MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2019	ME	23	
Docket:	   Lin-18-38	
Argued:	   October	11,	2018	
Decided:	  February	12,	2019	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                GUARDIANSHIP	OF	PATRICIA	S.	
	
	
HJELM,	J.	

        [¶1]		Michael	Zani	and	Peter	Zani	appeal	from	a	judgment	issued	by	the	

Lincoln	 County	 Probate	 Court	 (Avantaggio,	 J.)	 denying	 their	 petition	 to	 be	

appointed	 co-guardians	 of	 their	 mother,	 Patricia	 S.,	 who	 is	 an	 incapacitated	

adult,	and	instead	appointing	Karin	Beaster	and	Nancy	Carter	as	co-guardians	

even	though	 Beaster	and	Carter	had	not	filed	petitions	to	be	appointed.		 The	

Zanis	contend	that	the	court	erred	by	(1)	appointing	Beaster	and	Carter	when	

they	 had	 not	 complied	 with	 the	 statutory	 requirements	 applicable	 to	 a	

guardianship	 petition,	 see	 18-A	M.R.S.	 §	 5-303(a)	 (2017);1	 (2)	 not	 giving	 the	

Zanis	priority	for	appointment	as	guardians	pursuant	to	18-A	M.R.S.	§	5-311(b)	

(2017);	 and	 (3)	 determining	 that	 appointment	 of	 Beaster	 and	 Carter	 as	

co-guardians	 is	 in	 the	 mother’s	 best	 interest.	 	 We	 vacate	 the	 judgment	 and	


    1		Effective	July	1,	2019,	the	current	Probate	Code	found	in	Title	18-A	will	be	repealed	in	its	entirety	

and	replaced	with	a	new	Probate	Code	to	be	codified	in	Title	18-C.		See	P.L.	2017,	ch.	402.		All	citations	
in	this	opinion	are	to	the	Code	currently	in	effect.	
2	

remand	for	further	proceedings	because	Beaster	and	Carter	had	not	fulfilled	the	

pretrial	 filing	 requirements	 of	 section	 5-303.	 	 In	 the	 interest	 of	 judicial	

economy,	we	also	address	the	Zanis’	claim	of	statutory	priority.	

                                  I.		BACKGROUND	

      [¶2]		The	following	facts	are	set	out	in	the	procedural	record	and	in	the	

court’s	 findings,	 which	 were	 issued	 after	 a	 testimonial	 hearing	 and	 are	

supported	 by	 competent	 record	 evidence.	 	 See	 Oliver	 v.	 E.	 Me.	 Med.	 Ctr.,	

2018	ME	123,	¶	2,	193	A.3d	157.	

      [¶3]		As	all	parties	agree,	the	Zanis’	mother—in	significant	part	because	

of	the	complexity	of	care	she	needs—is	incapacitated	to	a	degree	that	supports	

the	appointment	of	a	guardian.		18-A	M.R.S.	§	5-101(1),	(2)	(2017).		The	Zanis	

both	 reside	 in	 California.	 	 Although	 they	 are	 “accomplished	 and	 competent	

professionals	who	are	concerned	for	their	mother’s	best	interests,”	they	have	

been	largely	estranged	from	their	mother	for	a	significant	period.		Since	1979,	

Michael	 has	 only	 had	 infrequent	 contact	 with	 his	 mother,	 and	 there	 was	 a	

twelve-year	period	when	they	had	no	contact	at	all.		Michael	has	organized	and	

overseen	the	care	provided	to	his	mother,	but	his	phone	conversations	with	his	

mother	 are	 difficult	 and	 often	 end	 with	 the	 mother	 becoming	 upset	 and	

stressed	 to	 the	 point	 that	 she	 requires	 medication.	 	 Peter’s	 contact	 with	 his	
                                                                                 3	

mother	has	been	very	limited—he	last	saw	his	mother	in	2010,	and	before	that,	

in	1991—and	she	has	told	him	“not	to	come”	to	see	her.		Peter’s	involvement	in	

his	mother’s	care	has	been	limited	to	talking	with	Michael	about	it.			

