Maine Revised Statutes Title 18-C Sec. 5-414 – Powers of conservator requiring court approval
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1. Powers requiring specific authorization; notice. Except as otherwise ordered by the court, a conservator must give notice to persons entitled to notice under section 5?403, subsection 4 and receive specific authorization by the court before the conservator may exercise with respect to the conservatorship the power to:
A. Except as provided in section 5?421, subsection 2, paragraph Y, make gifts, except those of de minimis value; [PL 2019, c. 417, Pt. A, §70 (AMD).]
B. Sell, encumber, convey or release an interest in, sign or revoke a transfer on death deed for or surrender a lease to the primary dwelling of the individual subject to conservatorship. For purposes of this paragraph, “transfer on death deed” has the same meaning as in section 6?402, subsection 6; [PL 2023, c. 73, §1 (AMD).]
C. Convey, release or disclaim contingent or expectant interests in property, including marital property and any right of survivorship incident to joint tenancy; [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
D. Exercise or release a power of appointment; [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
E. Create a revocable or irrevocable trust of property of the conservatorship estate, whether or not the trust extends beyond the duration of the conservatorship, or revoke or amend a trust revocable by the individual subject to conservatorship; [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
F. Exercise a right to elect an option or change a beneficiary under an insurance policy or annuity or surrender the policy or annuity for its cash value; [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
G. Exercise a right to an elective share in the estate of a deceased spouse or domestic partner of the individual subject to conservatorship or to renounce or disclaim a property interest; [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
H. Grant a creditor a priority for payment over creditors of the same or higher class if the creditor is providing property or services used to meet the basic living and care needs of the individual subject to conservatorship and preferential treatment otherwise would be impermissible under section 5?428, subsection 5; and [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
I. Make, modify, amend or revoke the will of the individual subject to conservatorship, with the conservator treated as the individual making, modifying, amending or revoking the will. [PL 2019, c. 417, Pt. A, §71 (AMD).]
[PL 2023, c. 73, §1 (AMD).]
Terms Used In Maine Revised Statutes Title 18-C Sec. 5-414
- Annuity: A periodic (usually annual) payment of a fixed sum of money for either the life of the recipient or for a fixed number of years. A series of payments under a contract from an insurance company, a trust company, or an individual. Annuity payments are made at regular intervals over a period of more than one full year.
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Conservator: includes a coconservator. See Maine Revised Statutes Title 18-C Sec. 5-102
- Conservatorship estate: means the property subject to conservatorship under this Act. See Maine Revised Statutes Title 18-C Sec. 5-102
- Deed: The legal instrument used to transfer title in real property from one person to another.
- Dependent: A person dependent for support upon another.
- Domestic partner: means one of 2 unmarried adults who are domiciled together under long-term arrangements that evidence a commitment to remain responsible indefinitely for each other's welfare. See Maine Revised Statutes Title 1 Sec. 72
- Individual subject to conservatorship: means an adult or minor for whom a conservator has been appointed. See Maine Revised Statutes Title 18-C Sec. 5-102
- Irrevocable trust: A trust arrangement that cannot be revoked, rescinded, or repealed by the grantor.
- Joint tenancy: A form of property ownership in which two or more parties hold an undivided interest in the same property that was conveyed under the same instrument at the same time. A joint tenant can sell his (her) interest but not dispose of it by will. Upon the death of a joint tenant, his (her) undivided interest is distributed among the surviving joint tenants.
- Lease: A contract transferring the use of property or occupancy of land, space, structures, or equipment in consideration of a payment (e.g., rent). Source: OCC
- Liabilities: The aggregate of all debts and other legal obligations of a particular person or legal entity.
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Property: means anything that may be the subject of ownership and includes both real and personal property, tangible and intangible, or any interest therein. See Maine Revised Statutes Title 18-C Sec. 5-102
- Right of survivorship: The ownership rights that result in the acquisition of title to property by reason of having survived other co-owners.
- Sign: means , with present intent to authenticate or adopt a record:
2. Approval based on decision of individual. In approving a conservator’s exercise of the powers listed in subsection 1, the court shall consider primarily the decision the individual subject to conservatorship would make if able, to the extent the decision can be ascertained.
[PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
3. To determine decision of individual. To determine under subsection 2 the decision the individual subject to conservatorship would make if able, the court shall consider the individual’s prior or current directions, preferences, opinions, values and actions, to the extent actually known or reasonably ascertainable. The court also shall consider:
A. The financial needs of the individual subject to conservatorship and individuals who are in fact dependent on the individual subject to conservatorship for support, and the interest of creditors; [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
B. Possible reduction of income, estate, inheritance or other tax liabilities; [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
C. Eligibility for governmental assistance; [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
D. The previous pattern of giving or level of support provided by the individual subject to conservatorship; [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
E. Any existing estate plan or lack of estate plan of the individual subject to conservatorship; [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
F. The life expectancy of the individual subject to conservatorship and the probability that the conservatorship will terminate before the individual’s death; and [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
G. Any other relevant factors. [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
[PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
4. Power of attorney for finances. A conservator may not revoke or amend a power of attorney for finances executed by the individual subject to conservatorship. If a power of attorney for finances is in effect, a decision of the agent takes precedence over that of the conservator, unless there is a court order to the contrary.
[PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
5. Application to existing conservatorships. For conservatorships established prior to September 1, 2019, the conservator is not subject to the notice and court authorization requirements under subsection 1, paragraph B until so ordered by the court.
[PL 2019, c. 417, Pt. A, §72 (NEW).]
SECTION HISTORY
PL 2017, c. 402, Pt. A, §2 (NEW). PL 2017, c. 402, Pt. F, §1 (AFF). PL 2019, c. 417, Pt. A, §§70-72 (AMD). PL 2019, c. 417, Pt. B, §14 (AFF). PL 2023, c. 73, §1 (AMD).