaration of invalidity of the adult's marriage.

4. Court's consideration. In determining whether to authorize a power under subsection 2 or 3, the court shall consider whether the underlying act would be in accordance with the adult's preferences, values and prior directions and whether the underlying act would be in the best interest of the adult.

5. Duties with respect to dwelling. In exercising the guardian's power under subsection 1, paragraph B to establish the dwelling of the adult subject to guardianship, a guardian shall:

A. Select a residential setting the guardian believes the adult would select if the adult were able, in accordance with the decision-making standard in section 5-313, subsections 4 and 5. If the guardian does not know and cannot reasonably determine what setting the adult subject to guardianship probably would choose if able, or the guardian reasonably believes the decision the adult would make would unreasonably harm or endanger the welfare or personal or financial interests of the adult, the guardian shall choose in accordance with section 5-313, subsection 5 a residential setting that is consistent with the best interest of the adult;

B. In selecting among residential settings, give priority to a residential setting that is in a location that will allow the adult subject to guardianship to interact with persons important to the adult and meet the adult's needs in the least restrictive manner reasonably feasible unless doing so would be inconsistent with the decision-making standard in section 5-313, subsections 4 and 5;

C. Not later than 30 days after a change in the dwelling of the adult subject to guardianship, give notice of the change to the court, the adult subject to guardianship and any person identified as entitled to the notice in the court order appointing the guardian or a subsequent order. The notice must include the address and nature of the new dwelling and state whether the adult subject to guardianship received advance notice of the change and whether the adult objected to the change;

D. Establish or move the permanent place of dwelling of an adult subject to guardianship to a nursing home, mental health facility or other facility that places restrictions on the individual's ability to leave or have visitors only if:

(1) The establishment or move is set forth in the guardian's plan;

(2) The court authorizes the establishment or move; or

(3) Notice of the establishment or move is given at least 14 days before the establishment or move to the adult subject to guardianship and all persons entitled to the notice under section 5-310, subsection 5 or a subsequent order and no objection has been filed;

E. Establish or move the place of dwelling of an adult subject to guardianship outside this State only if consistent with the guardian's plan and authorized by the court by specific order; and

F. Take action that would result in the sale of or surrender the lease to the primary dwelling of the adult subject to guardianship only if:

(1) The action is specifically set forth in the guardian's plan;

(2) The court authorizes the action by specific order; or

(3) Notice of the action is given at least 14 days before the action to the adult subject to guardianship and all persons entitled to the notice under section 5-310, subsection 5 or a subsequent order and no objection has been filed.

6. Duties with respect to health care. In exercising the guardian's power under subsection 1, paragraph C to make health care decisions, a guardian shall:

A. Involve the adult in decision making to the extent reasonably feasible, including, when practicable, by encouraging and supporting the adult in understanding the risks and benefits of health care options;

B. Defer to a decision by an agent under a power of attorney for health care or an advance health care directive executed by the adult and cooperate to the extent feasible with the agent making the decision; and

C. Take into account:

(1) The risks and benefits of treatment options; and

(2) The current and previous wishes and values of the adult, if known or reasonably ascertainable by the guardian.

§ 5-315. Special limitations on guardian's power

1. Limitations; health care; finances. Unless authorized by the court by specific order, a guardian for an adult does not have the power to revoke or amend a power of attorney for health care or an advance health care directive or power of attorney for finances executed by the adult. If a power of attorney for health care or an advance health care directive is in effect, unless there is a court order to the contrary, a health care decision of an agent takes precedence over that of the guardian and the guardian shall cooperate with the agent to the extent feasible. If a power of attorney for finances is in effect, unless there is a court order to the contrary, a decision by the agent that the agent is authorized to make under the power of attorney for finances takes precedence over that of the guardian and the guardian shall cooperate with the agent to the extent feasible.

2. Commitment to mental health facility. A guardian for an adult may not initiate the commitment of the adult to a mental health facility except in accordance with the State's procedure for involuntary civil commitment under Title 34-B, chapter 3, subchapter 4, article 3.

3. Restrictions on contact. A guardian for an adult may not restrict the ability of the adult to communicate, visit or interact with others, including receiving visitors or making or receiving telephone calls, personal mail or electronic communications, including through social media, or participating in social activities, unless:

A. Authorized by the court by specific order;

B. A protective order or a protective arrangement instead of guardianship is in effect that limits contact between the adult and a person; or

C. The guardian has good cause to believe restriction is necessary because interaction with the person poses a risk of significant physical, psychological or financial harm to the adult and the restriction is:

(1) For a period of not more than 7 business days if the person has a family or preexisting social relationship with the adult; or

(2) For a period of not more than 60 days if the person does not have a family or preexisting social relationship with the adult.

