Guardianship of Collier, 7124

• Decision Date: 01 February 1995
• Docket Number: No. 7124,Docket No. YOR-93-779,7124
• Citation: 653 A.2d 898
• Parties: GUARDIANSHIP OF Samuel S. COLLIER. DecisionLaw
• Court: Maine Supreme Court

Page 898

653 A.2d 898

GUARDIANSHIP OF Samuel S. COLLIER.

Decision No. 7124.

Law Docket No. YOR-93-779.

Supreme Judicial Court of Maine.

Submitted on Briefs Sept. 6, 1994.

Decided Feb. 1, 1995.

Samuel S. Collier, pro se.

Gene R. Libby, Verrill & Dana, Kennebunk, for appellee.

Before WATHEN, C.J., and ROBERTS, GLASSMAN and CLIFFORD, JJ.

GLASSMAN, Justice.

Samuel S. Collier appeals from the judgment of the York County Probate Court (Brooks, J.) adjudicating Collier an incapacitated person and appointing Theresa Skaling Ketchum to be his full guardian. 18-A M.R.S.A. §§ 5-101 to 5-313 (1981 & Supp.1994). We affirm the adjudication of incapacity but vacate the appointment of a full guardian.

The record reveals the following: Based on the complaint of a neighbor, on April 18, 1993, Collier was issued a summons for criminal threatening and was charged with criminal threatening with a dangerous weapon on April 27, 1993. On May 3, 1993, he was involuntarily committed to Jackson Brook Institute. On May 7, 1993, Collier's father signed a petition, pursuant to section 5-303, seeking the appointment of Theresa Skaling Ketchum as Collier's guardian. Pursuant to section 5-310, Ketchum was appointed Collier's temporary guardian on that date.

Thomas E. Geyer, Esq., who had represented Collier on previous occasions, was contacted by him and undertook his representation in the pending criminal charges, as well as in the present proceedings. On June 7, 1993, on behalf of Collier, Geyer filed an objection to the appointment of a full guardian for Collier and on August 13, 1993, filed a petition for the removal of the temporary guardian.

After extensions of his involuntary commitment, ¹ Collier was discharged from Jackson Brook Institute to a halfway house in South Portland on August 31, 1993, where he was residing on November 9, 1993, the date of the hearing on the two petitions before the Probate Court. From the judgment of the Probate Court adjudicating Collier as an incapacitated person and appointing Ketchum as his full guardian, Collier appeals. ²

The appointment of a guardian requires in the first instance that the Probate Court make factual findings that the person for whom the guardianship is sought is incapacitated and "that the appointment is necessary or desirable as a means of providing continuing care and supervision of the person." Section 5-304(b). Section 5-101 defines an incapacitated person as

any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause except minority to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.

18-A M.R.S.A. § 5-101(a) (1981).

We review those factual findings of the Probate Court for clear error, and they will not be set aside unless there is no competent evidence in the record to support the findings. Here, the court had before it evidence that prior to his involuntary commitment to Jackson Brook Institute, Collier had a history of several hospitalizations of varying periods of time since December 1985. In each instance the hospitalizations had been the culmination of conduct by Collier manifesting delusional mistrust and fear of others with a potential of harm to himself or to others. During each hospitalization the primary treatment had been a course of medication. A diagnosis of paranoid schizophrenia was made at the time of his hospitalization at Jackson Brook Institute and was affirmed by the testimony of Dr. Carlyle B. Voss, a psychiatrist retained by Ketchum to do an independent evaluation of Collier. The necessity of continuing a strict regimen of such medication to prevent a recurrence of conduct leading to his hospitalizations was emphasized. The court also heard evidence of Collier's inability to acknowledge the need for such a regimen. On this record we cannot say there was clear error in the Probate Court's findings that Collier suffers a present incapacity from mental illness that impairs his capacity to reliably make responsible decisions concerning his medical needs and that the appointment of a guardian is desirable to provide supervision of Collier in that regard.

Following the Probate Court's determination that a person is incapacitated and that the appointment of a guardian is necessary or desirable, it must determine the extent of the power to be exercised by the guardian with relationship to the incompetent person. We review that decision to determine whether the court has abused its discretion. The general powers of a full guardian are set forth in section 5-312, that provides in pertinent part:

A guardian of an incapacitated person has the same powers, rights and duties respecting his ward that a parent has respecting his unemancipated minor child, except that a guardian is not legally obligated to provide from his own funds for the ward.... In particular, and without qualifying the foregoing, a guardian has the following powers and duties, except as modified by order of the court:

(1) .... he is entitled to custody of the person of his ward and may establish the ward's place of abode within or without this State, and may place the ward in any hospital or other institution for care....

(2) .... Without regard to custodial rights of the ward's person, he shall take reasonable care of his ward's clothing, furniture, vehicles and other personal effects....

(3) A guardian may give or withhold consents or approvals related to medical or other professional care, counsel, treatment or service for the ward. The guardian is empowered to withhold or withdraw life-sustaining treatment when the ward is in a terminal condition or persistent vegetative state....

(4) ....

(ii) Receive money and tangible property deliverable to the ward....

18-A M.R.S.A. § 5-312 (1981 & Supp.1994) (emphasis added).

In recognition that the "appointment of a guardian for an incapacitated person affects the fundamental personal liberty of the prospective ward," Matter of Howes, 471 A.2d 689, 691 (Me.1984), by P.L.1985, ch. 440, § 2, the Legislature completely replaced and modified section 5-304. Previously, the section had merely stated the court could appoint a guardian if a person was incapacitated and the appointment was necessary to provide continuing care and supervision. The present section provides:

The court shall exercise the authority ... so as to encourage the development of maximum self reliance and independence of the incapacitated person and make appointive and other orders only to the extent necessitated by the...