MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2017	ME	125	
Docket:	      Wal-16-120	
Submitted	 	
  On	Briefs:	 November	29,	2016	
Decided:	     June	20,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
         GUARDIANSHIP	AND	CONSERVATORSHIP	OF	VINCENT	M.	JONES	
	
	
HJELM,	J.	

         [¶1]		Kenneth	E.	Jones,	conservator	and	guardian	for	his	son	Vincent	M.	

Jones,	 and	 Susan	 C.	 Thiem,	 Esq.,	 Kenneth’s	 counsel,	 appeal	 from	 two	 orders	

issued	by	the	Waldo	County	Probate	Court	(Longley,	J.).1		In	the	first	of	these	

orders,	the	court	dissolved	and	replaced	a	supplemental	needs	trust	that	had	

been	 created	 for	 Vincent’s	 estate.	 	 Kenneth	 argues	 that,	 for	 several	 reasons,	

the	 court	 was	procedurally	 barred	 from	 creating	 a	 new	 trust	 for	 Vincent.		In	

the	 second	 order	 at	 issue	 on	 this	 appeal,	 the	 court	 directed	 Attorney	 Thiem,	

who	 created	 the	 original	 trust,	 to	 disgorge	 legal	 fees	 paid	 to	 her	 by	 Vincent	

and	 conditionally	 to	 pay	 additional	 amounts.	 	 Attorney	 Thiem	 argues	 on	

appeal	 that	 this	 order	 deprived	 her	 of	 due	 process.	 	 We	 affirm	 the	 court’s	




    1		There	is	no	appellee.	
2	

order	 creating	 the	 replacement	 supplemental	 needs	 trust,	 but	 we	 vacate	 the	

payment	order	against	Attorney	Thiem	and	remand	for	further	proceedings.		

                                            I.		BACKGROUND	

        [¶2]	 	 In	 2008,	 Kenneth	 E.	 Jones	 filed	 a	 petition	 in	 the	 Waldo	 County	

Probate	Court	to	be	appointed	guardian	and	conservator	for	his	incapacitated	

adult	 son,	 Vincent	 M.	 Jones,	 because	 of	 Vincent’s	 debilitating	 mental	 illness.		

The	court	(Longley,	J.)	granted	the	petition	in	August	2008.		

        [¶3]	 	 Kenneth	 retained	 Attorney	 Thiem	 as	 counsel	 as	 early	 as	

December	2008.	 	 In	 March	 2013,	 Kenneth	 filed	 a	 petition	 with	 the	 Probate	

Court	 for	 retroactive	 judicial	 approval	 of	 a	 supplemental	 needs	 trust	

benefiting	 Vincent.2	 	 In	 the	 petition,	 Kenneth	 stated	 that	 in	 August	 2012,	

Vincent	 had	 been	 moved	 from	 a	 psychiatric	 hospital	 to	 the	 Charlotte	 White	

Center	 (CWC),	 a	 long-term	 care	 facility.	 	 Kenneth	 further	 stated	 that	 Vincent	

was	 receiving	 Social	 Security	 and	 MaineCare	 benefits,	 and	 that	 because	

Vincent	 was	 now	 a	 long-term	 care	 resident,	 he	 could	 continue	 to	 receive	

MaineCare	 benefits	 if	 less	 than	 $10,000	 were	 maintained	 in	 a	 trust.	 	 After	 a	

telephonic	hearing,	the	court	issued	an	order	in	June	2013,	concluding	that	the	
  2		A	supplemental	needs	trust,	or	supplemental	care	trust,	is	“a	type	of	trust	that	holds	funds	on	

behalf	of	a	disabled	person	.	.	.	and	that	allows	the	beneficiary’s	eligibility	for	certain	Social	Security	
and	 state	 health	 benefits	 to	 remain	 unaffected	 by	 the	 funds	 held	 in	 trust.”	 	 DeCambre	 v.	 Brookline	
Hous.	Auth.,	826	F.3d	1,	4	(1st	Cir.	2016)	(citing	42	U.S.C.S.	§	1396p(d)(4)(A)	(LEXIS	through	Pub.	L.	
No.	115-37)).			
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trust	 was	 in	 Vincent’s	 best	 interest	 and	 retroactively	 authorizing	 Kenneth	 to	

create	the	trust.			