§ 5-316. Guardian's plan

1. Plan; revision. The petitioner for appointment of a guardian for an adult shall file with the petition a plan for the care of the adult. When there is a subsequent change in circumstances, or the guardian seeks to deviate significantly from the plan previously filed, the guardian shall file with the court a revised plan for the care of the adult. The plan must be based on the needs of the adult and take into account the best interest of the adult as well as the adult's preferences, values and prior directions, to the extent known to or reasonably ascertainable by the guardian. The plan must identify:

A. The living arrangement, services and supports the guardian expects to arrange, facilitate or continue for the adult;

B. Social and educational activities the guardian expects to facilitate on behalf of the adult;

C. Any person with whom the adult has a relationship and any plan the guardian has for facilitating visits with the person;

D. The anticipated nature and frequency of the guardian's visits and communication with the adult;

E. Goals for the adult including any goal related to the restoration of the adult's rights and how the guardian anticipates achieving the goals;

F. Whether the adult already has a plan in place and, if so, whether the guardian's plan is consistent with the adult's plan; and

G. A statement or list of the amount the guardian proposes to charge for each service the guardian anticipates providing to the adult.

2. Notice of revised plan. A guardian shall give notice of the filing of a revised plan under subsection 1, along with a copy of the plan, to the adult subject to guardianship, all persons entitled to notice under section 5-310, subsection 5 or a subsequent order and other persons as the court determines. The notice must include a statement of the right to object to the revised plan and be given not later than 14 days after the filing.

3. Objection to revised plan. An adult subject to guardianship and any person entitled under subsection 2 to receive notice and a copy of the guardian's plan may object to the revised plan.

4. Court review of plan or revised plan; approval. The court shall review a guardian's plan or revised plan filed under subsection 1. In deciding whether to approve the plan or the revised plan the court shall consider an objection under subsection 3 and whether the plan or revised plan is consistent with the guardian's duties and powers under sections 5-313 and 5-314. The court may schedule a hearing on any revised plan submitted and may not approve any revised plan until 30 days after its filing.

5. Copy of approved plan. After a guardian's plan under this section is approved by the court, the guardian shall provide a copy of the plan to the adult subject to guardianship, all persons entitled to notice under section 5-310, subsection 5 or a subsequent order and other persons as the court determines.

§ 5-317. Guardian's report; monitoring of guardianship

1. Report; contents. A guardian for an adult at least annually shall submit to the court a report in a record regarding the condition of the adult and accounting for money and other property in the guardian's possession or subject to the guardian's control. Each report must state or contain:

A. The mental, physical and social condition of the adult;

B. The living arrangements of the adult during the reporting period;

C. A summary of the supported decision making, technological assistance, medical services, educational and vocational services and other supports and services provided to the adult and the guardian's opinion as to the adequacy of the adult's care;

D. A summary of the guardian's visits with the adult, including the dates of the visits;

E. Action taken on behalf of the adult;

F. The extent to which the adult has participated in decision making;

G. If the adult is living in a mental health facility or living in a facility that provides the adult with health care or other personal services, whether the guardian considers the facility's current plan for support, care, treatment or habilitation consistent with the adult's preferences, values, prior directions and best interest;

H. Anything of more than de minimis value that the guardian, any individual who resides with the guardian or the spouse, domestic partner, parent, child or sibling of the guardian has received from an individual providing goods or services to the adult;

I. If the guardian has delegated powers to an agent, the powers delegated and the reason for the delegation;

J. Any business relation the guardian has with a person the guardian has paid or a person that has benefited from the property of the adult;

K. A copy of the guardian's most recent plan and a statement whether the guardian has deviated from the plan and, if so, how the guardian has deviated and why;

L. Plans for future care and support;

M. A recommendation as to the need for continued guardianship and any recommended change in the scope of the guardianship; and

N. Whether any coguardian or successor guardian appointed to serve when a designated future event occurs is alive and able to serve.

2. Appointment of visitor. The court may appoint a visitor to review a report submitted under this section, interview the guardian or adult subject to guardianship or investigate any other matter involving the guardianship.

3. Notice of filing of report; copy. Notice of the filing of a guardian's report under this section, together with a copy of the report, must be given to the adult subject to guardianship, all persons entitled to notice under section 5-310, subsection 5 or a subsequent order and any other person as the court determines. The notice and report must be given not later than 14 days after the filing of the report.

