This section answers basic questions about Wills, Will alternatives, and the probate process.

What is a Will and do I need one?

A Will is a legal document that states who you want to get your money and your property when you die. In Maine, anyone aged 18 or older who is of sound mind can make a Will. When you write your Will, you list all your property and who you want to give it to after you die (these people are called your beneficiaries). You may also designate your Personal Representative, the person who will carry out the wishes you specify in your Will and distribute your property. You can change your Will at any time so long as you are of sound mind. Otherwise, it’s only final at your death.

A good Will can prevent family members and others from fighting about your property in probate court. Here’s an example: Let’s say you have a long-time unmarried partner and you have children from a previous relationship. If you pass away without a will, Maine law provides that your children would inherit your property and not your partner. This may or may not suit you. But, you have the power to change this if you have a Will.

If you want to make sure a certain person gets a special item such as jewelry, make a Will! If you want to leave money to a favorite charity, make a Will! If you want your close friend, not your only living relative, to have most of your money or property, make a Will!

What happens to my things if I die without a Will?

If you do not have a Will, state law will determine where your things go after you die. This can be a fairly complicated process if you have a large or “blended” family. It is a good idea to talk to an attorney to make sure your wishes are understood by those who need to know.

Do I need an attorney to draft my Will?

No, but it’s risky to do it yourself. Laws are complex. This is especially true if you have a large or “blended” family or own real estate. An attorney can help make sure that your wishes are carried out after you die. 

How do I get a Will?

It is best to have an attorney help you with a Will. Hiring an attorney to write a good Will might cost less than you think. You may already know an attorney who you can call to find out what it would cost for a Will. If you don’t know any attorneys you could ask your friends and family if they have worked with an attorney. You could also find an attorney by calling the Maine State Bar Association’s Lawyer Referral Service at 1-800-860-1460. There is a $25 fee for a referral which includes a thirty minute consultation with an attorney.

IMPORTANT NOTE: You might be thinking about using a “Do-it-Yourself” estate planning software kit or a pre-printed Will form from an office supply store or an online form. This is not a good idea. If you cannot afford to hire an attorney to help you with a will there is a low-cost will form called the Maine Statutory Will form that is available through Maine’s sixteen Probate Courts (there is one Probate Court in each county). To find your local Probate Court please visit their website: https://www.maineprobate.net/welcome/

You can also write your will yourself. This is called a Holographic Will. The Will must be written in your own handwriting and signed by you. No witnesses are needed.

IMPORTANT NOTE: If you are being pressured by someone to get a will or to change your will it is important that you talk to an attorney for help.

IF YOU FEEL PRESSURED TO GET A WILL OR TO CHANGE YOUR WILL PLEASE CALL Legal Services for Maine Elders at 1-800-750-5353 and talk to an attorney for free.

Who makes sure that my Will is followed?

When you make a Will, you name the person who you want to take charge of your property after you die. This person is called the Executor or Personal Representative (PR). The PR finds and reads your original Will. They decide whether the Will needs to be “probated,” a process by which a probate court reviews the Will and makes sure the directions in the Will are followed.

If you own very little property when you die, the PR can most likely give it to the people you name in your Will without going to probate court. If you own a good amount of property, the PR sends the original Will to the probate court. They ask to be “appointed” by the court as PR. Your family is notified about this request and if no one objects, the court gives them the authority to act as PR. The PR may also pay any bills left at your death if there is money to do so. 

If I have a Will and it goes to probate, what will happen?

Normally, it does not take long or cost a lot to probate a Will in Maine. Many people go through this process without an attorney. The probate court simply makes sure everything is in order and the Will is followed. Sometimes, people listed in the Will object to the way things are being handled. Often, it has little to do with the value of the property being probated. The probate judge will settle these disputes.

Are there ways other than a Will to pass my property to others?

It depends on the type of property. Some property cannot be passed to others without a Will, and it is hard to know if you have taken care of everything without a Will.

An attorney can help you decide if you need a Will or can advise you on the best way to transfer property without a Will. Keep in mind that transferring property, with or without a Will, can be risky. Your MaineCare eligibility can be impacted by property transfers and gifts. Also, it can create unintended consequences for the people receiving the property. An attorney can help you understand your options and plan for the future.