      [¶4]	 	 In	 October	 2013,	 Kenneth	 filed	 the	 third	 account	 of	 his	

guardianship	detailing	the	assets	and	financial	transactions	of	Vincent’s	estate	

from	 June	 2012	 to	 September	 2013.	 	 See	 18-A	 M.R.S.	 §	 5-419	 (2016).	 	 The	

account	 indicated	 that	 in	 January	 2013,	 the	 estate	 had	 made	 a	 $25,000	

payment,	plus	additional	payments	totaling	$5,292,	to	CWC.		In	response,	the	

court	 appointed	 a	 visitor	 to	 “scrutinize	 the	 billing,	 determine	 if	 the	 ward	 is	

receiving	 services	 promised,	 [and]	 assess	 amounts	 charged	 to	 determine	

reasonableness	 and	 appropriateness.”	 	 See	 id.	 §	5-419(c).	 	 The	 visitor	

subsequently	 filed	 a	 letter	 with	 the	 court	 recommending	 that	 “a	 detailed	

invoice	 be	 required	 from	 CWC	 to	 confirm	 the	 reasonableness	 of	 the	 $25,000	

back	payment.”		

      [¶5]		After	holding	a	telephonic	status	conference	in	January	2014,	the	

court	 appointed	 a	 second	 visitor	 to	 research	 the	 $25,000	 payment.	 	 That	

visitor	 filed	 a	 report	 in	 May	2014,	 along	 with	 copies	 of	 an	 invoice	 for	 more	

than	 $62,000	 arising	 from	 CWC’s	 care	 of	 Vincent	 from	 August	 through	

November	2012;	correspondence	from	Attorney	Thiem	to	CWC	accompanying	

the	 $25,000	 payment	 from	 Vincent’s	 trust	 account,	 in	 which	 Attorney	 Thiem	
4	

asserted	 that	 “Medicaid	 should	 have	 paid	 for	 the	 first	 100	 days	 of	 care”	 and	

thus	 that	 $25,000	 was	 an	 overpayment;	 and	 a	 response	 from	 CWC’s	 chief	

financial	 officer.	 	 The	 CFO’s	 letter	 stated	 that	 Attorney	 Thiem	 had	

misunderstood	the	funding	sources	and	that	CWC	was	owed	for	Vincent’s	care	

until	Medicaid	began	covering	the	payments	in	December	2012,	but	that	CWC	

had	agreed	to	discount	the	charges	and	accept	$25,000	as	full	payment	as	an	

accommodation	to	Vincent.		

         [¶6]	 	 In	 July	 2014,	 Attorney	 Thiem	 filed	 a	 motion	 for	 recusal	 and	

disqualification	 of	 Judge	 Longley,	 asserting	 that	 during	 the	 January	 2014	

conference,3	the	court	“proceeded	to	berate	[Attorney	Thiem],	intimating	that	

[her]	legal	fees	were	excessive”	and	that	her	“procedural	blunders”	adversely	

affected	Vincent’s	assets.		Attorney	Thiem	subsequently	moved	to	dismiss	that	

motion	“in	light	of	the	[court’s]	threat	[allegedly	made	at	another	hearing	that	

is	not	noted	in	the	docket],	and	to	protect	my	client’s	interest.”		

         [¶7]	 	 In	 orders	 issued	 on	 September	 9,	 2014,	 the	 court	 denied	 both	

Attorney	Thiem’s	motion	to	dismiss	the	motion	to	recuse	and	the	motion	for	

recusal	 itself,	 stating	 that	 the	 court	 had	 “acted	 even-handedly	 to	 date”	 and	

could	 continue	 to	 do	 so.	 	 The	 court	 also	 issued	 an	 order	 noting	 that	 it	 had	

     3		The	record	does	not	indicate	whether	the	hearing	was	recorded,	but	in	any	event	a	transcript	

has	not	been	included	in	the	record.	
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found	a	“discrepancy”	and	a	“dramatic	change	from	the	previous	accounting”	

in	the	third	account—the	$25,000	payment	to	CWC—which,	according	to	the	

court,	 the	 conservator,	 through	 Attorney	 Thiem,	 was	 unable	 to	 adequately	

explain.	 	 In	 that	 order,	 the	 court	 concluded	 that	 an	 error	 by	 Attorney	 Thiem	

had	necessitated	the	$25,000	payment.		In	October,	the	court	ordered	Kenneth	

to	 file	 an	 explanation	 for	 “the	 $25,000	 loss	 of	 assets	 from	 [Vincent’s]	 estate”	

and	to	address	the	issue	of	“[s]anctions	for	[Attorney	Thiem]	in	light	of	delays	

and	mistakes	resulting	in	the	$25,000	loss	of	assets	from	[Vincent’s]	estate.”			