4. System to monitor reports. The court shall establish a system for monitoring reports submitted under this section and review each report at least annually to determine whether:

A. The report provides sufficient information to establish the guardian has complied with the guardian's duties;

B. The guardianship should continue; and

C. The guardian's requested fees, if any, should be approved.

5. Noncompliance; modification or termination. If the court determines there is reason to believe a guardian for an adult has not complied with the guardian's duties or the guardianship should be modified or terminated, the court:

A. Shall notify the adult, the guardian and all persons entitled to notice under section 5-310, subsection 5 or a subsequent order;

B. May require additional information from the guardian;

C. May appoint a visitor to interview the adult or guardian or investigate any matter involving the guardianship; and

D. May consider removing the guardian under section 5-318 or terminating the guardianship or changing the powers of the guardian or other terms of the guardianship under section 5-319.

6. Fees not reasonable. If the court has reason to believe that fees requested by a guardian for an adult are not reasonable, the court shall hold a hearing to determine whether to adjust the requested fees.

7. Approval of report. A guardian for an adult may petition the court for approval of a report filed under this section. The court after review may approve the report. If, after notice and hearing, the court approves the report, there is a rebuttable presumption the report is accurate as to a matter adequately disclosed in the report.

§ 5-318. Removal of guardian for adult; appointment of successor

1. Removal; successor. The court may remove a guardian for an adult for failure to perform the guardian's duties or for other good cause and appoint a successor guardian to assume the duties of guardian.

2. Hearing. The court shall conduct a hearing to determine whether to remove a guardian for an adult and appoint a successor on:

A. Petition of the adult, the guardian or a person interested in the welfare of the adult that contains allegations that, if true, would support a reasonable belief that removal of the guardian and appointment of a successor may be appropriate, but the court may decline to hold a hearing if a petition based on the same or substantially similar facts was filed within the preceding 6 months;

B. Communication from the adult, the guardian or a person interested in the welfare of the adult that supports a reasonable belief that removal of the guardian and appointment of a successor may be appropriate; or

C. Determination by the court that a hearing would be in the best interest of the adult.

3. Notice. Notice of a petition under subsection 2, paragraph A must be given to the adult subject to guardianship, the guardian and such other persons as the court determines.

4. Attorney for the adult. An adult subject to guardianship who seeks to remove the guardian and have a successor appointed has a right to choose an attorney to represent the adult. If the adult subject to guardianship is not represented by an attorney, the court shall appoint an attorney under the same conditions as in section 5-305. The court shall award reasonable attorney's fees to the attorney for the adult as provided in section 5-119.

5. Procedure to select successor. In selecting a successor guardian of an adult subject to guardianship, the court shall follow the procedures under section 5-309.

6. Notice of appointment of successor. Not later than 30 days after appointing a successor guardian, the court shall give notice of the appointment to the adult subject to guardianship and all persons entitled to the notice under section 5-310, subsection 5 or a subsequent order.

§ 5-319. Termination or modification of guardianship for adult

1. Petition for termination or modification. An adult subject to guardianship, the guardian for the adult or a person interested in the welfare of the adult may petition for:

A. Termination of the guardianship on the ground that a basis for appointment under section 5-301 does not exist or termination would be in the best interest of the adult, or for other good cause; or

B. Modification of the guardianship on the ground that the extent of protection or assistance granted is not appropriate, or for other good cause.

2. Hearing. The court shall conduct a hearing to determine whether termination or modification of a guardianship of an adult is appropriate on:

A. Petition under subsection 1 that contains allegations that, if true, would support a reasonable belief that termination or modification of the guardianship may be appropriate, but the court may decline to hold a hearing if a petition based on the same or substantially similar facts was filed within the preceding 6 months;

B. Communication from the adult, the guardian or a person interested in the welfare of the adult that supports a reasonable belief that termination or modification of the guardianship may be appropriate, including because of a change in the functional needs of the adult or supports or services available to the adult;

C. A report from a guardian or conservator that indicates that termination or modification may be appropriate because the functional needs of the adult or supports or services available to the adult have changed or a protective arrangement instead of guardianship or other less restrictive alternatives for meeting the adult's needs are available; or

D. A determination by the court that a hearing would be in the best interest of the adult.

3. Notice. Notice of a petition under subsection 2, paragraph A must be given to the adult subject to guardianship, the guardian and such other persons as the court determines.

