State officials have expressed interest in strengthening the probate courts’ oversight of vulnerable Mainers and preventing elder abuse, after an investigation by The Maine Monitor this year revealed gaps in how these courts monitor guardians, conservators and estates.
Some lawmakers and advocates for aging Mainers and people with disabilities reacted with alarm this year when a Maine Monitor investigation uncovered systemic problems with the state’s 16 independent, county-run probate courts.
The issues plaguing Maine’s probate courts have been studied for more than five decades.
“The time for study is over and a lasting systemic solution is overdue,” said Jaye Martin, executive director of a Maine legal aid nonprofit, Legal Services for the Elderly. “This is a complex arena but it is vital to the well-being of many, and we need to get it right.”
Martin said lawmakers should adopt the nearly unanimous recommendations of a state study group — the Commission to Create a Plan to Incorporate the Probate Courts into the Judicial Branch — that in 2021 proposed making the probate courts a part of the state judicial branch, selecting probate judges with the same standards as the rest of the state’s judges, and providing money for lawyers, guardian ad litem (to represent those not capable of representing themselves in lawsuits) and visitors throughout the court process.
The probate courts are unique and have the state’s only elected and part-time judges. They are also separate from the judicial branch.
The Monitor’s reporting this year showed that “the challenges facing those who require the services of our probate system are only getting worse,” Martin said.
Gov. Janet Mills is open to ideas that would strengthen protections for people served by the probate courts, according to her spokesman, Ben Goodman. But Mills did not commit to specific reforms.
Her most recent budget included $4 million to reduce abuse, neglect and exploitation of older Mainers and people with disabilities by adding employees to Adult Protective Services, and supporting free legal aid services through Legal Services for the Elderly, among other investments.
“The governor welcomes collaboration with partners and the legislature to examine ways – including through the budget — that we can continue to strengthen both public and private efforts to prevent and effectively respond to elder abuse,” Goodman wrote.
Searching for solutions
The Monitor’s investigation found:
• Maine’s probate courts do not employ investigators to check on vulnerable adults under guardianship.
• Probate courts only recently began keeping track of guardianships. Several do not know how many people are under guardianship in their county, or if these adults are alive or dead.
• Eight adults under public guardianship and in the state’s care died in unexplained ways in the past three years. One woman’s death was deemed a homicide by state medical examiners, but the attorney general’s office declined to prosecute her case.
• The Maine Department of Health and Human Services has failed to follow a state law for 26 years that requires it to report all deaths of people under public guardianship to lawmakers on the Health and Human Services Committee.
• No probate court or state entity tracks the probate courts’ use of a less restrictive alternative to guardianship, known as “supported decision-making,” and it is an option that probate judges infrequently use.
• Many probate courts do not audit the financial records submitted once a year by conservators, leaving these adults vulnerable to financial exploitation or theft.
• A constitutional amendment was passed by Maine voters 56 years ago that said probate courts should be overhauled and assigned full-time judges, but lawmakers did not take action to make that happen.
No state lawmaker has announced an intent in 2024 to push for the enactment of the mandate from voters to make probate judges full-time.
Deirdre Smith, a University of Maine professor of law, said overhauling the probate courts to create a statewide probate system, rather than 16 independent county courts, would be the most significant judicial reform the state could do.
And because voters passed the constitutional amendment, change is required, not optional, she said.
“The people of Maine spoke in 1967 and I don’t think the legislature can just disregard that. I think that is a total dereliction of their duty,” Smith said. “The voters of Maine gave an order, a mandate, to the legislature, which is to come up with a different probate court system that has full-time judges.”
Smith said the best and most efficient way to do that was outlined by the 2021 study commission, which included input from probate judges, registers, advocates and lawmakers.
“There’s room for the legislature to tighten things up and make more sense out of the flaws that they may perceive with the probate system,” Sagadahoc County Probate Judge David Paris told the Monitor.
Paris said he is opposed to making the probate courts part of the Maine judicial system, but that changes to state law would set consistent standards across the 16 probate courts.
Legislators could require the probate courts to complete criminal background checks of prospective guardians and conservators, Paris said. They could also change state law so that conservators are required to file an accounting of assets twice a year, rather than annually, so the probate judges and office staff can keep better track of how the money of a person under conservatorship is being spent, he said.
The probate courts also could consider expanding the role of court-appointed “visitors” to check on people under guardianship more frequently, he said.
Paris said he did not think Maine needed to hire auditors like the Minnesota Judicial Branch, which more than a decade ago launched a conservator auditing team to do in-depth financial reviews.
“We do take out our calculators. We do look through the expenses, and if something raises a question we’ll pursue it,” Paris said.
Thomas Marshall, 72, a Rockland resident who reached out after reading the Monitor’s series, said volunteers may be another way for Maine to put extra eyes on conservators and guardians.