       [¶4]		The	Zanis	vetted	and	hired	Beaster	and	Carter	to	assist	the	mother.		

Beaster	has	a	degree	in	geriatric	social	work,	is	a	crisis	responder,	and	has	been	

involved	in	hospice	care	and	private	duty	care	for	approximately	fifteen	years.		

She	has	been	“an	integral	part”	of	the	team	caring	for	the	mother	since	March	

of	 2017,	 and,	 among	 other	 things,	 oversees	 the	 administration	 of	 all	

medications	prescribed	to	the	mother.		Carter	has	worked	for	the	mother	for	

more	 than	 five	 years	 and	 provides	 hands-on,	 in-home	 care.	 	 Carter	 is	

responsible	 for	 scheduling	 the	 staff	 that	 provides	 the	 mother	 with	

around-the-clock	care.		Beaster	and	Carter	have	nearly	daily	contact	with	the	

mother,	and	each	has	spent	more	time	with	her	in	recent	months	than	both	of	

the	Zanis	have	in	years.		The	mother	considers	both	Beaster	and	Carter	to	be	

her	friends—they	know	her	well,	and	she	trusts	them.		The	mother	has	been	

consistently	and	increasingly	opposed	to	the	appointment	of	her	sons	to	be	her	

guardians	since	October	of	2017,	which	was	two	months	before	the	hearing	was	

held.			
4	

          [¶5]		In	August	of	2017,	the	Department	of	Health	and	Human	Services	

filed	a	petition	seeking	the	appointment	of	the	mother’s	adult	stepson	as	her	

guardian	 and	 conservator.	 	 See	 18-A	 M.R.S.	 §	 5-303(a).	 	 In	 support	 of	 the	

petition,	 the	 Department	 submitted	 reports	 prepared	 by	 a	 primary	 care	

provider	and	a	psychiatrist,	who	had	each	examined	the	mother	and	concluded	

that	 she	 was	 incapacitated.	 	 On	 the	 Department’s	 request	 for	 the	 court	 to	

appoint	 a	 temporary	 guardian,	 the	 court	 held	 an	 expedited	 hearing	 and	

appointed	 the	 stepson	 as	 temporary	 guardian.	 	 See	 18-A	M.R.S.	 §	5-310-A(a)	

(2017).	 	 The	 court	 also	 appointed	 a	 guardian	 ad	 litem	 for	 the	 mother.	 	 See	

18-A	M.R.S.	§	5-303(b)	(2017).	

          [¶6]	 	 The	 Zanis	 opposed	 the	 Department’s	 petition	 and	 filed	 a	

cross-petition	to	be	appointed	permanent	co-guardians.		Prior	to	the	hearing	

on	 the	 guardianship	 petitions	 filed	 by	 the	 Department	 and	 by	 the	 Zanis,	 the	

Department’s	nomination	of	the	mother’s	stepson	as	guardian	was	withdrawn,	

leaving	only	the	Zanis’	petition	to	be	adjudicated.2		Although	the	Department	

subsequently	 took	 the	 position	 that	 Beaster	 and	 Carter	 should	 be	 appointed	




     2	 	 Also	 prior	 to	 the	 hearing,	 the	 parties	 stipulated	 to	 the	 appointment	 of	 a	third	person	 as	 the	

mother’s	 conservator.	 	 18-A	M.R.S.	 §	5-410(a)	(2017).	 	 The	 conservatorship	 is	 not	 at	 issue	 in	this	
appeal.	
                                                                                        5	

co-guardians,	 the	 Department	 did	 not	 file	 a	 new	 or	 amended	 petition	

nominating	them,	and	Beaster	and	Carter	did	not	file	petitions	on	their	own.			

      [¶7]		In	December	of	2017,	the	court	held	a	contested	full-day	hearing,	

where	the	mother,	the	Zanis,	and	the	Department	were	represented	by	counsel.		

