Maine Revised Statutes Title 18-C Sec. 5-123 – Use of agent by guardian or conservator
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1. Delegation consistent with plan and fiduciary duty. Except as otherwise provided in subsection 3, a guardian or conservator may delegate a power to an agent that a prudent guardian or conservator of comparable skills could prudently delegate under the circumstances if the delegation is consistent with the guardian’s or conservator’s plan and fiduciary duty.
[PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
Terms Used In Maine Revised Statutes Title 18-C Sec. 5-123
- Conservator: includes a coconservator. See Maine Revised Statutes Title 18-C Sec. 5-102
- Fiduciary: A trustee, executor, or administrator.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Guardian: includes a coguardian but does not include a guardian ad litem. See Maine Revised Statutes Title 18-C Sec. 5-102
- Individual subject to guardianship: means an adult or minor for whom a guardian has been appointed. See Maine Revised Statutes Title 18-C Sec. 5-102
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- State: includes an Indian tribe or band recognized by federal law or formally acknowledged by a state. See Maine Revised Statutes Title 18-C Sec. 5-102
2. Delegating a power. In delegating a power under subsection 1, the guardian or conservator shall exercise reasonable care, skill and caution in:
A. Selecting the agent; [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
B. Establishing the scope and terms of the agent’s work in accordance with the guardian’s or conservator’s plan; [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
C. Monitoring the agent’s performance and compliance with the delegation; and [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
D. Redressing action or inaction of the agent that would constitute a breach of the guardian’s or conservator’s duties if performed by the guardian or conservator. [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).]
3. Delegation limitation. A guardian or conservator may not delegate all powers to an agent.
[PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
4. Agent performing a delegated power. In performing a power delegated under this section, an agent shall:
A. Exercise reasonable care to comply with the terms of the delegation and use reasonable care in the performance of the delegated power; and [PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
B. If the agent has been delegated the power to make a decision on behalf of the individual subject to guardianship or conservatorship, in making the decision use the same decision-making standard the guardian or conservator would be required to use in making the decision. [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).]
5. Jurisdiction of court. By accepting a delegation of a power from a guardian or conservator under this section, an agent submits to the jurisdiction of the courts of this State in an action involving the agent’s performance as agent.
[PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
6. Liability. A guardian or conservator that delegates and monitors a power in compliance with this section is not liable for the decisions or actions of the agent.
[PL 2017, c. 402, Pt. A, §2 (NEW); PL 2019, c. 417, Pt. B, §14 (AFF).]
SECTION HISTORY
PL 2017, c. 402, Pt. A, §2 (NEW). PL 2017, c. 402, Pt. F, §1 (AFF). PL 2019, c. 417, Pt. B, §14 (AFF).