MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision: 2013 ME 18
Docket:   Pen-12-276
Argued:   December 13, 2012
Decided:  February 12, 2013

Panel:       SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and
             JABAR, JJ.


                          GUARDIANSHIP OF HELEN F.

MEAD, J.

         [¶1] Helen F. appeals from the judgment of the Penobscot County Probate

Court (Woodcock, J.) adjudicating her to be incapacitated and appointing the

Department of Health and Human Services (the Department) as her guardian and

conservator. We vacate the judgment and remand the case for further proceedings.

                                 I. BACKGROUND

         [¶2] In March 2012, the Department filed joined petitions in the Penobscot

County Probate Court seeking the appointment of a public guardian and

conservator for Helen. The court appointed an attorney to represent her and held a

hearing on the joined petitions on May 10, 2012. The hearing was not recorded.

The court issued its order adjudicating Helen incapacitated and appointing the

Department as Helen’s full public guardian and public conservator on

May 11, 2012.
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      [¶3] Helen appealed and filed a statement of the evidence pursuant to M.R.

App. P. 5(d). The Department objected to Helen’s statement as being incomplete

and proposed additional facts. The Probate Court reviewed the statements and

approved both of them, but noted: “By my recollection, the statements contain

mostly accurate information, but I do not recall the details of the case.”

                                 II. DISCUSSION

      [¶4] Fundamental personal liberty interests are at stake in guardianship

proceedings. Matter of Howes, 471 A.2d 689, 691 (Me. 1984) (“The appointment

of a guardian for an incapacitated person affects the fundamental personal liberty

of the prospective ward.”). For Helen, these interests include losing her rights to

care for herself, determine where she will live, make decisions regarding her

medical care, and manage her assets. The importance of these liberties cannot be

overstated: “No right is held more sacred, or is more carefully guarded, by the

common law, than the right of every individual to the possession and control of his

own person, free from all restraint or interference of others, unless by clear and

unquestionable authority of law.” In re Gardner, 534 A.2d 947, 950 (Me. 1987)

(quoting Union Pacific Ry. v. Botsford, 141 U.S. 250, 251 (1891)). Recognition of

these fundamental rights in Howes led to the amendment of the probate code “so as

to encourage the development of maximum self reliance and independence of the

incapacitated person.” Guardianship of Collier, 653 A.2d 898, 900-01 (Me. 1995)
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(quoting 18-A M.R.S.A. § 5-304(a) (Supp. 1994)). When a guardianship order is

appealed, the availability of an adequate record is essential because, absent an

accurate record, meaningful appellate review is impossible.

      [¶5] As was the case here, where a hearing is unrecorded, M.R. App. P. 5(d)

permits parties to prepare a statement of the evidence and submit it to the trial

court for approval. See, e.g., State v. Milliken, 2010 ME 1, ¶ 11, 985 A.2d 1152.

Once approved, the statement is included in the record on appeal.

M.R. App. P. 5(d). The requirements of Rule 5(d) have not been met here because

the statement of the evidence had not been approved by the Probate Court.

Creating a Rule 5(d) record requires that the trial court review the statement of the

evidence and remember the proceeding. See Cates v. Donahue, 2007 ME 38, ¶ 2,

916 A.2d 941 (noting that it was “good practice” for “[t]he court [to] review[]

[appellant’s] statement of the evidence, ma[k]e some modifications and additions

to it based on its recollection of the proceedings, and approve[] the statement as

modified.”). The court’s statement that it “do[es] not recall the details of the case”

effectively invalidates the purported approval of the Rule 5(d) record.

Accordingly, Helen’s case is before us without any acceptable record of the

proceedings below.

      [¶6] We have held that appellants have the burden to furnish an adequate

record for consideration on appeal and, in the absence of a record, we will assume
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that the record would have supported the trial court’s findings of fact. See, e.g.,

Greaton v. Greaton, 2012 ME 17, ¶ 2, 36 A.3d 913; Town of Porter v. Blevens,

2009 ME 48, ¶ 2, 970 A.2d 286; Clark v. Heald, 2009 ME 111, ¶ 2, 983 A.2d 406;

Edwards v. Campbell, 2008 ME 173, ¶ 10, 960 A.2d 324.

      [¶7] We have recognized an exception to this general rule, however, in

situations “where transcripts are unavailable through no fault of the appellant.”

Milliken, 2010 ME 1, ¶ 13, 985 A.2d 1152. In State v. Dickinson, for example, we

held that the defendant should be resentenced because the court reporter lost his

notes of the sentencing hearing and was unable to transcribe the hearing.

662 A.2d 202, 204 (Me. 1995). Likewise, the trial court’s inability to remember

Helen’s case, and Helen's corresponding inability to provide an adequate statement

of the evidence pursuant to M.R. App. P. 5(d), is no fault of Helen’s. We therefore

vacate the judgment and remand for a de novo adjudication of Helen’s capacity.

      The entry is:

                      Judgment vacated.        Remanded for       further
                      proceedings consistent with this opinion.
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On the briefs:

        Audrey B. Braccio, Esq., Pelletier & Faircloth, Bangor, for appellant Helen
        F.

        William J. Schneider, Attorney General, and Katherine Greason, Asst. Atty.
        Gen., Office of the Attorney General, Augusta, for appellee Department of
        Health and Human Services


At oral argument:

        Audrey B. Braccio, Esq., for appellant Helen F.

        Katherine Greason, Asst. Atty. Gen., for appellee Department of Health and
        Human Services



Penobscot County Probate Court docket number 2012-193
FOR CLERK REFERENCE ONLY