       [¶8]	 	 On	 November	 24,	 2014,	 Attorney	 Thiem	 filed	 a	 renewed	 motion	

for	 Judge	 Longley	 to	 recuse	 herself	 from	 the	 proceeding.	 	 Additionally,	

Kenneth	filed	a	petition	for	leave	to	resign	as	Vincent’s	conservator	based	on	

his	 stated	 belief	 that	 the	 court	 was	 dissatisfied	 with	 his	 actions.	 	 Kenneth	

subsequently	 filed	 both	 an	 amended	 third	 account	 and	 a	 fourth	 account	 to	

bring	the	accountings	current	through	October	2014.		Later	in	December,	the	

court	 appointed	 an	 attorney	 to	 represent	 Vincent’s	 interests	 in	 connection	

with	the	third	account	and	the	$25,000	payment	to	CWC.		

       [¶9]	 	 In	 January	 2015,	 Attorney	 Thiem	 filed	 a	 motion	 to	 withdraw	 as	

counsel	 for	 Kenneth,	 asserting	 in	 part	 that	 her	 contentious	 relationship	 with	

Judge	 Longley	 had	 made	 it	 difficult	 for	 Kenneth	 to	 carry	 out	 his	
6	

responsibilities	 as	 Vincent’s	 conservator	 and	 guardian.	 	 The	 court	 held	 a	

telephonic	conference,	in	which	Attorney	Thiem	participated,	on	February	10,	

2015.		Judge	Longley	issued	an	order	on	March	24,	2015,	denying	the	renewed	

motion	 for	 recusal	 but	 granting	 Attorney	 Thiem’s	 motion	 to	 withdraw	 as	

counsel.				

         [¶10]		This	left	several	matters	pending,	including	a	ruling	on	the	third	

and	 fourth	 accounts	 pursuant	 to	 18-A	 M.R.S.	 §	 5-419,	 and	 Kenneth’s	 petition	

to	withdraw	as	conservator.		From	June	to	December	2015,	the	court	held	five	

telephonic	 conferences	 on	 these	 outstanding	 matters,	 ultimately	 holding	 a	

hearing	over	two	days	in	January	and	February	2016.4		Ten	different	notices	of	

conference	 and	 hearing	 dates	 were	 sent	 to	 Kenneth,	 Vincent’s	 appointed	

counsel,	and	the	visitor.		None	of	the	notices	was	sent	to	Attorney	Thiem,	who	

had	already	been	given	leave	to	withdraw	from	the	case.		The	last	two	notices	

of	 hearing,	 which	 set	 out	 the	 two	 dates	 when	 the	 hearing	 was	 actually	 held,	

referred	to	the	“Court’s	Motion	to	Reform	the	Trust.”			

         [¶11]	 	 On	 the	 second	 hearing	 day,	 the	 court	 stated	 its	 view	 that	 the	

supplemental	 needs	trust	it	had	approved	 in	 2013	was	unnecessary	because	

the	 funds	 it	 was	 intended	 to	 protect	 were	 already	 exempt	 from	 MaineCare’s	


     4		The	record	on	appeal	includes	a	transcript	of	the	second	hearing	day	but	not	of	the	first.	
                                                                                                     7	

eligibility	calculations.		The	court	implied	that	Attorney	Thiem	had	conflated	

Medicaid	and	Medicare	in	her	analysis	of	Vincent’s	situation,	and	stated	that	it	

wanted	 to	 issue	 an	 order	 that	 would	 “recoup	 .	 .	 .	 the	 legal	 expenses	 paid	 to	

date	 because	 of	 the	 situation	 that’s	 resulted,	 which	 has	 been	 the	 loss	 of	

[Vincent’s]	 life	 savings.”	 	 The	 court	 further	 stated	 that	 reimbursement	 was	

needed	because	“justice	requires	that	something	be	put	in	the	[supplemental]	

needs	trust”	and	that	“a	terrible	legal	mistake	happened.”			

