Probate Court May Appoint Public Guardian in Absence of Suitable Private Guardian

Colleen McIntosh suffered from schizophrenia and spent five years in various psychiatric hospitals. Concerned about her diagnosis and with the negative impact of constant medication changes Colleen was requesting, the Maine Department of Health and Human Services sought full guardianship authority to oversee Colleen’s medical care and financial management. Although Colleen’s mother had expressed interest in serving as Colleen’s guardian, the Department argued that her mother, serving as Representative Payee for Colleen’s Social Security benefits, had not provided any financial support to Colleen while hospitalized, and that she would also likely agree with Colleen’s request to change medications counter to physician recommendations. Following a full hearing the probate court determined Colleen to be an incapacitated person and appointed the Department as her guardian.

On appeal, the Maine Supreme Court held that there was clear and convincing evidence to support an order finding incapacity and warranting the appointment of the Department as public guardian. Colleen was appointed a court visitor, she had the opportunity to be present and testify at a hearing, all interested parties were served, and a hearing was conducted in a manner consistent with Colleen’s due process rights. The medical evidence verified Colleen’s incapacity, justifying the need for a guardianship. In determining the appropriate guardian, the court stated that a public guardian cannot be appointed when a suitable private guardian is willing to serve. In this case, however, there was sufficient evidence to show that Colleen’s mother would be unable to appropriately manage her daughter’s finances or address her medical needs outside of a hospital setting, and thus appointment of a public guardian was proper.

Guardianship of McIntosh, 2015 WL 4529747 (Me. July 1, 2015)