Prior to moving to Maine, Marshall lived in New Jersey and volunteered around six hours a week reviewing financial statements and narratives submitted to the court by guardians mostly for adults with intellectual or developmental disabilities. He looked for changes in expenses or fees being charged by lawyers or family members serving as guardians, and concerning cases were sent to a court-employed investigator.
“It provided consistency of oversight for everyone. Whether it was court-appointed attorneys, family attorneys or family itself, the oversight of what was happening to these people and their assets … was consistent across the board,” Marshall said.
Calls to modernize guardianship
State lawmakers and people with disabilities have said they would like to see improvements in how probate courts will monitor guardians.
Cindy Thielen, 31, was diagnosed with autism and under the guardianship of her mother for 11 years before successfully petitioning the probate court to terminate the arrangement, the Monitor reported.
Based on her experience, Thielen said probate judges need to follow the law and consider supported decision-making before guardianship.
“Supported decision-making” is a nationally recognized tool used by those with disabilities to help them assess the consequences of big and small decisions. Maine laws that went into effect in late 2019 require probate judges to consider this alternative before appointing a guardian.
“I’ve known a couple people who are under guardianship where it was the best thing to do at the time based on their disabilities, but I would love to see them have the chance to thrive under supported decision-making someday,” Thielen said.
Thielen said state lawmakers need to modernize how the probate courts keep track of people under guardianship and what is going on in their lives, she said.
Thielen was not appointed an attorney to advocate for her when her mom filed a petition for guardianship in the Hancock County Probate Court in 2011, when Thielen was 19. Thielen was appointed a lawyer for the first time after asking the probate court in 2015 to terminate the guardianship.
“Hiring more people and giving people representation right from the get-go would be a great start,” Thielen said.
Adults subject to a guardianship petition are advised by the court that they have the right to hire a lawyer to defend them in probate court, but also are told that the cost of a lawyer may come out of their own pockets. Probate judges can waive those fees, the Monitor reported.
All 10 probate courts that responded to a Monitor survey earlier this year said judges will assign an attorney if the person opposes a guardianship.
A state bill proposed in 2019 would have required lawyers for all adult guardianship cases. Probate judges were among the stakeholders to object, in part because of the added cost to county budgets. The bill did not pass.
Thielen said Maine lawmakers should also create a way for people to report if something has gone wrong to a person under guardianship. She pointed to the audit and fraud detection programs used by the courts in Florida and Minnesota that were featured in a recent Monitor article.
Lacking prosecutorial manpower
In one example after another, the Monitor found that the life savings of Mainers were spent down by conservators, taken by family members, or sometimes redirected in wills to once-trusted lawyers for their personal gain in the probate courts.
Financial exploitation of older Mainers is the third-most common allegation investigated by Adult Protective Services, a recent state study showed. But Maine has limited prosecutorial resources to pursue these kinds of theft cases.
The state attorney general’s office employs one prosecutor and one investigator for elder fraud. None of the eight district attorney offices employ a prosecutor whose work is exclusively devoted to elder fraud cases, according to Kathryn Slattery, the district attorney for York County, in a statement on behalf of the Maine Prosecutors’ Association.
“Although we would like to do so, we simply do not have the personnel or resources necessary to meet our current obligations,” Slattery wrote.
Dedicated elder fraud prosecutors in each district attorney’s office was a top priority recommendation in a December 2021 report about elder issues, which was supposed to be Maine’s “road map” to preventing exploitation and abuse of the state’s aging population.
This year the prosecutors’ association asked the legislature to fund 10 additional prosecutor positions across the state to keep up with current workloads in the recovery courts, specialty dockets and diversion programs. The request is sitting on the state’s appropriations table.
R. Christopher Almy, the district attorney for Penobscot and Piscataquis counties, said even if an additional prosecutor was added to his office, the prosecutor would not be dedicated to elder crimes. Instead, prosecutors need to be jacks of all trades to work through the 5,000 to 6,000 cases the office manages each year with 10 or 11 people.
“There’s no way we would be able to do that. We’re inundated with cases. We don’t have enough people to take that sole responsibility. That would be impossible. There aren’t that many cases anyway,” Almy said.
Police departments report only a few cases to his office each year where an older Mainer has been defrauded, Almy said. Often the charge would be theft, which makes it difficult for the district attorney offices to say how many elder fraud cases they pursue each year, he said.
Plus, prosecutors can only go to court when they have enough evidence to prove a crime beyond a reasonable doubt, Almy said.
“The problem with it is we have to have witnesses. And if we don’t have witnesses that are able to testify, you’ve got your foot in the bucket,” Almy said.
The Maine attorney general’s office asked to add a forensic auditor position in the last state budget, but lawmakers did not approve funding, wrote agency spokeswoman Danna Hayes.
Since 2020, the attorney general’s office has filed charges in six cases involving elder fraud. The cases run the gamut from home contractors who scammed elderly clients for work that was never completed, all the way up to manslaughter.