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Abstract

A judge may appoint a guardian for an adult who does not have the capacity to make decisions affecting their own health or welfare. However, the power of the guardian—while intended to serve a protective function—potentially invites financial, physical, and emotional abuse of the most vulnerable members of society. To help a probate judge understand the circumstances of a guardianship and the need for protection, probate courts in Maine appoint a “visitor” to interview both the person allegedly in need of a guardianship and the proposed guardian. The visitor submits a report to the court which contains the visitor’s observations, assessments of cognitive and physical capacity, and recommendations about the appropriateness of guardianship or of less restrictive alternatives. The visitor’s critical role in a guardianship proceeding may be pivotal. This Comment begins by tracing the history and purpose of guardianships and the problems that may surface when guardianships are granted too readily and monitored inadequately. It then uses Maine as a case study in guardianship reform by examining the ways probate courts have implemented the Maine Uniform Probate Code. Finally, it explores the legal issues involved in evaluating an individual for capacity, the civil rights implicated when a person is appointed a full guardian, and the benefits of alternatives to guardianship. It concludes by suggesting a path forward for Maine to strengthen its protections for individuals subject to a guardianship petition, including developing a comprehensive visitor training program and expanding the statutory requirements for the visitor. Elevating the importance and gravity of the role of the court-appointed visitor will further implement the policy aims of the Maine Uniform Probate Code to protect and preserve, as much as possible, the civil rights, liberty, and autonomy of vulnerable adults.

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