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Due Process Required in Guardianship Proceeding

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Due process

Probate courts have broad discretion about how to handle the cases they consider. Especially when it comes to guardianship and conservatorship, the probate judge usually has considerable latitude about how to proceed. It is essential, however, that the probate judge recognize that he or she must give the litigants their due process — the rules must be followed.

Due process in probate court

Last week we wrote about a due process issue that arose in the Colorado Court of Appeals. This week we read a story that is surprisingly similar, this time from the Maine Supreme Court. Both address some of the requirements of due process in guardianship and conservatorship cases.

In last week’s case, the probate judge had three competing petitions for guardianship of a man who was clearly incapacitated. Rather than decide among the presented options, the judge decided to appoint a local agency she knew would do a good job.

When relatives appealed the agency’s appointment, the appellate court agreed that there was an additional requirement. It was not improper to appoint the agency — they might well be the best choice. What was improper was to make the appointment without utilizing the process for appointment of a guardian. The appellate court sent the case back for further proceedings. The probate judge was ordered to have a court investigator evaluate the new candidate before the agency could be appointed.

The similar Maine case

This week we saw a surprisingly similar case out of Maine — with an identical result. Two competing petitions had been filed for guardianship of Patricia, an elderly Maine woman. Her stepson filed the initial petition, and her two out-of-state sons filed an objection and sought their own appointment as guardians.

At the hearing, the probate judge decided that it would be best for Patricia if her sons did not act as guardian (the stepson had by that time withdrawn his request). The probate judge appointed two caretakers who had been hired by the sons to oversee Patricia’s care.

Patricia’s sons appealed. They argued that they had priority for appointment as guardians, and the probate court should have appointed them. They also argued that the probate judge should not have appointed the caretakers because they had not filed a petition seeking their appointment, or gone through the process mandated by Maine law for appointment of a guardian.

Maine’s Supreme Court agrees — sort of

The Supreme Court of Maine issued its ruling on the case last week. As with the similar Colorado case, the high court of Maine agreed that guardianship proceedings should follow the process set out by statute — the process, in fact, to which Patricia was entitled.

To be clear, it was Patricia’s “due process” rights at issue. Before appointing someone who might be a better choice, the probate judge should have required that they file a petition, have it served on Patricia, and gone through the procedural steps necessary for appointment. As in the Colorado case, that would include a review by a court-appointed investigator. In Maine, it would require appointment of a guardian ad litem. It also would require the proposed guardian to file a guardianship plan and various reports.

Based on that failure, the Maine Supreme Court vacated the appointment of Patricia’s caretakers as her guardian, and returned the case to the probate court. Presumably, the probate judge will review the status, and consider the written petition filed by the caretakers (assuming that they file a petition). The court investigator and the other parties will then have a chance to ask questions and flesh out the merits of the caretakers’ case.

Why not just appoint the sons as guardians?

Maine, like Arizona, has a statute that gives immediate family members priority for appointment as guardian. In fact, both Arizona’s and Maine’s statute come from the Uniform Probate Code, which both states have adopted. So why not just order that Patricia’s sons should be appointed?

Despite the priority of family members, the probate judge (in both states) is given wide latitude to deviate from the priority list. Before deviating, though, these two recent cases make clear that due process must have been provided. Once that process has been followed, the court may disregard the priority listing if the judge decides it would be in the best interests of the subject of the guardianship proceeding.

In Patricia’s case, her two sons live across the country. They have been, as the Supreme Court noted, “largely estranged” from Patricia for much of the past two decades. The appellate judges made it clear that the probate court could consider that in deciding what would be in Patricia’s best interests.

It is interesting, and unusual, to note some of the details of Patricia’s relationship with her sons. Despite having been somewhat estranged, there does not appear to be any animosity (or even ambivalence) on her sons’ part at all. Both are professionals, and they have been very active in arranging Patricia’s care over the past few months. In fact, they located, reviewed and ultimately hired the caretakers now being suggested as guardians for Patricia. The important point here: the decision is not about the entitlement of family members to serve, but about the best interests of the incapacitated person. Guardianship of Patricia S., February 12, 2019.

What will happen next?

It’s hard to tell from reported appellate cases what will happen when the case is reconsidered by the trial court. In Patricia’s case, though, there are broad hints about the likely outcome.

The Maine Supreme Court has made clear that the probate court can once again appoint the caretakers as Patricia’s guardian. First, though, the caretakers will need to file a petition and go through the usual vetting process. There does not appear to be any question about Patricia’s need for a guardian — and she told the probate judge she preferred the caretakers acting in that role. It looks like the caretakers will end up being appointed.

What about in Arizona?

As noted, Arizona’s probate law is very similar to Maine’s. Both states have adopted the Uniform Probate Code, and both have operated under that standardized law for at least four decades. Colorado is in the same position. The differences among the three versions of the uniform law are mostly small ones.

Would an Arizona probate judge throw up her hands and appoint the caretakers as guardian in a difficult case? Yes. We have seen it happen. In Maine, Colorado, Arizona and elsewhere, family members are often bypassed in favor of someone preferred by the incapacitated person, or closer to the care needs (including geographically). It’s hard to predict with certainty, but it seems like Patricia’s guardianship case might well proceed very similarly under Arizona law.


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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.