4. Termination. On presentation of prima facie evidence for termination of a guardianship for an adult, the court shall order termination unless it is proven that the basis for appointment of a guardian under section 5-301 is satisfied.

5. Modification. The court shall modify the powers granted to a guardian for an adult if the powers are excessive or inadequate due to a change in the abilities or limitations of the adult, the adult's supports or services or other circumstances.

6. Procedure. Unless the court otherwise orders for good cause, before terminating or modifying a guardianship for an adult, the court shall follow the same procedures to safeguard the rights of the adult that apply to a petition for guardianship.

7. Attorney for the adult. An adult subject to guardianship who seeks to terminate or modify the terms of the guardianship has a right to choose an attorney to represent the adult in this matter. If the adult is not represented by an attorney, the court shall appoint an attorney under the same conditions as in section 5-305. The court shall award reasonable attorney's fees to the attorney for the adult as provided in section 5-119.

PART 4

CONSERVATORSHIP

§ 5-401. Basis for appointment of conservator

1. Conservator for minor; findings. On petition and after notice and hearing, the court may appoint a conservator for the property or financial affairs of a minor, if the court finds by a preponderance of evidence that:

A. The minor owns money or property requiring management or protection that otherwise cannot be provided; or

B. Appointment of a conservator is in the best interest of the minor and:

(1) If the minor has a parent, the court gives weight to any recommendation of the minor's parent whether an appointment is in the best interest of the minor; and

(2) Either:

(a) The minor has or may have financial affairs that may be put at unreasonable risk or hindered because of the minor's age; or

(b) Appointment is necessary or desirable to obtain or provide money needed for the support, care, education, health or welfare of the minor.

2. Conservator for adult; findings. On petition and after notice and hearing, the court may appoint a conservator for the property or financial affairs of an adult if the court determines by clear and convincing evidence that:

A. The adult is unable to manage property or financial affairs because:

(1) Of a limitation in the ability to receive and evaluate information or make or communicate decisions even with the use of appropriate supportive services, technological assistance and supported decision making; or

(2) The adult is missing, detained or unable to return to the United States;

B. Appointment is necessary to:

(1) Avoid harm to the adult or significant dissipation of the property of the adult; or

(2) Obtain or provide money needed for the support, care, education, health or welfare of the adult, or of an individual entitled to the adult's support, and protection is necessary or desirable to obtain or provide money for the purpose; and

C. The respondent's identified needs cannot be met by less restrictive alternatives.

3. Powers. The court shall grant a conservator only those powers necessitated by demonstrated limitations and needs of the respondent and enter orders that encourage the development of the respondent's maximum self-determination and independence. The court may not establish a full conservatorship if a limited conservatorship, protective arrangement instead of conservatorship or other less restrictive alternatives would meet the needs of the respondent.

§ 5-402. Petition for appointment of conservator

1. Petitioner. The following may petition for the appointment of a conservator:

A. The individual for whom the order is sought;

B. A person interested in the estate, financial affairs or welfare of the individual, including a person that would be adversely affected by lack of effective management of property and financial affairs of the individual; or

C. The guardian of the individual.

2. Contents. A petition under subsection 1 must set forth the petitioner's name, principal residence, current street address, if different, relationship to the respondent and interest in the appointment and state or contain the following to the extent known:

A. The respondent's name, age, principal residence, current street address, if different, and, if different, address of the dwelling in which it is proposed the respondent will reside if the petition is granted;

B. The name and address of the respondent's:

C. The name and current address of each of the following, if applicable:

(1) A person responsible for the care or custody of the respondent;

(2) Any attorney currently representing the respondent;

(3) The representative payee appointed by the United States Social Security Administration for the respondent;

(4) A guardian or conservator acting for a respondent in this State or another jurisdiction;

(5) A trustee or custodian of a trust or custodianship of which the respondent is a beneficiary;

(6) The United States Department of Veterans Affairs fiduciary for the respondent;

(7) An agent designated under a power of attorney for health care or an advance health directive in which the respondent is identified as the principal;

(8) An agent designated under a power of attorney for finances in which the respondent is identified as the principal;

(9) A person known to have routinely assisted the respondent with decision making within the 6 months before the filing of the petition;

(10) Any proposed conservator, including a person nominated by the respondent if the respondent is 14 years of age or older; and

(11) If the individual for whom a conservator is sought is a minor:

(a) An adult with whom the minor resides if not otherwise listed; and

(b) Any person not otherwise listed that had the care or custody of the minor for 60 or more days during the 2 years preceding the filing of the petition or any person that had the primary care or custody of the minor for at least 730 days during the 5 years preceding the filing of the petition;

