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Guardianship of an Incapacitated Person

What is guardianship?

Elderly man talking to guardian.
Placing an incapacitated loved one under guardianship is a difficult decision. We have the experience and compassion to help guide you through the process.

Guardianship is when a person is legally appointed to make decisions on behalf of an individual who a judge finds to be “incapacitated”, which means the person is impaired to the extent that he or she is unable to make quality decisions about his or her care. 

How is one determined to be legally incapacitated?

To determine incapacity, the court will consider whether the person is incapable of understanding or communicating responsible decisions about his or her person as a result of mental illness, mental deficiency, physical illness, chronic drug use, or chronic intoxication.    

How to obtain guardianship for an incapacitated person

  • Petition: A guardianship proceeding for an incapacitated person starts by filing a petition for appointment of a guardian in the county Probate Court.  
  • Acceptance of proposed guardian: The party seeking to be appointed the guardian must also file forms agreeing to accept the role, as well as the proposed guardian’s plans on how he or she intends to meet the physical and social needs of the incapacitated person. 
  • Doctor’s recommendation: The court will also require that a doctor’s report be filed with the court stating the incapacitated person’s diagnosis, capabilities, and likely prognosis.
  • Court hearing to determine incapacity: The court will grant a hearing where the Probate Judge will weigh the evidence and testimony and decide if the person is incapacitated and requires someone to provide for his or her care and supervision.

What happens once a guardian has been appointed?

Once a guardian is appointed, the guardian’s responsibilities are very similar to the powers and responsibilities parents have for their children. Unless limited by the court, a guardian has authority over the incapacitated person’s physical care. This includes authority over the incapacitated person’s body, place of residence, medical treatment, education, and social needs. As well, a guardian may have limited authority over the incapacitated person’s finances to pay his or her bills and expenses provided that these needs are not being met by a court appointed Conservator.  

Is guardianship the right decision for my loved one?

Placing an incapacitated loved one under guardianship is a difficult decision and one that should not be taken lightly. Having a person adjudicated as incapacitated and a guardian appointed places severe limitations on that person’s liberty. Given the seriousness of these limitations, and the needs an incapacitated person may have, the Maine courts have developed a complex set of forms and rules that allows for the close scrutiny of the process. Download this document for more information about adult guardianship/conservatorship in Maine or read the statutes governing protection of persons under disability and their property.

How we can help

Our skilled attorneys have the experience and compassion to help guide you through this difficult process so that you can ensure your loved one’s needs are properly met. Please give us a call at 1-800-660-3713 or submit a free inquiry and we can discuss your unique situation and see what we can do to help. 

Photo Credit: Tommy Hemmert Olesen via Compfight cc