       [¶12]		The	court	subsequently	issued	two	orders	on	matters	addressed	

at	the	hearing.		These	orders	are	the	subject	of	this	appeal.		In	one,	issued	on	

February	 23,	 2016,	 the	 court	 found	 that	 the	 conservator,	 represented	 by	

Attorney	 Thiem,	 failed	 to	 create	 a	 trust	 in	 time	 to	 protect	 the	 $25,000	 paid	

from	 Vincent’s	 estate	 to	 CWC,	 and	 that	 Thiem’s	 legal	 fees	 of	 $3,638.35	 were	

“unreasonable	and	excessive.”5		The	court	ordered	“recovery	of	legal	fees	paid	

[Attorney]	Thiem,”	which	the	court	directed	her	to	pay	by	March	1,	2016.		The	

court	 further	 ordered	 that	 if	 Attorney	 Thiem	 did	 not	 disgorge	 her	 attorney	

fees	 by	 that	 date,	 the	 amount	 due	 from	 her	 would	 “double[]	 for	 each	 day	 of	

delay	 until	 recovery	 equals	 the	 $25,000	 loss	 of	 the	 father’s	 savings	 for	 his	

disabled	son,	plus	court	costs.”		See	infra	n.8.			


   5		In	the	order,	the	court	also	accepted	Kenneth’s	resignation	as	conservator,	and	another	person	

was	appointed	to	assume	that	responsibility.		Kenneth	continues	to	serve	as	Vincent’s	guardian.			
8	

      [¶13]		In	the	second	order,	issued	two	days	later,	the	court	dissolved	the	

supplemental	 needs	 trust	 it	 had	 approved	 post	 hoc	 in	 June	 2013.	 	 The	 court	

further	ordered	the	establishment	of	a	replacement	supplemental	needs	trust,	

and,	“[t]o	save	the	time,	money	and	energies	of	as	many	involved	as	possible,”	

the	 court	 itself	 drafted	 and	 issued	 the	 instrument	 creating	 that	 replacement	

trust.		The	court	attached	the	new	trust	instrument	to	its	order.			

      [¶14]	 	 Attorney	 Thiem	 entered	 a	 limited	 appearance	 on	 behalf	 of	

Kenneth	as	guardian	and	filed	a	“motion	to	dismiss”	the	two	February	orders.		

The	 court	 denied	 the	 motion,	 and	 Kenneth	 and	 Attorney	 Thiem	 timely	

appealed.			

                                   II.		DISCUSSION	

	     [¶15]	 	 Kenneth	 asserts	 that	 the	 court	 erred	 by	 creating	 the	 second	

supplemental	 needs	 trust	 for	 Vincent,	 and	 Attorney	 Thiem	 argues	 that	 the	

court’s	 imposition	 of	 financial	 sanctions	 against	 her	 was	 an	 abuse	 of	 its	

discretion.		We	consider	these	issues	in	turn.		

A.	   Creation	of	a	Replacement	Supplemental	Needs	Trust		

	     [¶16]		Kenneth	challenges	the	process	by	which,	in	February	2016,	the	

court	dissolved	the	trust	it	had	authorized	in	June	2013	and	created	another	

to	replace	it.		Without	raising	any	issue	about	the	substantive	provisions	of	the	
                                                                                                                      9	

successor	 trust,	 Kenneth	 argues	 that	 4	 M.R.S.	 §	 309	 (2016)	 prohibited	 the	

court	 from	 independently	 drafting	 the	 instrument	 that	 created	 the	

replacement	 supplemental	 needs	 trust	 and	 then	 approving	 that	 trust.6		

Because	Kenneth	did	not	present	this	argument	to	the	Probate	Court,	he	has	

not	 preserved	 it	 for	 appellate	 review.	 	 See	 In	 re	 Christopher	 H.,	 2011	 ME	 13,	

