Guardianship and Conservatorship of Vincent M. Jones, 164 A.3d 969

Background

Kenneth Jones was appointed guardian and conservator for his son Vincent in 2008; Kenneth retained Attorney Susan Thiem as counsel.
In 2013 Kenneth sought and the probate court retroactively authorized a supplemental needs trust for Vincent to preserve MaineCare eligibility.
A $25,000 payment to Vincent’s long-term care provider (CWC) prompted the court to appoint visitors to investigate billing and the trust/accounting; records showed an invoice exceeding $62,000 and correspondence from Thiem asserting Medicaid should have paid earlier.
The court found a discrepancy in the conservator’s third account, concluded an error by Thiem necessitated the $25,000 payment, and criticized Thiem’s handling of Medicaid/Medicare issues; Thiem moved to recuse and later withdrew as counsel.
After multi-day hearings in early 2016, the court (1) dissolved the 2013 trust and drafted/approved a replacement supplemental needs trust itself, and (2) ordered Thiem to disgorge $3,638.35 in fees and made her conditionally liable up to $25,000 (with a doubling penalty for delay).
On appeal, the Maine Supreme Judicial Court affirmed the court’s authority to draft and approve the replacement trust but vacated the payment/disgorgement order against Thiem for lack of procedural due process and remanded for further proceedings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the probate court could draft and approve a replacement supplemental needs trust	Kenneth: § 309 barred a judge from drafting documents the judge must pass on, so the court lacked authority to draft the trust	Court/State: Probate courts have statutory authority to create trusts for protected persons under 18-A M.R.S. § 5-408(3), which controls over general § 309	Affirmed: Court may draft and issue the replacement trust under its express statutory trust-creation authority
Whether res judicata or lack of notice barred creation of the successor trust	Kenneth: prior approval of the 2013 trust and lack of notice/hearing barred reformation	Court: successor trust addressed different functional problem; notices referenced the court’s motion to reform and hearings occurred	Rejected: res judicata not applicable; procedure provided adequate notice as to trust reform
Whether the payment/disgorgement order against Attorney Thiem comported with due process	Thiem: she received no notice of the hearings resulting in the payment order after withdrawal and had no opportunity to be heard	Court: order targeted returned fees as unreasonable and intended to protect ward’s estate	Reversed/Vacated: order set aside because Thiem was not given notice or opportunity to be heard; conditional extended liability also vacated for lack of procedural clarity
Nature and required process for conditional monetary liability beyond disgorgement	Thiem: contends lack of clarity on whether order was contempt, sanction, or damages and thus no stated procedural protections	Court: order ambiguous as to nature/purpose of conditional liability	Remanded: because the order failed to state its nature, appropriate process (contempt procedures or malpractice/damages process) must be provided on remand

Key Cases Cited

In re Christopher H., 12 A.3d 64 (Me. 2011) (preservation-of-issues rule and appellate review principles)
Estate of Reed, 142 A.3d 578 (Me. 2016) (probate court actions are void unless authorized by statute)
Butler v. Killoran, 714 A.2d 129 (Me. 1998) (specific statute controls over general statute)
In re Adden B., 144 A.3d 1158 (Me. 2016) (de novo review for procedural due process claims)
Michaud v. Mutual Fire, Marine & Inland Ins. Co., 505 A.2d 786 (Me. 1986) (essence of due process is notice and opportunity to be heard)
Zinermon v. Burch, 494 U.S. 113 (1990) (due process varies with circumstance and requires notice of intended action and chance to respond)
Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) (property interests include rights with ascertainable monetary value)
Soley v. Karll, 853 A.2d 755 (Me. 2004) (vacating monetary award where court failed to explain basis or authority for award)