Resources

Legal Services for Maine Elders 
If you are a Maine resident who is 60 or older and you have questions about the probate process or if you are being pressured by someone to get a will or to change your will, call the Legal Services for Maine Elders Helpline at 1-800-750-5353 to speak to an attorney for free.

When you need medical care, you have the right to make choices about that care. But there may come a time when you are so sick that you can't make your wishes known. You can stay in charge by putting your choices in writing ahead of time by completing an Advance Directive. This section will answer some basic questions about Advance Directives.

What is an Advance Directive?

Any spoken or written decision or instruction about the health care you want in the future is called an Advance Directive. You can tell your doctor or family what you want, but it is best to write it down.

Advance Directives are sometimes called Living Wills or Durable Health Care Powers of Attorney. If you have already signed one, make sure your doctor, your hospital and your family have a copy. If you don't have one, the Maine Hospital Association has a free form you can use. You can get the instructions and the form by clicking here. This is a very straightforward form that provides easy to follow directions. However, the law does not require that a particular form be used, so you may use any form that you like when preparing an Advance Directive.

Who can make an Advance Directive?

In Maine anyone 18 years old or older can complete an Advance Directive. If you are younger than 18 you may also be able to complete an Advance Directive under certain circumstances.

Do I need an Advance Directive?

If you sign an Advance Directive, your family and your doctor will know who to talk to about your care or what kinds of treatment you want or do not want when you are too sick to decide. This could happen if you have a serious illness or are near the end of life. If your doctor does not know your wishes, they will treat you until they can ask your family what you want. If your family does not know your wishes, you may get treatments you do not want.

What do I say in an Advance Directive?

The Maine Hospital Association form provides you with a number of choices, including:

1. Choosing someone to make all your health care decisions beginning either right away or when you are too sick to make decisions. That person is called your agent. Your agent can be a family member or friend. If you choose an agent, two (2) witnesses must sign your Advance Directive.
    
2. Choosing whether or not you want certain end-of-life treatments when you are very ill. For example, you can choose what you wish to have done if you are terminally ill or unconscious. Your agent must follow any choices you make in an Advance Directive.
    
3. Stating a desire to donate your organs. Indicate your wishes and any plans you have made to donate your organs.
    
4. Naming your primary doctor.

What happens if I do not make an Advance Directive?

If you do not name an agent or do not have an Advance Directive, the doctor will ask your family what treatment you would want, in this order:

• Spouse (unless legally separated) or similar relationship
• Adult children
• Parents
• Adult brothers and sisters
• Adult grandchildren
• Adult nieces and nephews
• Adult aunts and uncles

If the doctor can't reach a family member, the doctor may ask another adult relative or good friend who knows your values. If you do not want certain members of your family members to be able to make decisions for you, you need to put this in writing and give it to your doctor or hospital.

Your family can tell your doctor to continue to treat you. They can also tell your doctor to stop or not give treatment to keep you alive (life-sustaining treatment) if you are terminally ill or unconscious. Certain family members may not, however, be able to make other decisions for you unless you name one of them as your agent in your Advance Directive.

What rights do I have as a patient?

When you need medical care, you have certain rights, including the right to refuse care. You have a right to know:

• What your medical problem is and what tests and treatments may be needed.
• What the doctor thinks can be done and what the usual risks are.
• If there are other ways to care for you.
• What may happen if you refuse care.

How do I make an Advance Directive?

1. Get a free form and instructions from the Maine Hospital Association by clicking here. Most health care facilities also have free forms that you can use for making an Advance Directive. Legal Services for Maine Elders can also send you a copy of the Maine Hospital Association’s form. If you’d like to get one or if you would like help filling out the form, give LSE a call at 1-800-750-5353.
2. Talk to your doctor. Ask your doctor about your health and what might happen to you. Take the form with you to the visit to help you think about the choices you have.
3. Fill out the form, sign it, and have 2 others sign as witnesses. The person you choose to make health care decisions for you cannot be a witness to your signature. You don’t have to have an attorney to make an Advance Directive, unless you want to. You don’t have to get it notarized, but it’s a good idea to do so if you can.
4. Make copies and give one to each of your doctors or hospital. Ask your doctor to include it in your medical record. If you had an attorney help you with the form, give a copy to them. Also give a copy to the person you have named to make health care decisions for you. It’s a good idea to keep the original yourself and give other copies to your family.
5. Keep on talking about what you want. Writing an Advance Directive is just the start of an on-going process. Look at your Advance Directive every five years or if you have a new health situation to make sure it still reflects your wishes. Talk with your family, your doctor, and anyone else who is involved in your care about what you want. Make sure they agree to do what you want. It’s not easy to think about or talk about these things, but unless others know what you want, you may get care you don’t want, or your family could end up in court fighting about your care.
   