¶	15,	12	A.3d	64.		We	consider	the	argument,	however,	to	the	extent	that	he	

asserts	the	order	is	“void”	for	lack	of	statutory	authority	pursuant	to	section	

309.		See	Estate	of	Reed,	2016	ME	90,	¶	6,	142	A.3d	578	(“The	Probate	Court	is	

a	 statutory	 court	 of	 limited	 jurisdiction	 and	 its	 actions	 are	 void	 unless	 taken	

pursuant	to	statutory	authority.”	(quotation	marks	omitted));	Laprel	v.	Going,	

2014	ME	84,	¶	15,	96	A.3d	67.	



   6   Kenneth	also	argues	that	the	court	was	barred	by	principles	of	res	judicata	from	creating	the	
successor	supplemental	needs	trust	because	it	had	already	approved	the	first	trust.		This	argument	
is	 without	 merit.	 	 Res	 judicata	 prevents	 the	 relitigation	 of	 identical	 factual	 issues	 that,	 under	
particular	circumstances,	were	already	decided,	and	of	entire	claims	that	were	or	could	have	been	
litigated	 in	 a	 prior	 action.	 	 See	 Portland	 Co.	 v.	 City	 of	 Portland,	 2009	 ME	 98,	 ¶	 22,	 979	 A.2d	 1279.		
Here,	concluding	that	the	first	trust	did	not	accomplish	its	ostensible	objective,	the	court	created	a	
new	trust	that	it	determined	could	more	effectively	serve	Vincent’s	needs.		The	order	establishing	
the	 successor	 trust	 did	 not	 constitute	 the	 relitigation	 of	 a	 factual	 issue	 or	 cause	 of	 action,	 and	
therefore	was	not	barred	by	res	judicata.	
    	
          Additionally,	Kenneth	asserts	that	the	court	erred	by	issuing	the	supplemental	needs	trust	
of	 its	 own	 accord,	 without	 a	 motion,	 notice,	 or	 hearing.	 	 The	 partial	 record	 that	 Kenneth	 has	
provided	 shows	 that	 two	 notices	 of	 hearing	 sent	 by	 the	 clerk	 to	 Kenneth	 and	 other	 interested	
parties	in	January	2016	expressly	referred	to	the	“Court’s	Motion	to	Reform	the	Trust.”		This	was	
sufficient	 to	 place	 Kenneth	 on	 notice	 that	 the	 court	 intended	 to	 take	 up	 that	 matter.	 	 Further,	 the	
transcript	 that	 Kenneth	 did	 include	 in	 the	 record,	 which	 is	 limited	 to	 the	 second	 hearing	 date,	
demonstrates	 that,	 contrary	 to	 Kenneth’s	 contention,	 a	 hearing	 was	 held	 on	 the	 issue	 of	 a	
replacement	trust.
10	

      [¶17]		Section	309	provides	in	relevant	part,	“No	judge	of	probate	shall	

draft	or	aid	in	drafting	any	document	or	paper	which	he	is	by	law	required	to	

pass	 upon.”	 	 The	 Probate	 Code	 authorizes	 the	 probate	 courts	 to	 manage	 the	

affairs	 of	 a	 protected	 person	 and,	 as	 one	 aspect	 of	 that	 authority,	 expressly	

allows	 the	 court	 to	 create	 a	 trust	 of	 property	 of	 the	 person’s	 estate.		

See	18-A	M.R.S.	 §	 5-408(3)	 (2016).	 	 To	 interpret	 section	 309	 as	 Kenneth	

argues	would	effectively	prohibit	a	probate	court	from	exercising	its	statutory	

authority	to	create	trusts	designed	to	safeguard	a	protected	person’s	property.		

To	 the	 extent	 that	 there	 is	 a	 conflict	 between	 the	 statutes,	 because	 section	

5-408(3)	 is	 narrower	 than	 the	 more	 generally	 framed	 provision	 of	 section	

309,	the	former	controls.		See	Butler	v.	Killoran,	1998	ME	147,	¶	11,	714	A.2d	

129	 (“[A]	 statute	 dealing	 with	 a	 subject	 specifically	 prevails	 over	 another	

statute	 dealing	 with	 the	 same	 subject	 generally.”).	 	 Here,	 notwithstanding	

section	 309,	 the	 Probate	 Court	 judge	 drafted	 and	 issued	 the	 successor	 trust	

instrument	pursuant	to	the	express	authority	vested	in	the	probate	courts	by	

the	Legislature,	and	the	order	therefore	is	not	void.		
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B.	      Order	of	Payment	Issued	Against	Attorney	Thiem		

         [¶18]		Asserting	that	she	was	not	given	notice	or	an	opportunity	to	be	

heard,	 Attorney	 Thiem	 argues	 that	 the	 court	 erred	 when	 it	 issued	 the	

following	order:	

