Posts Tagged ‘Maine Supreme Court’

Privacy Concerns Loom Large in Probate Court

JANUARY 16, 2017 VOLUME 24 NUMBER 3
Things change. This is our twenty-fourth year of publishing Elder Law Issues, and one thing we frankly didn’t think much about a quarter-century ago was privacy. Today it’s a big concern, and central to a lot of our thinking.

When Fleming & Curti, PLC, first formed in 1994, partners Tom Curti and Robert Fleming each already had nearly twenty years of professional practice. During those early years, we commonly included client’s Social Security numbers in estate planning documents, as did most practitioners. We all routinely provided detailed financial information in court filings — both in probate cases and in guardianship and conservatorship matters.

Yes, “identity theft” was an issue, even in the 1970s and 1980s. But most cases of identity theft in those days involved bad people looking for the names of people who had died in their teens, or even before, and applying for credit and entering into transactions using those names. Even if information was filed in the County courthouse, it was only theoretically vulnerable — few people knew how to get into court files, and one would have to physically travel to the courthouse to look up information. While nominally public, information filed in public records did not seem very vulnerable.

That is simply not the case any longer. Many county courts (not — yet — including the Pima County Superior Court in Tucson) have all of their court files available online. Regional and national aggregators — and even search engines — can list your name, or your parents’ names, for easy retrieval. Identity thieves can look up that information from the comfortable anonymity of their own computers, and from anywhere in the world.

At the same time, public information is generally, well, public. The community has a right to know who has been sued, who has brought suit, and who is involved in court cases. But how to balance that open disclosure with the need for privacy?

That’s the problem faced this month by the Maine Supreme Court — in a request by a single participant in the Maine guardianship/conservatorship system. “Emma” (not her real name — the Supreme Court itself agreed to “de-identify” Emma by giving her a false name) sought to have her financial records removed from the publicly available records. She alleged that the court was involved in disclosing her personal information, and that the practice should change. She also argued that removing the public information would be an appropriate accommodation under the Americans With Disabilities Act, and that failure to do so was discriminatory against individuals whose disabilities resulted in court-ordered guardianships and conservatorships.

The probate judge in Maine recognized that there was a legitimate concern. In an unusual request, he asked the state Supreme Court to tell him: should such records be completely hidden from view, referred to but not made available, summarized but not actually put online, or made completely available online?

The Maine Supreme Court punted. It observed that it might be appropriate to set a statewide rule, but not in an individual case. It ruled that Emma might well have a method of making her case, using her ADA argument. And, it reasoned, it wasn’t particularly good at giving general advice — its job was to decide individual cases, and not so much to review rules and procedures. They declined to answer the judge’s questions. Conservatorship of Emma, 2017 ME 1, January 5, 2017,

This problem faces every court, not just those in Maine. In Arizona, for instance, our Supreme Court has adopted extensive rules attempting to maintain privacy of items like Social Security numbers, bank records and balances, medical diagnoses and information. Today much of the contents of a guardianship or conservatorship file will be sealed, made available only on specific court order and then only to individuals who have some reasonable basis for getting access.

There are several other ironies in the Maine Supreme Court’s review of confidentiality. One involves Emma herself — though the Court changed her name, it left enough detail that it was frankly child’s play to look her up, learn her name and address, and the approximate value of her assets — without setting a foot in Maine. It took about fifteen minutes of online searching; we did not seek to learn anything about Emma, but only to see how easy it might actually be.

We sympathize with the Maine courts’ concern about how to balance information with privacy. We have been wrestling with the same problem in this weekly blog-based newsletter for several years. Regular readers will see that we, like the Court, anonymize names of litigants on a regular basis. We do that despite the reality that their names are usually public records (usually included in the name of the case itself — though not in Emma’s case). Why bother? At least we hope that a search for a grandmother or uncle by name will not list their legal troubles — and our newsletter article about them — at the top of the list. But in order to give readers the ability to follow up on the details of court opinions, we still have to include the name of the case.

It seems likely that the County court handling Emma’s case will continue to work on how to protect privacy issues. The judge who entered orders in her case — and who helped seal much of the public record about her — died in September last year. His elected successor: his wife, who presumably will have similar plans for protecting personal information in probate proceedings.

