Augusta, Maine — A new analysis by Disability Rights Maine highlights a concerning trend in the state’s guardianship system, revealing that an overwhelming majority of adults placed under court-appointed guardians have no legal representation. The study, covering the years 2019 to 2021, exposes that 75% of these individuals did not have an attorney to advocate for their rights during the critical moments when their autonomy was being removed.
Disability Rights Maine, under the leadership of Legal Director Lauren Wille, has been pivotal in addressing this issue, striving to rectify cases where the rights of adults, especially those with developmental disabilities, are compromised. Wille, who has extensive experience in releasing dozens of adults from such legal bindings, observed that the absence of legal representation is a widespread issue among those placed in guardianships.
The hardships encountered by these individuals often stem from a lack of understanding about the implications of guardianship. Many do not fully grasp what rights they are relinquishing. Guardianship is typically imposed when a court believes an individual is incapable of making informed decisions concerning their health and safety. Although a guardian is frequently a family member, the state sometimes assumes this role.
Maine statutes guarantee the right to an attorney for anyone subject to a guardianship petition. However, this does not happen automatically. The designated respondent must either request a lawyer or the court must appoint one if there are significant disagreements about the guardianship’s nature. Additionally, Maine law mandates the appointment of a “visitor” to conduct an inquiry during the guardianship proceedings. This visitor must interview the respondent, explain their rights, including the right to legal counsel, and report findings to the judge.
Wille and other advocates argue that simply having a visitor is inadequate for safeguarding the respondent’s rights. There is a strong advocacy push for ensuring every person in such legal proceedings has dedicated legal representation.
The study further found that lack of representation leads to a higher likelihood of respondents being placed under full guardianships, where they lose control over all personal decision-making, rather than lesser restrictive measures. The statistical analysis also indicated a higher rate of guardianship imposition in cases without attorney representation.
Lincoln County Probate Judge William Avantaggio suggested these findings might reflect a correlation rather than causation. According to Avantaggio, more profound guardianship cases, often clear-cut due to medical reports and observations, may not necessitate legal representation as frequently. Meanwhile, cases where a lawyer is deemed necessary often pertain to circumstances with less severe guardianship needs.
Nationally, the frequency of unrepresented guardianship cases, like those reported in Maine, is not well documented. This lack of data complicates efforts to compare Maine’s situation with other states.
Guardianship proceedings are handled by county-based probate courts in Maine. These courts are distinct from the state judiciary system, operating independently with part-time, elected judges. Costs for attorneys assigned to guardianship cases can be covered either from the respondent’s assets or by the county if the individual is unable to afford legal fees.
This issue of legal representation in guardianship cases is part of broader challenges within Maine’s judiciary concerning the availability of effective legal advocacy. Recently, the state has taken measures such as opening its first public defender offices to address similar deficiencies in other legal areas.
Advocates like Wille continue to push for reforms to ensure that all individuals facing potential guardianship have access to legal counsel, aligning with the state’s model law that views such measures as a last resort and promotes less restrictive alternatives wherever possible.
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