     [T]his	[c]ourt	orders	.	.	.	[b]y	Mar.	1,	2016,	recovery	of	legal	fees	
     paid	Ms.	Thiem,	then	doubled	for	each	day	of	delay	until	recovery	
     equals	the	$25,000	loss	of	the	father’s	savings	for	his	disabled	son,	
     plus	court	costs.[7]	
     	
Although	the	order	does	not	explicitly	identify	the	person	who	is	required	to	

make	 the	 payment,	 it	 is	 apparent	 from	 the	 language—and	 from	 the	 court’s	

comments	 in	 the	 order	 criticizing	 Attorney	 Thiem’s	 legal	 work	 in	 the	 case—

that	this	is	an	order	requiring	Attorney	Thiem	to	disgorge	her	legal	fees	and	

potentially	pay	the	additional	amount.8			


   7	 	 The	 court	 relied	 on	 two	 statutes,	 18-A	 M.R.S.	 §§	 5-414	 and	 3-721(a)	 (2016),	 as	 authority	 to	

order	disgorgement	of	attorney	fees	based	on	its	conclusion	that	the	fees	were	excessive.		It	may	be	
that	 neither	 of	 these	 provisions	 applies	 to	 the	 circumstances	 of	 this	 case.	 	 Section	 5-414	 provides	
that	 a	 lawyer	 or	 other	 professional	 who	 is	 appointed	 to	 participate	 in	 a	 protective	 proceeding	 is	
entitled	to	reasonable	compensation	paid	by	the	estate.		Here,	Attorney	Thiem	was	not	appointed	
by	 the	 court	 to	 represent	 the	 conservator.	 	 Section	 3-721(a)	 authorizes	 a	 probate	 court	 to	
determine	the	reasonableness	of	attorney	fees	paid	by	a	decedent’s	estate.		See	Estate	of	Robert	E.	
Sweetland,	 2001	 ME	 21,	 ¶	 9,	 770	A.2d	 1017.	 	 There	 is	 no	 parallel	 statutory	 provision,	 however,	
applicable	to	a	protected	person’s	estate.			

        We	do	not	address	whether	either	of	these	statutes	authorized	the	court	to	take	the	action	
at	 issue	 here	 because	 Attorney	 Thiem	 has	 not	 raised	 such	 a	 challenge	 and	 because	 we	 are	
remanding	the	matter	for	other	reasons.	
    8	 	 It	 is	 less	 clear	 to	 whom	 Attorney	 Thiem	 is	 to	 make	 the	 payment.	 	 The	 order	 states	 that	 the	

$25,000	payment	to	CWC	had	been	made	from	“the	father’s	savings.”		On	the	other	hand,	evidence	
in	the	record—the	amended	third	account	filed	in	December	2014	and	the	visitor’s	report	filed	in	
May	2014—indicates	that	the	payment	came	out	of	Vincent’s	trust	account.		Because	the	transcript	
12	

        [¶19]	 	 “We	 review	 de	 novo	 whether	 an	 individual	 was	 afforded	

procedural	 due	 process.”	 	 In	 re	 Adden	 B.,	 2016	 ME	 113,	 ¶	 7,	 144	 A.3d	 1158.		

“The	 essence	 of	 due	 process	 is	 notice	 and	 an	 opportunity	 to	 be	 heard.”		

Michaud	v.	Mut.	Fire,	Marine	&	Inland	Ins.	Co.,	505	A.2d	786,	789	(Me.	1986);	

see	 Dowling	 v.	 Bangor	 Hous.	 Auth.,	 2006	 ME	 136,	 ¶	 12,	 910	 A.2d	 376;	

Int’l	Union	 v.	 Bagwell,	 512	 U.S.	 821,	 832-33	 (1994).	 	 Where	 procedural	 due	

process	 rights	 are	 at	 issue,	 “the	 deprivation	 by	 state	 action	 of	 a	

constitutionally	 protected	 interest	 in	 ‘life,	 liberty,	 or	 property’	 is	 not	 in	 itself	

unconstitutional;	 what	 is	 unconstitutional	 is	 the	 deprivation	 of	 such	 an	

interest	 without	 due	 process	 of	 law.”	 	 Zinermon	 v.	 Burch,	 494	 U.S.	 113,	 125	

(1990).	 	 This	 means	 that	 the	 state	 “must	 say	 what	 it	 intends	 to	 do	 and	 then	

give	 affected	 persons	 the	 chance	 to	 speak	 out	 against	 it.”	 	 Rivera-Corraliza	 v.	