   If you aren't sure how to talk about this with your family, Legal Services for Maine Elders can provide you with some materials that include suggested topics. Call the Helpline at 1-800-750-5353 to get a copy of these materials.

What happens to the Advance Directive after I have signed it and given it to my doctor?

Your doctor will put the Advance Directive in your medical record, where it should be seen by everyone involved in your care. Later on, if you are terminally ill or unconscious, the doctor caring for you will follow the directions in your Advance Directive. If the doctor is not willing to follow your directions because of the doctor's own personal or religious beliefs, they must transfer you to the care of another doctor who will follow your directions.

When does my Advance Directive go into effect?

Many people want their Advance Directive to go into effect immediately. If you do, you have to say so in your Advance Directive. If your Advance Directive doesn’t say anything about when it will go into effect, it will be used only when you become “incapacitated,” meaning you are too sick to choose your care or tell others what care you want. Your doctor will help decide if that time has come and when your Advance Directive should be used. If your doctor later states that you have recovered and have regained your ability to choose your care or tell others what you want, then your Advance Directive is no longer in effect.

How will I be determined to be incapacitated?

Unless you state otherwise in your Advance Directive, your primary care physician will be responsible for determining incapacity. If your primary care physician is unavailable, then the physician who is providing you care at the time will make the incapacity determination.

If you want to name a specific person or someone other than your primary care physician to determine incapacity, then you must state this in your Advance Directive. Some alternative options might be:

• Your primary care physician makes an initial determination about your incapacity, but then must obtain a confirming second opinion from another doctor before your Advance Directive becomes effective.
• A probate court judge can make the incapacity determination.

Does my doctor have to follow my choices in my Advance Directive?

Yes. If your doctor, hospital, or other place of health care has any special rules about health care decisions, or if they will not carry out your decisions, they must tell you. They must then arrange to move you to a doctor, hospital, or other place which will carry out your decisions.

Will my Advance Directive be followed by emergency responders?

Sometimes emergency medical personnel administer life support to people who have Advance Directives that say they don’t want life supports. This may happen because, in an emergency, the staff will have to act quickly. They may not have time to read the Advance Directive before responding to the emergency. And, even after they read the Advance Directive, the would need even more time to make sure that the patient is in a terminal condition and that it is indeed appropriate to withdraw treatment.

If you are already in a terminal condition and feel strongly that you do not want to be given life support under any circumstances, you should talk to your doctor. Your doctor may be able to notify the ambulance service and the emergency room that they should not give life support and that they should only give you treatment that will ease your pain and keep you comfortable.

What happens if my heart stops?

If you are in the hospital and your heart or breathing suddenly stops, drugs, machines, and other means will be used to try to restart them. This is called cardiopulmonary resuscitation or CPR. CPR is always done unless your doctor writes an order called a "Do Not Resuscitate" order or DNR. If you have concerns about CPR, discuss them with your doctor while you are well. If you make an Advance Directive that says you do not want CPR, it may not be possible for the hospital to follow your decision all the time. For example, if you come to the emergency room and your heart has stopped, there may be no time to check your Advance Directive before CPR is started. If you do not want CPR, your doctor must write a DNR order for you and put it in your hospital record. Your doctor will then give you a special orange bracelet designed to alert ambulance crews and hospital emergency personnel that you do not want CPR.

What if I suffer from a mental health problem?

You may choose to sign a different form, called a Mental Health Directive, which allows you to choose what treatment you want if you become very mentally ill and are unable to make health care decisions. This is similar to making a Health Care Advance Directive, but there are questions that are specific to mental health determinations that will affect what you write in your Mental Health Directive. You should contact the Maine Disability Rights Center and talk to an attorney about this process. See Resources, below, for contact information for the Maine Disability Rights Center.

Does a Guardian have to follow my Advance Directive?