D. A general statement of the respondent's property with an estimate of its value, and the source and amount of other anticipated income or receipts;

E. The reason conservatorship is necessary, including a brief description of:

(1) The nature and extent of the respondent's alleged need;

(2) If the petition alleges the respondent is missing, detained or unable to return to the United States, the relevant circumstances, including the time and nature of the disappearance or detention and any search or inquiry concerning the respondent's whereabouts;

(3) Any protective arrangement instead of conservatorship or other less restrictive alternatives for meeting the respondent's alleged need which have been considered or implemented;

(4) If no protective arrangement or other less restrictive alternatives have been considered or implemented, the reason they have not been considered or implemented; and

(5) The reason a protective arrangement or other less restrictive alternatives are insufficient to meet the respondent's need;

F. Whether the respondent needs an interpreter, translator or other form of support to communicate effectively with the court or understand court proceedings;

G. Whether the petitioner seeks a limited conservatorship or a full conservatorship;

H. If the petitioner seeks a full conservatorship, the reason a limited conservatorship or protective arrangement instead of conservatorship is not appropriate;

I. If the petition includes the name of a proposed conservator, the reason the proposed conservator should be appointed; and

J. If the petition is for a limited conservatorship, a description of the property to be placed under the conservator's control and any other requested limitation on the authority of the conservator.

3. Attorney for petitioner. A petition under subsection 1 must state the name, address, telephone number and bar registration number of an attorney representing the petitioner, if any.

§ 5-403. Notice and hearing

1. Date, time and place for hearing. On receipt of a petition for appointment of a conservator under section 5-402, the court shall set a date, time and place for hearing the petition.

2. Notice to respondent. A copy of a petition under section 5-402 and notice of a hearing on the petition must be served personally on the respondent at least 14 days before the hearing. If the respondent's whereabouts are unknown or personal service cannot be made, service on the respondent must be made by substituted service or publication. The notice must inform the respondent of the respondent's rights at the hearing, including the right to an attorney and to attend the hearing. The notice must also include a description of the nature, purpose and consequences of granting the petition. Failure to serve the respondent with notice substantially complying with this subsection precludes the court from granting the petition.

3. Notice to others. In a proceeding on a petition under section 5-402, notice of the hearing also must be given to the persons required to be listed in the petition under section 5-402, subsection 3, paragraphs A to C and any other person interested in the respondent's welfare as the court determines at least 14 days prior to the hearing. Failure to give notice under this subsection does not preclude the court from appointing a conservator.

4. Notice of petition after order. Notice of a hearing on a petition that is filed after the appointment of a conservator and that seeks an order under this Part, together with a copy of the petition, must be given to the individual subject to conservatorship if the individual is 14 years of age or older and is not missing, detained or unable to return to the United States, the conservator and any other person as the court determines.

§ 5-404. Petition for protective order

1. Petition. The person to be protected, any person who is interested in the estate, affairs or welfare of the person to be protected, including the parent, guardian, custodian or domestic partner of the person to be protected, or any person who would be adversely affected by lack of effective management of the property and affairs of the person to be protected may petition for a protective order.

2. Contents of petition. A petition under subsection 1 must contain such information and be in such form as the Supreme Judicial Court by rule provides.

3. Purpose; priority scheduling. A petition for a protective order made under oath may be used to initiate court consideration, accounting and remediation of the actions of any individual responsible for the management of the property or affairs of another. In the case of an emergency, the petition must be given priority scheduling by the court.

A. The petition must include the following information and may include other information required by rule:

(1) Name, address and telephone number of the petitioner;

(2) Name, address and telephone number of the principal;

(3) Name, address and telephone number of the person with actual or apparent authority to manage the property or affairs of the principal;

(4) Facts concerning the extent and nature of the principal's inability to manage the principal's property or affairs effectively and any facts supporting an allegation that an emergency exists;

(5) Facts concerning the extent and nature of the actual or apparent agent's lack of management of the principal's property or affairs. If applicable, facts describing how the petitioner has already been adversely affected by the lack of management of the principal's property or affairs; and

(6) Names, addresses and relationships of all persons who are required to receive notice of the petition.

B. This subsection does not limit any other purpose for the use of a petition for a protective order or any other remedy available to the court.

§ 5-405. Appointment and role of visitor

1. Visitor for minor respondent. If the respondent in a proceeding to appoint a conservator is a minor, the court may appoint a visitor to investigate a matter related to the petition or to inform the minor or a parent of the minor about the petition or a related matter.