Puig-Morales,	794	F.3d	208,	223	(1st	Cir.	2015).			

        [¶20]	 	 The	 court’s	 payment	 order	 clearly	 implicates	 Attorney	 Thiem’s	

property	 interests.	 	 See	 Town	 of	 Castle	 Rock	 v.	 Gonzales,	 545	 U.S.	 748,	 766	

(2005)	(noting	that	rights	with	an	“ascertainable	money	value”	fall	within	the	

traditional	concept	of	property	(quotation	marks	omitted)).		Accordingly,	she	



from	the	January	19,	2016,	hearing	date	has	not	been	provided	to	us,	we	cannot	know	whether	the	
court	 was	 presented	 with	 information	 different	 from	 the	 evidence	 presented	 in	 the	 record.	 	 On	
remand,	the	court	will	have	the	opportunity	to	clarify	this	issue.	
                                                                                                             13	

was	 entitled	 to	 process	 consisting	 of	 notice	 and	 an	 opportunity	 to	 be	 heard.		

She	was	provided,	however,	with	neither.	

        [¶21]	 	 According	 to	 the	 record	 on	 appeal,	 once	 the	 court	 granted	

Attorney	 Thiem’s	 motion	 to	 withdraw	 as	 Kenneth’s	 attorney	 in	 late	

March	2015,	the	court	did	not	send	her	notices	of	any	pre-hearing	conferences	

or	of	the	hearing	itself	that	resulted	in	the	payment	order.		In	the	absence	of	

any	 notice	 whatever,	 the	 order	 that	 runs	 against	 Attorney	 Thiem	 personally	

must	be	set	aside.9		Cf.	Linscott	v.	Foy,	1998	ME	206,	¶	22	n.12,	716	A.2d	1017.	

        [¶22]	 	 In	 addition	 to	 ordering	 reimbursement	 of	 attorney	 fees	 actually	

paid	to	Attorney	Thiem,	the	court	ordered	her	to	pay	additional	amounts,	up	

to	a	total	of	$25,000—the	amount	that	the	court	concluded	was	unnecessarily	

paid	to	CWC—if	Attorney	Thiem	did	not	disgorge	the	attorney	fees	themselves	

by	 a	 date	 certain.	 	 As	 deficient	 as	 was	 the	 process	 resulting	 in	 the	 order	

affecting	attorney	fees	themselves,	the	portion	of	the	order	making	Attorney	

Thiem	conditionally	liable	for	amounts	in	excess	of	the	attorney	fees	she	was	

paid	is	even	more	flawed.			



    9	 	 Attorney	 Thiem,	 prior	 to	 her	 withdrawal,	 was	 on	 notice	 of	 the	 court’s	 concerns	 about	 both	

whether	she	had	made	mistakes	in	her	legal	work	as	the	conservator’s	attorney	and	whether	those	
mistakes	 resulted	 in	 an	 unnecessary	 obligation	 for	 Vincent	 to	 pay	 $25,000	 to	 CWC.	 	 Attorney	
Thiem’s	awareness	of	the	court’s	concerns	prior	to	her	withdrawal,	however,	is	not	a	substitute	for	
the	notice	she	was	entitled	to	receive	of	the	actual	adjudication	of	the	reasonableness	of	her	legal	
fees.	
14	

         [¶23]		The	court’s	order	issued	against	Attorney	Thiem	does	not	explain	

the	nature	and	purpose	of	this	conditional	extended	liability.		Consequently,	it	

is	 impossible	 to	 determine	 prospectively	 the	 nature	 of	 the	 process	 that	

Attorney	 Thiem	 will	 be	 due	 should	 the	 court	 seek	 to	 pursue	 imposition	 of	

these	additional	fees.		See	Zinermon,	494	U.S.	at	127	(stating	that	due	process	

is	 “a	 flexible	 concept	 that	 varies	 with	 the	 particular	 situation”);	 Splude	 v.	

Dugan,	2003	ME	88,	¶	6,	828	A.2d	772.			