Yes, unless the probate court specifically decides otherwise. Under the “Uniform Health Care Decisions Act,” Guardians have to follow Advance Directives unless the court orders that the Guardian’s decisions need to be followed instead.

If I make an Advance Directive in Maine, will it be followed if I am in another state?

It is possible that you may get sick, injured, or need to go to a hospital while visiting in another state. You should carry a copy of your Advance Directive with you in your wallet or purse, since your medical record will not be available right away to the doctors there. You should also have your Advance Directive witnessed by a notary public or attorney if you travel sometimes and are concerned about how your Advance Directive will be treated in another state. Whether the doctors there follow your directions depends on whether that state has an Advance Directive law similar to Maine's. As of February 2013, at least 42 states recognize Advance Directives.

Will signing an Advance Directive affect my insurance?

The law says that insurance companies are not allowed to base anything in an existing or future life insurance policy on whether a person does or does not have an Advance Directive.

What else should I know about Advance Directives?

Every hospital and many other places that provide health care in Maine have Advance Directive forms or can tell you how to get them. Just ask your doctor or nurse. They can explain the forms, but they cannot give you legal advice.

No one can make you sign a form or stop you from signing it. You also have the right to change or cancel a form at any time. The Advance Directive form does not allow others to control your money or property. It does not allow anyone to violate laws against mercy killing and euthanasia.

What can I do if I don’t think my medical provider followed my Advance Directive?

If you have a complaint about how a hospital or other health care facility handled your Health Care Advance Directive, you may contact:

               Division of Licensing and Regulatory Services
               Maine Department of Health and Human Services
               State House Station 11, 41 Anthony Ave. 
               Augusta, ME  04333
               Tel: 207-287-9300 OR 1-800-383-2441

If you have a complaint about how a physician or physician assistant handled your Health Care Advance Directive, you may contact:

               Maine Board of Licensure in Medicine
               137 State House Station
               Augusta, ME 04333-0137
-                Tel: 207-287-3601 OR Complaints: 1-888-365-9964

                              OR

               State of Maine Board of Osteopathic Licensure
               142 State House Station
               Augusta, ME  04333-0142
               Tel: 207-287-2480 OR Complaints: 1-888-365-9964

If you have a complaint about how a nurse practitioner handled your Health Care Advance Directive, you may contact:

Maine State Board of Nursing
158 State House Station
Augusta, ME 04333-0158
Tel: 207-287-1133

Resources

Legal Services for Maine Elders      
If you are a Maine resident who is 60 or older and you have questions about making a Health Care Advance Directive, or if you would like us to mail you a form, call the Legal Services for Maine Elders Helpline at 1-800-750-5353 to speak to an attorney for free.

The Maine Hospital Association
You can find an Advance Directive form, instructions and additional resources on The Maine Hospital Association’s website by clicking here.

Disability Rights Maine 
If you have a mental illness or cognitive impairment and you are interested in learning more about making an Advance Directive or a Mental Health Advance Directive, the Disability Rights Maine can help you.  Click here for Disability Rights Maine's website.

1-800-452-1948

Disability Rights Maine
24 Stone Street, Suite 204
Augusta, ME  04330

Consumer's Toolkit for Health Care Advance Planning

Created by the American Bar Association, this Toolkit contains a variety of self-help worksheets, suggestions, and resources. There are 10 tools in all, each clearly labeled and user-friendly. The toolkit does not create a formal Advance Directive for you. Instead, it helps you do the much harder job of discovering, clarifying, and communicating what is important to you in the face of serious illness.

Get the toolkit at the American Bar Association website by clicking here.

This section will answer some basic questions about Powers of Attorney.

What is a Power of Attorney?

A Power of Attorney is a document that gives someone else (usually a trusted relative or friend) the authority to make certain decisions and act on your behalf. The person to whom you give these powers is called an "agent" or "attorney-in-fact." You are called the "principal."

The most common type of Power of Attorney is called a Durable Power of Attorney.  The word “durable” means that you created your Power of Attorney while you still had capacity, and that you intended for the document to remain in effect if you become “incapacitated.” You are “incapacitated” when you are too sick to make decisions for yourself or tell others what care you want.  Without the document expressly stating that it is a Durable Power of Attorney, the agent could lose their authority if you are later determined to be incapacitated.