The	court	heard	testimony	from	Michael	Zani,	Peter	Zani,	the	mother,	Beaster,	

Carter,	 and	 the	 GAL.	 	 During	 her	 testimony,	 the	 mother	 confirmed	 that	 she	

wanted	Beaster	and	Carter	to	be	appointed	her	co-guardians,	and	Beaster	and	

Carter	both	testified	that	they	were	willing	to	be	appointed	to	that	position.			

      [¶8]	 	 At	 the	 conclusion	 of	 the	 hearing,	 the	 court	 directed	 the	 mother’s	

attorney	to	file	acceptances	of	appointment	and	a	guardianship	plan	on	behalf	

of	Beaster	and	Carter,	see	18-A	M.R.S.	§§	5-303(a),	5-305	(2017),	and	they	did	

so	 two	 weeks	 later.	 	 The	 Zanis	 objected	 and	 moved	 to	 strike	 the	 filings—a	

motion	the	court	later	denied—and	in	their	written	summation	they	objected	

to	the	appointment	of	Beaster	and	Carter	on	the	merits.	

      [¶9]		In	early	January	of	2018,	the	court	entered	a	judgment	appointing	

Beaster	 and	Carter	 as	the	mother’s	co-guardians	after	 determining	that	their	

appointment	was	in	the	mother’s	best	interest	because	they	are	“trusted	and	

qualified”	and	had	been	chosen	by	the	Zanis	themselves	to	serve	as	the	mother’s	

caregivers.		The	court	also	concluded,	for	several	reasons	it	articulated	in	both	
6	

its	 judgment	 and	 an	 order	 on	 the	 Zanis’	 motion	 for	 further	 findings,	 see	

18-A	M.R.S.	§	5-304(c)	(2017),	that	it	was	not	in	the	mother’s	best	interest	to	

have	 Michael	 Zani	 or	 Peter	 Zani,	 either	 individually	 or	 jointly,	 appointed	 her	

guardian	or	co-guardians.		The	Zanis	filed	a	timely	appeal	to	us.		See	18-A	M.R.S.	

§	1-308	(2017);	M.R.	App.	P.	2B(c)(2)(B).			

                                         II.		DISCUSSION	

         [¶10]		The	Zanis	argue	on	appeal	that	the	court	erred	by	(1)	appointing	

Beaster	 and	 Carter	 as	 co-guardians	 because	 they	 had	 not	 filed	 nominating	

petitions,	guardianship	plans,	or	acceptances	prior	to	the	hearing;	(2)	not	giving	

the	 Zanis,	 as	 the	 mother’s	 adult	 children,	 priority	 for	 appointment;	 and	

(3)	determining	that	the	appointment	of	Beaster	and	Carter	is	in	the	mother’s	

best	interest.		For	the	reasons	discussed	below,	we	vacate	the	judgment	based	

on	 the	 first	 of	 these	 challenges—the	 procedural	 deficiencies	 affecting	 the	

court’s	consideration	of	Beaster	and	Carter	as	possible	guardians.		In	order	to	

promote	 judicial	 economy	 and	 efficiency	 in	 the	 ultimate	 resolution	 of	 this	

matter,	we	also	address	the	Zanis’	assertion	that	they	are	entitled	to	statutory	

priority	over	Beaster	and	Carter.3	



     3		Because	additional	evidence	may	be	presented	to	the	court	on	remand,	we	do	not	address	the	

sufficiency	of	the	present	record	to	support	the	court’s	best-interest	determination.	
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A.    Guardianship	Petition	Procedure	

