Most disabled adults in Maine who are assigned legal guardians to take charge of their affairs are not represented by lawyers to protect their interests during the process, according to a new report that calls for reforms in the guardianship system.

In more than 2,000 cases over a three-year period, 75% of adults in Maine for whom legal guardianship was sought were not represented by an attorney, it says.

Disability Rights Maine collected information about 2,334 cases filed with the state’s probate courts between 2019-21 to produce a first-of-its kind report on a complex legal system for vulnerable adults. The organization’s legal director, Lauren Wille, said the findings were striking and demonstrate the need for continued reforms.

Lauren Wille Contributed photo

“We had so much anecdotal information, but we really wanted to see whether what we were seeing in anecdotes was reflected generally in numbers,” Wille said. “In some ways, what we learned was not surprising because I think even before I looked at a single docket, I would have surmised that people largely go unrepresented.”

Adult guardianship is the legal process that gives someone authority to make decisions for another person, often someone who is intellectually or developmentally disabled. In most cases, it’s a parent seeking guardianship of a child once they reach adulthood, but there are many instances in which unrelated individuals are appointed guardians by the state.

Under state law, guardianship is granted when a judge finds that an individual is unable to “receive and evaluate information or make or communicate decisions.” In the cases reviewed by Disability Rights Maine, 77% resulted in the appointment of a legal guardian, which means all financial and medical decisions are made by the guardian.

But the group found that when individuals were provided a lawyer, the percentage of cases that resulted in guardianship dropped by as much as 15%.

“Maine must do a better job to educate families and schools that guardianship is not the only option to support their young adult into adulthood,” said Staci Converse, the nonprofit’s senior managing attorney. “Probate courts must do better in ensuring that people are provided the zealous advocacy they are entitled to.”

A defendant is entitled to counsel in criminal cases, and is provided with an attorney even if they can’t pay. In child protection cases, an attorney is assigned specifically to advocate for the child.

Appointment of an attorney in guardianship cases, however, doesn’t happen automatically. Someone must file a petition, but that doesn’t always happen because individuals don’t know the resource is available or don’t believe it is needed. Wille said some of that gap is likely attributed to ableism – the false thinking that someone who is incapacitated wouldn’t benefit from legal counsel.

Throughout Maine’s legal system, a persistent shortage of attorneys made it difficult to secure representation in criminal and civil cases. Wille said she assumes that shortage is impacting guardianship cases as well.

In all three years studied, the rates in which individuals were provided counsel and the rates in which guardianships were granted remained consistent. There was, however, geographic disparity. For instance, in Cumberland County, individuals were twice as likely to be represented (29%) than in Oxford County (15%).

Maine’s probate code was rewritten in 2019, in part to better enshrine the rights of disabled adults. The code now instructs probate courts to consider less-restrictive alternatives – including something called supported decision-making – before granting guardianship.

One year earlier, Joshua Strong, of Damariscotta, became the first adult in Maine to have his guardianship dissolved in favor of something called supported decision-making. It allowed Strong, who has autism spectrum disorder and had been under the guardianship of his father, to be legally in charge of all decisions – about financial matters, about health care, about relationships.

The probate code also includes stronger language that says guardians must promote self-determination and involve individuals in decision-making, and created a mechanism for individuals to file grievances.

Disability Rights Maine, the state’s designated protection and advocacy agency, has highlighted in recent annual reports other cases where its attorneys have intervened.

In one case, an adult named Cooper was compelled to move into a new home by his guardian. Disability Rights Maine filed a grievance to stop that from happening. It ultimately led to the dissolution of Cooper’s guardianship.

In another, an individual named Lucy contacted Disability Rights Maine because her guardian wasn’t allowing her to use food stamp benefits. After a grievance was filed, Lucy’s right to control her own benefits was affirmed.

But even with some recent improvements in the system, including alternatives to guardianship, Wille said the data gathered for this recent report indicates more needs to be done.