Will I have to give up my rights to handle my own affairs?

No.  You can still manage your own affairs as long as you are willing and able.  Signing a Power of Attorney does not mean you can no longer make your own decisions.  Signing a Power of Attorney means that someone else can handle your affairs if you ask them to or when you cannot. It does not mean you give up any rights to your money, your property or your ability to make your own decisions.

If your agent does start handling your affairs, they must handle your money and property the way you want.    As long as you are capable of making decisions, the agent must follow your directions. The law says that your agent must do what is in your best interests. You can revoke the Power of Attorney at any time if you become unhappy with what the agent is doing so long as you still have capacity, meaning that you understand what you are doing.

If your agent is telling you that you can’t do something because they have “Power of Attorney over you,” they might not understand what it means to be your agent, or worse, might be abusing their authority as your agent.  REMEMBER: when you sign a Power of Attorney, you do not give up your rights and freedoms. If you are unhappy with your agent or want to revoke your Power of Attorney, call the Legal Services for Maine Elders Helpline to talk to an attorney for free and confidential help: 1-800-750-5353.

How do I get a Power of Attorney?

Talk to an attorney who can help you decide what’s best for you.  If you’re 60 or older, an attorney from Legal Services for Maine Elders can answer your questions and may be able to create a Power of Attorney for you.

Do not use a pre-printed form from an office supply store, a library, or the internet.  Some of these forms are not legal in Maine. Even if the form is legal, it may not give you the best legal protection.  Most pre-printed forms give agents the broadest possible authority with few limits.  Unfortunately, some agents abuse this authority and help themselves to your money and property.  An attorney can help draft a Power of Attorney that includes protections to avoid or reduce this risk.

If you have already used one of these forms to create a Power of Attorney, you might want to talk to an attorney.  An attorney can help you put some limitations on the agent’s authority if you decide it is a good idea.  Legal Services for Maine Elders can answer your questions for free.  Call the Legal Services for Maine Elders Helpline at 1-800-750-5353.

Does the court need to be involved?

No. The benefit of signing a Power of Attorney is that it gives someone else the legal power to do things for you when you can’t without having to go through any type of court process.  But, if you don’t have a Power of Attorney and something happens to you, your family will need to go to court and ask the court to give them the authority to handle your affairs.

How do I choose an agent?

The person you choose to be your agent or attorney-in-fact has to do certain things. The agent’s most important job is to always act in your best interest.

Although your agent is only supposed to do things that are in your best interest or for your benefit, your agent has great freedom to do as they please. Because your agent will have so much power, it is important to choose someone whom you trust. Before choosing an agent, ask yourself the following questions:

• Do I trust this person?
• Does this person understand my feelings and my point of view? Will they follow my wishes if I am ever incapacitated?
• Is this person willing to do the work and spend the time handling my affairs?
• Is this person available to visit me or to keep in contact by phone?
• Is this person knowledgeable about finances? If not, would this person seek the help of experts?
• Would I trust this person to handle my money if no one was watching them?

An agent must keep your money separate from their own. They must not be personally involved in or stand to profit by any action taken on your behalf.

An agent is not allowed to give away or transfer any of your money, personal property, or real estate to themself unless the Power of Attorney document says this is OK.  You and your agent must remember that certain gifts can affect your eligibility for long-term care benefits under Medicaid and can result in other serious consequences.  Because of these risks, it is especially important that people with property (such as a house or a camp), savings (such as bank accounts, stocks, bonds, certificates of deposit) and income (such as salary, pension, and Social Security benefits) get an attorney to help them make a Power of Attorney.

You should call Legal Services for Maine Elders to talk to an attorney about your situation.  It’s free and easy.  The attorney can help you decide what you should do. Call the Legal Services for Maine Elders Helpline: 1-800-750-5353.

Is the agent required to keep records?

Yes, unless you say otherwise in your Power of Attorney. The agent should keep separate and accurate records and make them available to you or anyone you choose.

Does an agent get paid?

This depends on the relationship of the agent and the principal and the duties involved. Normally, in family situations where the agent’s duties are simple, no payment is provided. However, if an agent has to run a business or manage complicated financial affairs, then payment is appropriate. Legally, no payment is required. If payment is intended, it should be clearly stated in the Power of Attorney document.