      [¶11]		The	central	question	presented	on	this	appeal	is	whether,	during	

the	course	of	a	proceeding	on	a	petition	for	appointment,	the	court	is	statutorily	

authorized	 to	 appoint	 as	 guardian	 a	 third	 party	 who	 has	 not	 satisfied	 the	

requirements	that	the	petitioning	party	him	or	herself	must	satisfy.		This	calls	

for	us	to	construe	18-A	M.R.S.	§	5-311(a)	(2017),	which	states	in	pertinent	part	

that	 “[a]ny	 competent	 person	 or	 a	 suitable	 institution	 may	 be	 appointed	

guardian	of	an	incapacitated	person.”		The	court	concluded	that	the	breadth	of	

the	phrase	“[a]ny	competent	person”	means	that	the	person	who	is	ultimately	

appointed	 to	 be	 guardian	 need	 not	 have	 filed	 the	 material	 required	 of	 the	

original	petitioner.		We	disagree.	

      [¶12]	 	 “Statutory	 construction	 is	 a	 question	 of	 law	 that	 we	 consider	

de	novo.”		Guardianship	of	Thayer,	2016	ME	52,	¶	13,	136	A.3d	349.		Our	“single	

goal”	in	interpreting	a	statute	is	to	give	effect	to	legislative	intent.		Dickau	v.	Vt.	

Mut.	Ins.	Co.,	2014	ME	158,	¶	19,	107	A.3d	621.		To	determine	legislative	intent,	

we	first	determine	if	the	statute’s	language	is	“plain	and	unambiguous.”		Id.		If	

so,	we	construe	it	according	to	that	plain	and	unambiguous	meaning.		State	v.	

Mourino,	2014	ME	131,	¶	8,	104	A.3d	893.		If,	however,	“the	statutory	language	

is	 ambiguous,	 meaning	 that	 it	 is	 reasonably	 susceptible	 to	 multiple	
8	

interpretations,	or	is	silent	on	a	particular	point,	we	will	then	consider	other	

indicia	 of	 legislative	 intent	 including	 the	 purpose	 of	 the	 statute.”	 	 Davis	 v.	

McGuire,	2018	ME	72,	¶	17,	186	A.3d	837	(quotation	marks	omitted);	see	also	

Thayer,	2016	ME	 52,	¶	13,	136	 A.3d	 349	(stating	that	we	must	“consider	the	

provision	at	issue	in	light	of	the	entire	relevant	statutory	scheme	 in	order	to	

arrive	 at	 a	 harmonious	 result”	 (quotation	 marks	 omitted));	 Adoption	 of	

Tobias	D.,	 2012	 ME	 45,	 ¶	 15,	 40	 A.3d	 990.	 	 We	 construe	 the	 Probate	 Code	

liberally	so	as	to	promote	its	underlying	purposes	and	policies,	which	include,	

among	 others,	 simplifying	 and	 clarifying	 the	 law	 that	 affects	 the	 affairs	 of	

incapacitated	persons.		See	18-A	M.R.S.	§	1-102(a),	(b)(1)	(2017).	

      [¶13]		The	reference	in	section	5-311(a)	to	“[a]ny	competent	person”	is	

ambiguous.	 	 Taken	 in	 isolation,	 that	 phrase	 could	 be	 read—as	 the	 court	 did	

here—to	 include	 even	 a	 person	 who	 has	 not	 filed	 a	 petition	 and	 the	

accompanying	 material	 otherwise	 required	 to	 be	 appointed	 guardian.	 	 When	

viewed	in	the	context	of	the	full	statutory	framework	governing	the	process	by	

which	 guardians	 are	 appointed,	 however,	 the	 statute	 may	 also	 be	 construed	

more	 restrictively	 so	 as	 to	 limit	 those	 persons	 or	 institutions	 the	 court	 can	

appoint	 to	 those	 who	 have	 complied	 with	 the	 statutory	 pre-adjudicatory	

process	 imposed	 on	 formal	 guardian	 applicants.	 	 Based	 on	 the	 procedural	
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predicates	to	the	appointment	of	a	guardian,	we	conclude	that	the	Probate	Code	

authorizes	the	court	to	 appoint	as	guardian	only	a	 person	who	has	complied	

with	 the	 statutory	 filing	 requirements	 in	 a	 way	 that	 allows	 other	 interested	

persons	 a	 meaningful	 opportunity	 to	 be	 heard	 at	 trial	 and	 that	 provides	 the	

court	 with	 important	 pretrial	 information	 about	 the	 prospective	 guardian’s	

comprehensive	plan	for	the	incapacitated	person.	