Maine Guardianship Violates Uniform Jurisdiction Act

JULY 25, 2016 VOLUME 23 NUMBER 28
Before any guardianship or conservatorship action can be filed in a local court, the court must have jurisdiction over the person subjected to the proceeding. For many decades that had meant (more or less) that the person must be physically present in the state, and not much more. That began to change in 2007, with the proposal, and quick adoption in most states, of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (the UAGPPJA).

Arizona, for instance, adopted the UAGPPJA in 2010. It has now been adopted by 45 states (plus the District of Columbia and Puerto Rico); the holdout states are Florida, Kansas, Michigan, Texas and Wisconsin. The law is intended to address, among other things, the problem of interstate disputes among family members — and especially to prevent warring family members from gaining tactical advantage by moving incapacitated family members involuntarily to a new state before filing a court proceeding. It received much of its impetus from the celebrated case of Lillian Glasser, whose family and friends fought over where to file her guardianship proceeding. In that regard, it is mildly ironic that one of the remaining states not adopting the UAGPPJA is Texas, where half of Ms. Glasser’s disputed guardianship case played out. Ms. Glasser herself, incidentally, died in her Florida home in 2011 — in yet another one of the few states not yet adopting the UAGPPJA.

The UAGPPJA actually addresses other, more mundane issues, as well. It establishes a mechanism for transferring guardianship proceedings to a new state when the subject of the proceedings moves. It also makes it easier for guardians (and conservators) to establish their authority in states other than the one in which the proceedings are filed. All that should make management of guardianship easier — even across state lines.

Despite its adoption in almost every state, there is precious little case law interpreting the UAGPPJA. A recent case out of Maine adds to the interpretation of the law, and helps reinforce the principles that gave rise to its adoption.

What should happen, then, when a person who needs a guardian travels across state lines, and comes to the attention of the court in a state where they do not live? If they got to the new state by the acts of a family member seeking advantage, it seems easy to answer that the family member’s misbehavior should not be rewarded. But what if there was no misbehavior — and, indeed, no family member or friend involved?

That is the dilemma that faced the Maine probate court in the case of Henry Smith (not his real name). Henry had lived for years in California. After he had a stroke in 2012, he was partially paralyzed. In an apparent attempt to get back to his original hometown in Canada, he sold his house in California and traveled across the country. He spent time in Washington State, Arizona, New Mexico and Georgia before arriving in Maine one day in 2013.

Henry checked into a hotel in Portland, Maine, and asked the staff to help him with transfers from his wheelchair to bed and to the toilet. After they worked with him that first night, the hotel staff became concerned about his ability to take care of himself, and called the police.

Portland police visited Henry, decided he was unable to make his own decisions, and took him to the psychiatric unit at a local hospital. From there, Henry was involuntarily committed for mental health treatment and then released to an assisted living facility — but not before a guardianship proceeding was initiated.

Because Henry had no family, friends or even acquaintances in Maine, the probate court appointed the public guardian to manage Henry’s placement and care. The court did give Henry some autonomy to make at least some of his personal decisions, but the public guardian was ultimately in charge of where he would live, whether he could return to either Canada or California, and what medical care he would receive.

Henry appealed his guardianship, and the Maine Supreme Court agreed with his objections. The UAGPPJA, ruled the Court, allowed an emergency guardianship order in Maine, but only for a six-month period. Since the guardianship had by that time already been in place for almost two years, the UAGPPJA’s jurisdictional limitations had already been violated. The Court did give the public guardian forty-five more days to figure out where Henry should be cared for. Guardianship of Sanders, July 7, 2016.

Does that mean that Henry must be released by Maine to continue his travels toward Canada, regardless of how ill-advised that plan might be? Not necessarily. The UAGPPJA requires that a person’s “home state” should have priority to act — and that means that California (his original home) should be given the chance to take responsibility for Henry’s decision-making. But if California declines or refuses to act, Maine courts may once again have the authority to continue the guardianship.