2. Visitor for adult respondent. If the respondent in a proceeding to appoint a conservator is an adult, the court shall appoint a visitor unless the adult is represented by an attorney. The duties and reporting requirements of the visitor are limited to the relief requested in the petition. The visitor must be an individual having training or experience in the type of abilities, limitations and needs alleged in the petition.

3. Duties of visitor for adult respondent. A visitor appointed for an adult under subsection 2 shall interview the respondent in person and, in a manner the respondent is best able to understand:

A. Explain to the respondent the substance of the petition, the nature, purpose and effect of the proceeding, the respondent's rights at the hearing and the general powers and duties of a conservator;

B. Determine the respondent's views about the appointment sought by the petitioner, including views about a proposed conservator, the conservator's proposed powers and duties and the scope and duration of the proposed conservatorship;

C. Inform the respondent of the respondent's right to employ and consult with an attorney at the respondent's expense and the right to request a court-appointed attorney; and

D. Inform the respondent that all costs and expenses of the proceeding, including the respondent's attorney's fees, may be paid from the respondent's assets.

4. Additional duties. In addition to the duties imposed by subsection 3, the visitor appointed for an adult under subsection 2 shall:

A. Interview the petitioner and proposed conservator, if any;

B. Review financial records of the respondent, if relevant to the visitor's recommendation under subsection 5, paragraph B;

C. State whether the respondent's needs could be met by a less restrictive alternative, including a protective arrangement instead of conservatorship and, if so, identify the less restrictive alternative; and

D. Investigate the allegations in the petition and any other matter relating to the petition as the court directs.

5. Report. A visitor appointed for an adult under subsection 2 shall file a report in a record with the court at least 10 days before any hearing on the petition. The report must include:

A. Whether or not the respondent wants to challenge any aspect of the proceeding or to seek any limitation on the conservator's powers;

B. A recommendation whether an attorney should be appointed to represent the respondent;

C. A recommendation:

(1) Regarding the appropriateness of conservatorship, or whether a protective arrangement instead of conservatorship or other less restrictive alternatives for meeting the respondent's needs are available;

(2) If a conservatorship is recommended, whether it should be full or limited; and

(3) If a limited conservatorship is recommended, the powers to be granted to the conservator and the property that should be placed under the conservator's control;

D. A statement of the qualifications of the proposed conservator and whether the respondent approves or disapproves of the proposed conservator;

E. A recommendation whether a further professional evaluation under section 5-407 is necessary;

F. A statement whether the respondent is able to attend a hearing at the location court proceedings are typically conducted;

G. A statement whether the respondent is able to participate in a hearing and that identifies any technology or other form of support that would enhance the respondent's ability to participate; and

H. Any other matter as the court directs.

§ 5-406. Appointment and role of attorney

1. Attorney for respondent. The court shall appoint an attorney to represent a respondent in a proceeding on a petition under section 5-402 if:

A. Requested by the respondent;

B. Recommended by the visitor;

C. The court determines that the respondent needs representation; or

D. It comes to the court's attention that the respondent wishes to contest any aspect of the proceeding or to seek any limitation on the proposed conservator's powers.

2. Duties of attorney. The attorney representing the respondent in a proceeding on a petition under section 5-402 shall:

A. Make reasonable efforts to ascertain the respondent's wishes;

B. Advocate for the respondent's wishes to the extent reasonably ascertainable; and

C. If the respondent's wishes are not reasonably ascertainable, advocate for the result that is the least restrictive option in type, duration and scope, consistent with the respondent's interests.

3. Attorney for parent of minor. The court may appoint an attorney to represent a parent of a minor who is the subject of a proceeding on a petition under section 5-402 if:

A. The parent objects to appointment of a conservator;

B. The court determines that counsel is needed to ensure that consent to appointment of a conservator is informed; or

C. The court otherwise determines the parent needs representation.

§ 5-407. Professional evaluation

1. Evaluation; report. The respondent must be examined by a licensed physician or psychologist who is acceptable to the court, who is qualified to evaluate the respondent's alleged cognitive and functional abilities and limitations and who will not be advantaged or disadvantaged by a decision to grant the petition and does not otherwise have a conflict of interest. The individual conducting the evaluation shall file a report in a record with the court at least 10 days before any hearing on the petition. Unless otherwise directed by the court, the report must contain:

A. A description of the nature, type and extent of the respondent's cognitive and functional abilities and limitations with regard to the management of the respondent's property and financial affairs;