       [¶14]		We	begin	with	the	fundamental	notion	that	the	appointment	of	a	

guardian	 affects	 the	 incapacitated	 person’s	 fundamental	 liberties.	 	 Oliver,	

2018	ME	123,	¶	28,	193	A.3d	157;	see	also	Guardianship	of	Helen	F.,	2013	ME	18,	

¶	4,	60	A.3d	786.		In	recognition	of	that,	the	Probate	Code	prescribes	a	series	of	

procedural	steps	that	operate	to	safeguard	those	fundamental	liberty	interests.		

See	18-A	M.R.S.	§	5-303;	Guardianship	of	Hughes,	1998	ME	186,	¶¶	9,	13-14,	715	

A.2d	919.	

       [¶15]		For	a	guardianship	to	be	established,	“[t]he	incapacitated	person	

or	any	person	interested	in	his	welfare	may	petition	for	a	finding	of	incapacity	

and	appointment	of	a	guardian.”4		18-A	M.R.S.	§	5-303(a).		Unless	the	allegedly	

incapacitated	person	is	already	represented	by	counsel,	the	court	is	required	to	

appoint	“one	or	more	of”	a	visitor,	a	GAL,	or	an	attorney	to	represent	her	in	the	


  4		“Petition”	is	defined	as	“a	written	request	to	the	court	for	an	order	after	notice.”		18-A	M.R.S.	

§	1-201(31)	(2017).	
10	

proceeding.		18-A	M.R.S.	§	5-303(b).		Upon	the	filing	of	a	petition,	the	Probate	

Court	 must	 schedule	 a	 hearing	 on	 the	 issue	 of	 incapacity,	 id.,	 and	 at	 least	

fourteen	 days’	 notice	 of	 the	 hearing	 is	 to	 be	 provided	 to	 the	 reportedly	

incapacitated	person	and	that	person’s	adult	children,	18-A	M.R.S.	§	5-309(a),	

(c)	(2017).5	

       [¶16]	 	 The	 Probate	 Code	 also	 requires	 a	 prospective	 guardian	 to	 file	 a	

guardianship	 plan	 and	 a	 series	 of	 reports	 relating	 to	 the	 condition	 of	 the	

allegedly	incapacitated	person.		As	to	the	former,	the	statute	provides:	

      The	person	nominated	to	serve	as	guardian	shall	file	a	plan	which,	
      where	 relevant,	 shall	 include,	 but	 not	 be	 limited	 to,	 the	 type	 of	
      proposed	 living	 arrangement	 for	 the	 ward,	 how	 the	 ward’s	
      financial	 needs	 will	 be	 met,	 how	 the	 ward’s	 medical	 and	 other	
      remedial	needs	will	be	met,	how	the	ward’s	social	needs	will	be	met	
      and	 a	 plan	 for	 the	 ward’s	 continuing	 contact	 with	 relatives	 and	
      friends.		
             	
18-A	 M.R.S.	 §	 5-303(a).	 	 Regarding	 the	 reports,	 the	 allegedly	 incapacitated	

person	must	be	 examined	by	 a	 physician	or	licensed	 psychologist,	who	 must	

then	submit	a	written	report	to	the	court.		18-A	M.R.S.	§	5-303(b).		Additionally,	

an	 appointed	 visitor	 or	 GAL	 is	 required	 to	 interview	 both	 the	 allegedly	