By our count, this is just the third appellate decision relying on the UAGPPJA (the other two were in Arkansas in 2009, and Tennessee in 2013). It seems that the mere existence of the law has significantly reduced the abuses that seemed so widespread when we first wrote about Lillian Glasser’s case back in 2007.

Maine Service Cutback Leaves Disabled Minor Without Program

FEBRUARY 6, 2012 VOLUME 19 NUMBER 5
Here’s an anecdote that we expect to see repeating itself over the next few years. It involves a fifteen-year-old boy with severe disabilities, and the Maine state Medicaid program. It also involves Maine’s efforts, like those of other states (including Arizona), to trim its eligibility roles for Medicaid, and the real problems that creates for individuals needing services.

CT (his full name is edited out of the reported court case) requires full-time, one-on-one adult supervision to prevent him from injuring himself. His mother applied for and got him on Maine’s program for home and community-based services, so that he could be cared for in a residential center or even at home rather than being institutionalized. That was in 2005 — two years after CT had been placed in a New Hampshire residential facility after failed trials in programs at his family home and in New Jersey.

CT’s mother assumed that getting him eligible for assistance from the State of Maine would mean that he would begin getting services — but that didn’t happen. The problem wasn’t his eligibility, but the availability of programs. He was placed on a waiting list in case a suitable placement opened up, but only twelve children in the state were getting services under the program and it didn’t look too promising.

Just after CT got eligible Maine decided to try to cut its Medicaid program by withdrawing its home and community-based services. Since those programs operate under a special waiver, it would be simple — Maine just stopped running a waiver program. But rather than re-institutionalize all patients already in the community, Maine announced that it would simply cut off new entries into the program, but would not remove services to those already receiving services.

Program officials assured CT’s mother that he would stay on the waiting list for placement. She received a letter from a program official telling her that Maine would “honor our mutual commitment to the children currently receiving, or those having already been approved for services in this waiver program.” Problem was, that letter was incorrect. Because CT was only eligible, not actually receiving services, he would be cut off from any future possible placement under the program.

Four years later CT’s mother finally got a residential home in Maine to make a proposal to care for CT. The proposal was contingent on funding through the waiver program he had been eligible for during those four years. Unfortunately, the Maine Medicaid agency denied the request, pointing to the 2005 cut-off of all new service requests.

CT’s mother appealed, arguing that she had relied on the state’s misrepresentations and that CT was injured by the reversal. The agency denied her again, and a judge upheld that denial. She appealed to the Maine Supreme Court.

The Supreme Court Justices upheld the denial of services for CT. They analyzed the arguments by applying the legal principle of “equitable estoppel.” Under that doctrine, the courts can give relief to someone who has relied on another person’s representations if that reliance has worked to their detriment. The courts can order a result that would not be possible under contractual or other theories, in order to prevent a miscarriage of justice.

There are at least two problems with the application of equitable estoppel to CT’s case, however. First, there is a general rule that one can not assert equitable estoppel claims against the state itself. If an agent of the state misrepresents state policy, that does not usually create a right to recover on behalf of someone who was injured by relying on that misrepresentation.

The second problem with applying equitable estoppel principles to CT’s case is more serious, though. The Supreme Court noted that, though CT (through his mother) relied on the state’s misrepresentation, he was not injured by that reliance. Yes, he was injured — by the withdrawal of eligibility that had previously been extended. But that injury did not occur because he relied on the state’s misrepresentation — it occurred because the state cut back its program.

The Court notes that if CT’s mother had found him a placement shortly after his eligibility, she could have gotten him into the waiver program before it was closed. But the Justices did not see any persuasive evidence that she would have found such a placement but for the misrepresentations that he would remain eligible for future placements if they opened up. Mrs. T v. Commissioner of Department of Health and Human Services, February 2, 2012.

What might CT’s mother have done if she had known how his eligibility would be cut off? She might have found him a placement in Maine more quickly, but in Maine, as in other states, there simply were not enough providers to take care of all the state’s residents with disabilities. As state budgets shrink, we can expect to see variations of CT’s story play out in other states as programs and services are withdrawn from a vulnerable and needy population.

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