Lauren Wille, the legal director of Disability Rights Maine, has helped dozens of adults with developmental disabilities get out of guardianships — arrangements in which a guardian is appointed by the court to make decisions for another person.
In nearly all of those cases, the person placed in a guardianship didn’t have legal representation during the proceedings that removed their right to self-autonomy, Wille said.
“A common story we hear is: I don’t think I realized at the time exactly what it was I was agreeing to, or what I was giving up,” Wille said.
People are placed in guardianship when a court determines they do not have the ability to make informed decisions about their health and safety. Often, the guardian is a family member. In some circumstances, it is the state.
A new report from Wille’s organization released last week is one of the first efforts to examine how often adults are placed in guardianships without legal representation. Disability Rights Maine found that between 2019 and 2021, adults placed in guardianships in Maine did not have an attorney 75 percent of the time. The rate was even higher — 90 percent — for adults with developmental disabilities.
Under Maine law, a person is entitled to an attorney if a petition is filed to place them in a guardianship. But legal representation is not automatic for those people, called respondents. The respondent has to ask for one, or the court can appoint one if a judge feels there are disagreements over the nature of the arrangement.
The law also stipulates that a “visitor” be appointed to conduct an investigation during guardianship proceedings. The visitor is required to interview the respondent, gather their views about the guardianship, explain their right to an attorney and report to the judge. That person is often a lawyer, although not always.
But Wille believes a visitor isn’t enough to protect the rights of respondents. Every person subject to guardianship proceedings should have an attorney representing their interests, she said.
More than 90 percent of the guardianships examined by Disability Rights Maine were “full guardianships,” a type of guardianship in which the guardian has control over all decision-making.
The report also found a correlation between a lack of attorney and higher rates of guardianship for respondents. In 2021, guardianships were imposed 79 percent of the time when the respondent was unrepresented, but just 67 percent of the time when the respondent had legal representation. The analysis found similar rates for 2019 and 2020.
People without an attorney, the report found, were more likely to be placed in full guardianships instead of less restrictive alternatives.
The fact that cases without attorneys produce higher rates of guardianships is likely a matter of correlation, not causation, said Lincoln County Probate Judge William Avantaggio.
“Typically, if the need for a guardian is profound and obvious from the medical report, visitor’s observations, and the hearing, an attorney is less likely and the authority of the guardian is greater,” Avantaggio wrote in an email. “In those cases where the Respondent is astute enough to request an attorney or the Visitor advises that an attorney be appointed, the need is generally less profound and so the scope of the guardianship is less.”
It’s unclear how Maine’s rates rank nationally. Wille was not aware of similar analyses in other states.
Guardianship cases are heard in county-based probate courts, which operate separately from the state judicial system. Judges are part-time and elected, not appointed. Attorneys assigned to respondents in guardianship cases are either paid from the respondent’s assets or the county if the respondent can’t afford an attorney.
The Disability Rights Maine analysis follows reporting by The Maine Monitor last year that detailed a lack of data collection and audit procedures related to guardianships in many of the state’s probate courts.
Based on survey responses from 10 of the state’s probate courts, The Monitor found that some were doing little to assess a potential guardian’s fitness for the role, and that some probate courts did not know if the adults under guardianship were alive or dead.
In 2018, Maine was the first state to replace its decades-old probate code using a model law developed by a group of national stakeholders, based on the idea that guardianships should be a measure of last resort.
Instead, “less restrictive alternatives, such as Supported Decision-Making, assistive technology, powers of attorney, and use of representative payees” should be used, the DRM report said.
The model law “envisioned a lawyer in virtually every case,” Wille said.
However, Maine is already failing to provide lawyers for criminal defendants and parents in child protective proceedings. The state has opened its first public defender offices to help staff those cases.
In 2021, former state Rep. Barbara Cardone (D-Bangor) introduced a bill requiring probate courts to assign attorneys to respondents in guardianship proceedings unless the respondent “knowingly and voluntarily” refuses an attorney. The bill was supported by the Maine ACLU, Disability Rights Maine and the Maine AARP.
But it faced opposition from the Maine County Commissioners Association and the Maine Association of Registers of Probate, who argued it would create unnecessary new costs and delays and force respondents to pay for an attorney if the “knowingly and voluntarily” standard wasn’t reached.
“For the many proceedings where all parties are in agreement and looking for a rapid disposition by the Probate Court, such proceedings could very well end up with appointed counsel — at county or individual expense — because refusing counsel would require time consuming and expensive litigation to prove a voluntary waiver of Counsel,” wrote Maine County Commissioners Association president Stephen Gordon in his testimony.
The bill passed out of committee but was never picked up by the full House.
For Wille, getting more respondents legal representation is a means to an end. And that end is “less guardianship.”
“We’re overly reliant on guardianship, particularly full guardianship,” Wille said.
When a court is considering “removing virtually all of someone’s basic rights,” she said, the process should involve the same amount of legal protections as other instances in which the court is removing rights, such as when a court is incarcerating someone or terminating their parental rights.
“It should be hard to do,” Wille said.