   5		As	a	condition	to	the	appointment,	the	nominated	guardian	is	required	to	execute	an	acceptance,	

by	which	the	guardian	submits	to	the	court’s	jurisdiction	in	any	matter	related	to	the	guardianship.		
18-A	M.R.S.	§	5-305	(2017).		As	we	note	above,	see	supra	¶	8,	this	was	one	of	the	instruments	that,	
after	the	hearing	was	completed,	the	court	directed	Beaster	and	Carter	to	file.	
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incapacitated	 person	 and	 the	 petitioner,	 and	 submit	 a	 written	 report	 to	 the	

court.		18-A	M.R.S.	§	5-303(c)	(2017).		“Except	as	otherwise	provided	by	law,	all	

reports	and	plans	required	by	this	section	shall	be	submitted	to	the	court,	and	

all	 parties	 of	 record,	 at	 least	 10	 days	 before	 any	 hearing	 on	 the	 petition.”		

18-A	M.R.S.	§	5-303(d)	(2017).	

      [¶17]	 	 These	 procedural	 requirements	 have	 two	 primary	 effects	 in	

anticipation	 of	 the	 guardianship	 hearing	 conducted	 by	 the	 court.	 	 First,	 the	

reports	of	the	evaluations	required	by	section	5-303	provide	the	participants	

and	 the	 court	 with	 information	 about	 the	 circumstances	 and	 needs	 of	 the	

allegedly	 incapacitated	 person.	 	 Second—and	 importantly	 here—the	

comprehensive	guardianship	plan	allows	the	participants	and,	ultimately,	the	

court	to	assess	the	adequacy	of	the	prospective	guardian’s	proposals	to	meet	

those	reported	needs.		The	overall	effect	of	the	pretrial	guardianship	process	

therefore	 is	 to	 provide	 important	 information	 to	 the	 participants—including	

the	allegedly	incapacitated	person—and	to	the	court,	to	allow	an	appropriate	

and	 thorough	 consideration	 and	 adjudication	 of	 the	 substantial	 interests	 at	

stake	in	a	guardianship	proceeding.	

      [¶18]	 	 Here,	 prior	 to	 the	 guardianship	 hearing,	 reports	 were	 filed	 by	 a	

physician,	 a	 psychologist,	 and	 the	 GAL,	 thereby	 meeting	 those	 aspects	 of	 the	
12	

statutory	process.		The	requirement	of	a	guardianship	plan	was	not	satisfied,	

however,	 because	 even	 though	 the	 court	 ultimately	 appointed	 Beaster	 and	

Carter	to	serve	as	co-guardians,	they	had	not	submitted	such	a	plan,	much	less	

even	 a	 petition	 for	 the	 court	 to	 appoint	 them	 as	 guardians.	 	 See	 18-A	 M.R.S.	

§	5-303(a).		It	appears	that	by	the	time	the	hearing	was	held,	the	Zanis	were	

aware	 that	 their	 mother	 opposed	 their	 petition	 to	 be	 appointed	 her	

co-guardians.6		Further,	the	GAL	did	speak	with	Beaster	and	Carter	in	preparing	

his	report,	and	Beaster	and	Carter	both	testified	at	the	hearing.		Nonetheless,	

Beaster	and	Carter	had	not	filed	a	plan	describing	how	they	proposed	to	care	

for	the	mother,	meet	the	 mother’s	social	needs,	and	address	the	other	issues	

that	the	Legislature	requires	a	prospective	guardian	to	articulate.		Rather,	the	

statutorily	 mandated	 plan	 was	 not	 filed	 until	 the	 court	 directed	 Beaster	 and	

Carter	to	do	so	after	the	hearing—too	late	for	the	Zanis	to	develop	evidence	or	

otherwise	respond	to	it	in	an	evidentiary	setting.		18-A	M.R.S.	§	5-309(a),	(c).	