B. An evaluation of the respondent's mental and physical condition and, if appropriate, educational potential, adaptive behavior and social skills;

C. A prognosis for improvement with regard to the ability to manage the respondent's property and financial affairs; and

D. The date of the examination on which the report is based.

2. Right to decline. The respondent has the right to decline to participate in an evaluation ordered under subsection 1.

§ 5-408. Attendance and rights at hearing

1. Attendance by respondent required. Except as otherwise provided in subsection 2, a hearing under section 5-403 may proceed only if the respondent attends the hearing. If it is not reasonably feasible for the respondent to attend a hearing at the location court proceedings typically are conducted, the court shall make reasonable efforts to hold the hearing at an alternative location convenient to the respondent or allow the respondent to attend the hearing using real-time audiovisual technology.

2. Hearing without respondent; findings. A hearing under section 5-403 may proceed without the respondent in attendance if the court finds by clear and convincing evidence that:

A. The respondent consistently and repeatedly has refused to attend the hearing after having been fully informed of the right to attend the hearing and the potential consequences of failing to do so;

B. There is no practicable way for the respondent to attend and participate in the hearing even with appropriate supportive services and technological assistance; or

C. The respondent is a minor who has received proper notice and attendance would be harmful to the minor.

3. Assistance to respondent. The respondent may be assisted in a hearing under section 5-403 by a person or persons of the respondent's choosing, assistive technology or an interpreter or translator, or a combination of these supports. If assistance would facilitate the respondent's participation in the hearing but is not otherwise available to the respondent, the court shall make reasonable efforts to provide it.

4. Attorney for respondent. The respondent has a right to choose an attorney to represent the respondent at a hearing under section 5-403.

5. Rights of respondent at hearing. At a hearing under section 5-403, the respondent may:

A. Present evidence and subpoena witnesses and documents;

B. Examine witnesses, including any court-appointed evaluator and the visitor; and

C. Otherwise participate in the hearing.

6. Attendance by proposed conservator required. Unless excused by the court for good cause, the proposed conservator shall attend a hearing under section 5-403.

7. Closed upon request; good cause. A hearing under section 5-403 must be closed on request of the respondent and a showing of good cause.

8. Participation; best interest of respondent. Any person may request to participate in a hearing under section 5-403. The court may grant the request, with or without hearing, on determining that the best interest of the respondent will be served. The court may attach appropriate conditions to the person's participation.

§ 5-409. Confidentiality of records

1. Matter of public record; exceptions. The existence of a proceeding for or the existence of conservatorship is a matter of public record unless the court seals the record after:

A. The respondent, the individual subject to conservatorship or the parent of a minor subject to conservatorship requests the record be sealed; and

B. Either:

(1) The petition for conservatorship is dismissed; or

(2) The conservatorship is terminated.

2. Access to records. An individual subject to a proceeding for a conservatorship, whether or not a conservator is appointed, an attorney designated by the individual and a person entitled to notice under section 5-411 or a subsequent order are entitled to access court records of the proceeding and resulting conservatorship, including the conservator's plan and report. In addition, a person for good cause may petition the court for access to court records of the conservatorship, including the conservator's plan and report. The court shall grant access if access is in the best interest of the respondent or individual subject to conservatorship or furthers the public interest and does not endanger the welfare or financial interests of the respondent or individual.

3. Reports; availability. A report under section 5-405 of a visitor or professional evaluation under section 5-407 is confidential and must be sealed on filing but is available to:

A. The court;

B. The individual who is the subject of the report or evaluation, without limitation as to use;

C. The petitioner, visitor and petitioner's and respondent's attorneys, for purposes of the proceeding;

D. An agent appointed under a power of attorney for finances in which the respondent is identified as the principal, unless the court orders otherwise; and

E. Other persons when it is in the public interest or for a purpose the court orders for good cause.

§ 5-410. Who may be conservator; priorities

1. Priority for appointment. Except as otherwise provided in subsection 3, the court in appointing a conservator shall consider persons otherwise qualified in the following order of priority:

A. A conservator, other than a temporary or emergency conservator, currently acting for the respondent in another jurisdiction;

B. A person nominated as conservator by the respondent, including the respondent's most recent nomination made in a power of attorney for finances;

C. An agent appointed by the respondent to manage the respondent's property under a power of attorney for finances;

D. A spouse or domestic partner of the respondent; and

E. A family member or other individual who has exhibited special care and concern for the respondent.

2. Equal priority. With respect to persons having equal priority under subsection 1, the court shall select as conservator the person the court considers best qualified. In determining the best qualified person, the court shall consider the potential conservator's relationship with the respondent, the potential conservator's skills, the expressed wishes of the respondent, the extent to which the potential conservator and the respondent have similar values and preferences and the likelihood that the potential conservator will be able to satisfy the duties of a conservator successfully.