         [¶24]	 	 For	 example,	 if	 the	 additional	 increasing	 payments	 constitute	 a	

coercive	 sanction	 pursuant	 to	 M.R.	 Civ.	 P.	 66,10	 the	 court	 must	 follow	 the	

process	prescribed	in	that	Rule.		See	Guardianship	of	Isabella	Ard,	2017	ME	12,	

¶¶	 22-24,	 154	 A.3d	 609;	 Cayer	 v.	 Town	 of	 Madawaska,	 2009	 ME	 122,	 ¶	 8,	

984	A.2d	 207	 (explaining	 that	 for	 remedial	 contempt	 sanctions,	 Rule	 66	

“requires	 the	 court	 to	 order	 service	 of	 a	 contempt	 subpoena	 on	 the	 alleged	

contemnor,	 and	 to	 conduct	 a	 hearing	 and	 take	 evidence	 by	 testimony,	

depositions,	or	affidavits”).		Or,	if	the	order	was	an	effort	by	the	court	to	assess	

compensatory	 damages	 to	 benefit	 Vincent’s	 estate	 for	 the	 amount	 the	 court	

felt	 was	 lost	 due	 to	 Attorney	 Thiem’s	 allegedly	 deficient	 representation,	

then—even	 aside	 from	 any	 questions	 concerning	 the	 court’s	 standing	 to	 do	

   10	  	 Maine	 Rule	 of	 Civil	 Procedure	 66	 is	 applicable	 to	 the	 Probate	 Court.	 	 See	 M.R.	
Civ.	P.	66(a)(2)(F).	
                                                                                                 15	

so11—the	 order	 may	 amount	 to	 a	 determination	 of	 legal	 malpractice	 and	

damages,	which	might	entitle	Attorney	Thiem	to	the	process	that	accompanies	

civil	money	damages	claims,	including	the	right	to	trial	by	jury.		Cf.	Garland	v.	

Roy,	2009	ME	86,	976	A.2d	940.			

       [¶25]	 	 Regardless	 of	 the	 nature	 and	 purpose	 of	 this	 additional	 layer	 of	

potential	 personal	 liability,	 Attorney	 Thiem	 received	 no	 process,	 and	 we	

vacate	the	order.		See	Soley	v.	Karll,	2004	ME	89,	¶	15,	853	A.2d	755	(vacating	

a	court’s	award	of	attorney	fees	as	damages,	and	remanding	for	clarification,	

where	the	award	was	not	authorized	by	any	contract	or	statute	and	the	court	

failed	 to	 explain	 the	 basis	 for	 its	 authority).	 	 Because	 we	 cannot	 glean	 the	

character	 of	 this	 portion	 of	 the	 order,	 we	 do	 not	 reach	 the	 question	 of	 the	

nature	of	the	process	that	the	court	must	provide	on	remand.	

                                       III.		CONCLUSION	

       [¶26]		We	affirm	the	order	creating	a	replacement	supplemental	needs	

trust	 for	 Vincent’s	 estate.	 	 The	 order	 requiring	 Attorney	 Thiem	 to	 disgorge	

attorney	fees	and	exposing	her	to	liability	for	even	greater	amounts,	however,	

was	 not	 predicated	 on	 minimum	 process	 requirements	 to	 which	 Attorney	


   11		The	record	before	us	contains	no	indication	that	Vincent,	through	his	court-appointed	counsel	

or	otherwise,	took	steps	to	pursue	a	claim	against	Attorney	Thiem	or	to	otherwise	recover	any	sum	
of	money	from	her.		
16	

Thiem	 was	 entitled.	 	 Accordingly,	 we	 vacate	 the	 payment	 order	 and	 remand	

for	further	proceedings.		

         The	entry	is:	

                            Judgment	entered	February	25,	2016,	affirmed.		
                            Judgment	 entered	 February	 23,	 2016,	 vacated.		
                            Remanded	 for	 further	 proceedings	 consistent	
                            with	this	opinion.		
	
	     	     	    	      	     	
	
Susan	C.	Thiem,	Esq.,	Law	Office	of	Susan	C.	Thiem,	Lincolnville,	pro	se	and	for	
appellant	Kenneth	Jones	
	
	
Waldo	County	Probate	Court	docket	number	2008-148-6	
FOR	CLERK	REFERENCE	ONLY	