        [¶19]	 	 Each	 of	 the	 procedural	 requirements	 that	 may	 lead	 to	 the	

appointment	 of	 a	 guardian	 promotes	 the	 overall	 purpose	 of	 guardianship	



   6		Beaster	testified	that	in	October—two	months	before	the	hearing—the	mother	had	told	her	that	

she	did	not	want	Michael	Zani	to	be	appointed	as	her	guardian	and	instead	wanted	Beaster	and	Carter	
to	serve	as	guardians.		She	also	testified	that	as	late	as	several	days	before	the	hearing,	the	difficult	
relationship	between	Michael	Zani	and	the	mother	created	such	significant	problems	in	her	ability	to	
care	for	the	mother	that	she	had	reservations	about	her	willingness	to	be	appointed.			
                                                                                            13	

proceedings—providing	 “for	 the	 care	 of	 persons	 who	 are	 unable	 to	 care	 for	

themselves,”	Hunt,	Maine	Probate	Law	Part	3	at	252	(1999),	and	accounting	for	

the	 person’s	 best	 interest,	 18-A	 M.R.S.	 §	 5-311(b),	 while	 also	 maintaining	

sensitivity	 to	 the	 person’s	 autonomy	 to	 the	 extent	 allowed	 by	 the	 person’s	

circumstances,	 see	 Oliver,	 2018	 ME	 123,	 ¶	 32,	 193	 A.3d	 157	 (noting	 that	 the	

limiting	language	of	5-304(a)	is	directed	to	the	court’s	exercise	of	authority	in	

setting	 the	 terms	 of	 a	 guardianship	 in	 a	 way	 that	 does	 not	 interfere	 with	 an	

individual’s	 autonomy);	 see	 also	 Guardianship	 of	 Collier,	 653	 A.2d	 898,	 902	

(Me.	1995)	(stating	that	the	appointment	of	a	full	guardian	“should	not	be	done	

without	careful	consideration	of	the	prospective	ward’s	specific	needs”).		As	a	

central	 element	 of	 the	 legislatively	 prescribed	 process	 that	 can	 result	 in	 the	

imposition	of	a	guardianship,	the	prospective	guardian	must	submit	a	plan	of	

care	 for	 the	 allegedly	 incapacitated	 person.	 	 See	 18-A	 M.R.S.	 §	5-303(a).	 	 The	

persons	 whom	 the	 court	 ultimately	 appointed	 co-guardians	 did	 not	 do	 that	

here.	 	 As	 a	 result,	 the	 post	 hoc	 process	 used	 instead	 by	 the	 court	 to	 fill	 this	

procedural	void	deprived	the	Zanis	of	a	meaningful	opportunity	to	be	heard	on	

the	merits	of	Beaster	and	Carter’s	undocumented	interest	and	willingness	to	be	

appointed	co-guardians	and	the	nature	of	their	plan	of	care	for	the	mother.	
14	

         [¶20]		We	therefore	vacate	the	judgment	and	remand	this	action	for	the	

court	to	hold	a	hearing	that	will	allow	the	parties	to	augment	the	record	on	the	

matters	generated	by	the	plan	submitted	post-trial	by	Beaster	and	Carter.	

B.       Statutory	Priority	of	Guardians	

         [¶21]		Although	we	vacate	the	judgment	for	the	reason	discussed	above,	

in	the	interest	of	judicial	economy	we	proceed	to	address	the	Zanis’	contention	

that	 the	 court	 also	 erred	 by	 failing	 to	 give	 them,	 as	 the	 adult	 children	 of	 the	

incapacitated	person,	priority	for	appointment	pursuant	to	section	5-311—an	

issue	 that	 the	 parties	 have	 fully	 briefed	 and	 argued.	 	 Clark	 v.	 Int’l	 Paper	 Co.,	

638	A.2d	65,	66	(Me.	1994).		This	calls	for	us	to	interpret	section	5-311,	which	

we	do	de	novo.		See	Thayer,	2016	ME	52,	¶	13,	136	A.3d	349.	

         [¶22]	 	 As	 discussed,	 see	 supra	 ¶	 11,	 absent	 some	 exceptions,	 “[a]ny	

competent	person	.	.	.	may	be	appointed	guardian	of	an	incapacitated	person.”		