3. Appointment based on best interest of respondent. The court, acting in the best interest of the respondent, may decline to appoint as conservator a person having priority under subsection 1 and appoint a person having a lower priority or no priority.

A. The individual is related to the respondent by blood, marriage or adoption; or

B. The court finds by clear and convincing evidence that the person is the best qualified person available for appointment and the appointment is in the best interest of the respondent.

5. Long-term health care institution; exceptions. An owner, operator or employee of a long-term health care institution at which the respondent is receiving care may not be appointed as conservator unless the owner, operator or employee is related to the respondent by blood, marriage or adoption.

§ 5-411. Order of appointment

1. Conservator for minor; findings. A court order appointing a conservator for a minor must include findings to support appointment of a conservator and, if a full conservatorship is granted, the reason a limited conservatorship would not meet the identified needs of the minor.

2. Conservator for adult; findings. A court order appointing a conservator for an adult must include a clear finding that:

A. The identified needs of the respondent cannot be met by a protective arrangement instead of conservatorship or other less restrictive alternatives, including use of appropriate supportive services, technological assistance or supported decision making; and

B. Clear and convincing evidence established the respondent was given proper notice of the hearing on the petition.

3. Basis for full conservatorship. A court order establishing a full conservatorship for an adult clearly must state the basis for granting a full conservatorship and include specific findings to support the conclusion that a limited conservatorship would not meet the functional needs of the adult.

4. Limited conservatorship; powers granted to conservator. A court order establishing a limited conservatorship must state clearly the property placed under the control of the conservator and the powers granted to the conservator.

5. Notice; access to reports and plans. The court shall, as part of an order establishing a conservatorship, identify any person that subsequently is entitled to:

A. Notice of the rights of the individual subject to conservatorship;

B. Notice of a sale of or surrender of a lease to the primary dwelling of the individual subject to conservatorship;

C. Notice that the conservator has delegated any power that requires court approval under section 5-414 or substantially all powers of the conservator;

D. Notice that the conservator will be unavailable to perform the conservator's duties for more than one month;

E. Copies of the conservator's plan and report;

F. Access to court records pertaining to the conservatorship;

G. A transaction involving a substantial conflict between the conservator's fiduciary duties and personal interests;

H. Notice of the death or significant change in the condition of the individual subject to conservatorship;

I. Notice that the court has limited or modified the powers of the conservator; and

J. Notice of the conservator's removal.

6. Entitled to notice; exceptions. If an individual subject to conservatorship is an adult, the spouse, domestic partner and adult children of the adult subject to conservatorship are entitled under subsection 5 to notice unless the court determines notice would be contrary to the preferences or prior directions of the adult subject to conservatorship or not in the best interest of the adult subject to conservatorship.

7. Notice when minor is subject to conservatorship. If an individual subject to conservatorship is a minor, each parent and adult sibling of the minor is entitled under subsection 5 to notice unless the court determines notice would not be in the best interest of the minor.

§ 5-412. Notice of order of appointment; rights

1. Notice of appointment, order; rights. A conservator appointed under section 5-401 shall give to the individual subject to conservatorship and to all other persons given notice under section 5-403 a copy of the order of appointment, together with a notice of the right to request termination or modification. The order and notice must be given not later than 14 days after the appointment.

2. Notice if person missing. If a conservator is appointed under section 5-401, subsection 2, paragraph A, subparagraph (2) and the individual subject to conservatorship is missing, notice under subsection 1 to the individual is not required.

§ 5-413. Emergency conservator

1. Appointment; findings. On petition by a person interested in an individual's welfare or on its own after a petition has been filed under section 5-402, the court may appoint an emergency conservator for the individual if the court finds:

A. Appointment of an emergency conservator is likely to prevent substantial and irreparable harm to the respondent's property or financial interests;

B. No other person appears to have authority and willingness to act in the circumstances; and

C. There is reason to believe that a basis for appointment of a conservator under section 5-401 may exist.

2. Duration of emergency conservatorship. The duration of authority of an emergency conservator may not exceed 60 days and the emergency conservator may exercise only the powers specified in the order. The emergency conservator's authority may be extended once for not more than 120 days if the court finds that the conditions for appointment of an emergency conservator in subsection 1 continue.