Standby Guardianship - Maine

Date: June 2018

Who Can Nominate a Standby Guardian

Citation: Rev. Stat. Tit. 18-C, §§ 5-201; 5-202; 5-204

Effective July 1, 2019: A person becomes a guardian of a minor by parental appointment or upon appointment by the court. The guardianship status continues until terminated, without regard to the location of the guardian or the minor.

A guardian may be appointed by will or other signed writing by a parent for any minor child the parent has or may have in the future. The appointment may specify the desired limitations on the powers to be given to the guardian. The appointing parent may revoke or amend the appointment before confirmation by the court.

The court may appoint a guardian for a minor if the court finds the appointment is in the best interests of the minor, finds the proposed guardian is suitable, and finds that any of the following apply:

  • The parents consent.
  • All parental rights have been terminated.
  • By clear and convincing evidence, the parents are unwilling or unable to exercise their parental rights, including, but not limited to, the following:
    • The parent is currently unwilling or unable to meet the minor's needs and that will have a substantial adverse effect on the minor's well-being if the minor lives with the parent.
    • The parent has failed, without good cause, to maintain a parental relationship with the minor, including, but not limited to, failing to maintain regular contact with the minor for a length of time that evidences an intent to abandon the minor.

If a guardian is appointed by a parent pursuant to § 5-202 and the appointment has not been prevented or terminated under § 5-203, that appointee has priority for appointment. However, the court may proceed with another appointment upon a finding that the appointee under § 5-202 has failed to accept the appointment within 30 days after notice of the guardianship proceeding.

How to Establish a Standby Guardian

Citation: Rev. Stat. Tit. 18-C, §§ 5-202; 5-203

Effective July 1, 2019: Upon petition of an appointing parent and a finding that the appointing parent will likely become unable to care for the child within 2 years, and after notice as provided in § 5-205(1), the court, before the appointment becomes effective, may confirm the parent's selection of a guardian and terminate the rights of others to object.

Until the court has confirmed an appointee under § 5-202, a minor who is the subject of an appointment by a parent and who is age 14 or older, the other parent, or a person other than a parent or guardian having care or custody of the minor may prevent or terminate the appointment at any time by filing a written objection in the court in which the appointing instrument is filed. The objection does not preclude judicial appointment of the person selected by the parent if all other requirements for appointment, including appointment over the objection of a parent, are met.

How Standby Authority is Activated

Citation: Rev. Stat. Tit. 18-C, §§ 5-202; 5-206

Effective July 1, 2019: Subject to § 5-203, the appointment of a guardian becomes effective upon the appointing parent€„¢s death, an adjudication that the parent is an incapacitated person, or a written determination by a physician who has examined the parent that the parent is no longer able to care for the child, whichever first occurs.

The guardian becomes eligible to act upon the filing of an acceptance of appointment, which must be filed within 30 days after the guardian's appointment becomes effective. The guardian shall do both of the following:

  • File the acceptance of appointment and a copy of the will with the court of the county in which the will was or could be probated or, in the case of another appointing instrument, file the acceptance of appointment and the appointing instrument with the court of the county in which the minor resides or is present
  • Give written notice of the acceptance of appointment to every parent, if living; the minor, if the minor is at least age 14; and a person other than the parent having care and custody of the minor

Unless the appointment was previously confirmed by the court, within 30 days after filing the notice and the appointing instrument, a guardian shall petition the court for confirmation of the appointment.

An order appointing a guardian of a minor must include the following:

  • The reasons for the appointment of the guardian
  • The powers and duties granted to the guardian
  • The rights and responsibilities retained by the parent
  • The anticipated duration of the appointment, including whether it remains in place until a petition to modify or terminate and whether the parties agree to termination after a particular event, such as return from deployment
  • A description of the process and standards for modification and termination

Involvement of the Noncustodial Parent

This issue is not addressed in the statutes reviewed.

Authority Relationship of the Parent and the Standby

Citation: Rev. Stat. Tit. 18-C, §§ 5-202; 5-206

Effective July 1, 2019: The appointment of a guardian by a parent does not supersede the parental rights of any parent. If all parents are dead or have been adjudged incapacitated persons, an appointment by the last parent who died or was adjudged incapacitated has priority.

An order appointing a guardian of a minor must specify whether the minor's parent retains any of the following rights and responsibilities after the appointment and, if any such rights or responsibilities are not retained, the reasons they are not retained:

  • A schedule of parent-child contact or a determination by the court that denial of parent-child contact is necessary to protect the physical safety or emotional well-being of the minor
  • Access to records and information regarding the minor
  • Parental rights and responsibilities as described under title 19-A, § 1501(5)
  • Child support as defined in title 19-A, § 1501(2)

The court may determine the reasonable frequency and duration of parent-child contact and may set conditions for parent-child contact that are in the best interests of the minor. Any schedule of contact must reflect any existing parent-child contact order in effect to the extent reasonably practicable and consistent with the court's findings or the agreement of the parties. The court may set forth specific conditions that must be satisfied by the parent prior to the start of some or all aspects of the contact schedule.

A parent may copetition and be appointed as a coguardian of the parent's minor child if the court determines a joint appointment with a nonparent is in the best interests of the minor and is made with the parent's consent.

Withdrawing Guardianship

Citation: Rev. Stat. Tit. 18-C, §§ 5-202; 5-210

Effective July 1, 2019: The authority of a guardian appointed under this section terminates upon the first to occur of the appointment of a guardian by the court or the giving of written notice to the guardian of the filing of an objection pursuant to § 5-203.

A guardianship of a minor terminates upon the minor's death, adoption, emancipation, marriage, attainment of majority, or as ordered by the court.

The appointment of a guardian terminates upon the death, resignation, or removal of the guardian or upon termination of the guardianship. A resignation of a guardian is effective when approved by the court.

A minor who is age 14 or older, a parent of the minor, or a person interested in the welfare of the minor may petition for removal of a guardian on the grounds that removal would be in the best interests of the minor or for other good cause. A guardian may petition for permission to resign. A petition for removal or permission to resign may include a request for appointment of a successor guardian.

Related Resources