18-A	M.R.S.	§	5-311(a).		Section	5-311	goes	on	to	list	a	number	of	groups	that	

are	to	be	given	priority	when	the	court	appoints	a	guardian.		See	18-A	M.R.S.	

§	5-311(b).	 	 One	 of	 those	 categories	 of	 persons	 is	 “[a]n	 adult	 child	 of	 the	

incapacitated	person,”	which	here	would	include	either	or	both	of	the	Zanis.7		


     7		The	three	categories	of	people	who	are	statutorily	entitled	to	higher	priority	than	an	adult	child	

comprise	a	person	or	institution	nominated	in	writing	by	the	incapacitated	person,	the	spouse	of	the	
incapacitated	 person,	 and	 the	 domestic	 partner	 of	 the	 incapacitated	 person.	 	 18-A	 M.R.S.	
§	5-311(b)(1)-(2-A)	(2017).		None	of	these	categories	is	pertinent	here.	
                                                                                    15	

See	18-A	M.R.S.	§	5-311(b)(3).		The	plain	language	of	that	statute,	however,	also	

explicitly	provides	that	the	court’s	application	of	any	of	these	priorities	remains	

“[s]ubject	 to	 a	 determination	 by	 the	 court	 of	 the	 best	 interests	 of	 the	

incapacitated	 person.”	 	 18-A	 M.R.S.	 §	5-311(b);	 see	 also	 Hunt,	 Maine	 Probate	

Law	§	5.311	at	263	(1999)	(“The	Maine	Legislature,	deviating	slightly	from	the	

Uniform	 Probate	 Code	 version	 of	 this	 section,	 specifically	 provided	 an	

overriding	priority	that	the	appointment	made	must	be	in	the	best	interest	of	

the	 incapacitated	 person	.	.	.	.”).	 	 The	 unambiguous	 terms	 of	 section	 5-311(b)	

undermine	the	Zanis’	assertion	to	the	contrary	and	make	clear	that	the	court	

does	not	err	as	a	matter	of	law	if	it	appoints	as	guardian	someone	who	does	not	

have	statutory	priority	but	whose	appointment	will	be	in	the	best	interest	of	

the	incapacitated	person.	

                                 III.		CONCLUSION	

      [¶23]	 	 In	 this	 action,	 the	 court	 acted	 with	 compassion	 and	 sensitivity	

toward	the	mother,	consistent	with	the	goals	of	the	Probate	Code.		The	court	

erred,	however,	by	not	allowing	additional	process	generated	by	Beaster	and	

Carter’s	 post-trial	 submission	 of	 a	 guardianship	 plan—a	 document	 that,	

pursuant	 to	 statute,	 should	 have	 been	 filed	 before	 the	 hearing,	 given	 that	

Beaster	 and	Carter	presented	themselves	as	candidates	for	appointment	 and	
16	

that	the	court	ultimately	appointed	them	as	co-guardians.		We	therefore	vacate	

the	judgment	and	remand	for	further	proceedings	consistent	with	this	opinion,	

see	supra	¶	20.	

         The	entry	is:	

                            Judgment	 vacated.	 	 Remanded	 for	 further	
                            proceedings	consistent	with	this	opinion.	
	
	     	       	      	       	      	
	
Sarah	 I.	 Gilbert,	 Esq.	 (orally),	 and	 Laura	 P.	 Shaw,	 Esq.,	 Camden	 Law	 LLP,	
Camden,	for	appellants	Michael	Zani	and	Peter	Zani	
	
Stephen	W.	Hanscom,	Esq.	(orally),	Hanscom,	Collins	&	Hall,	P.A.,	Rockland,	for	
appellee	Department	of	Health	and	Human	Services	
	
Philip	 S.	 Cohen,	 Esq.	 (orally),	 Cohen,	 Cohen	 &	 Hallowell,	 P.C.,	 Waldoboro,	 for	
appellee	Patricia	S.	
	
	
Lincoln	County	Probate	Court	docket	number	2017-223	
FOR	CLERK	REFERENCE	ONLY	