Where should I keep my Power of Attorney?

If your agent is going to start taking actions for you immediately, you should give them the Power of Attorney. You should keep a copy for your records. You may also choose to keep the original yourself if you do not want your agent to start conducting your business right away.  Keep the original in a safe place at home where it can be found if it is needed.

Can I create a Power of Attorney when I am mentally incapacitated?

No. In order to create a Power of Attorney, you must know and understand what you are doing. A person who is mentally incapacitated cannot make a Power of Attorney.

Can I create a Power of Attorney if I cannot sign my name?

Yes. If you are mentally capable but unable to sign your name, any mark made with the full intention that it be your signature is acceptable.

Can I revoke my Power of Attorney?

Yes. If for any reason you are no longer comfortable having your agent handle your affairs, you have the right to revoke the Power of Attorney at any time, as long as you are of sound mind. You might want an attorney to help you do this. Call the Legal Services for Maine Elders Helpline at 1-800-750-5353 to talk to an attorney for free.

 In order to revoke a Power of Attorney, you simply write or type a statement which includes the following:

• Name and date;
• You wish to revoke the Power of Attorney;
• Specify the date the original Power of Attorney was signed;
• Specify the person or persons named as your agent(s); and,
• Your signature.

Give copies of that statement to your agent and to any institutions and agencies that had notice of your Power of Attorney, such as banks and hospitals. After you revoke the Power of Attorney, you can 1) execute a new Power of Attorney naming someone else as your agent to handle your affairs; or 2) handle your own affairs.

Is my Power of Attorney effective after I die?

No. A Power of Attorney ends upon your death. Your will, or if you don’t have a will, Maine law, governs the handling of your estate. A Power of Attorney document is not a substitute for a will.

Are there alternatives to a Power of Attorney?

Yes, Guardianship and Conservatorship are alternatives. However, you lose many freedoms and rights under Guardianship or Conservatorship and only a probate court can appoint a Guardian or Conservator. If you want the court to be able to review your affairs, you might want to have this formal arrangement. However, managing your affairs by either alternative can be accomplished more easily and cheaply with a Power of Attorney.

Can I just add a relative’s name to my bank accounts instead?

This is very risky. When you put someone’s name on your bank account, that person becomes the co-owner of all the money in the account.  This means the other person does not need your permission to withdraw some, or all of the money, regardless of who deposited it.  It also means that if the other person runs into money problems or gets a divorce, then you risk losing some, or all of the money to their creditors or in the divorce settlement.  Sometimes co-owners abuse the trust placed in them and take all the money.  Also, adding someone to your bank account can impact your ability to get MaineCare to cover your long term care costs. This is why joint accounts are very risky. 

If you are still interested in having a joint account, you should talk to your bank.  It might be able to offer a safer alternative to a joint bank account that accomplishes what you want.

If you already have a joint account and you think the co-owner is taking money when they shouldn’t, you should get an attorney to help.  Or, if you are unsure as to whether you should add someone's name to your account, you should talk to an attorney. Call the Legal Services for Maine Elders Helpline at 1-800-750-5353 to talk to an attorney for free. 

Resources

Legal Services for Maine Elders 
If you are a Maine resident who is 60 or older and you want help making or revoking a Power of Attorney, call the Legal Services for Maine Elders Helpline at 1-800-750-5353 to talk to an attorney for free and confidential help.

Maine Office of Aging & Disability Services, Department of Health & Human Services
The Office of Aging and Disability Services is a great resource for older people in the process of planning for their future. 

Although it is difficult to think about your death, planning for it can be very helpful for your loved ones. This section will answer some basic questions about funeral plans.

What funeral plans should I consider making?

There are a number of decisions you can make when pre-planning your funeral.  The first step is to decide what you want to have happen to your body after your death.  Whatever decision you make will help guide you through the rest of your planning. 

Once you have decided what you want to have happen with your remains, you should consider if you want a ceremony and if so, what kind of ceremony you would like.  If that ceremony includes the use of a funeral home and/or cemetery, it is important to consider your options.  You should shop around and find a funeral home that fits your needs and gives you the best value.  Start by researching what is available in your area and go visit the funeral homes. It is a good idea to bring someone with you when you visit, and do not sign anything on the first visit! 

Funeral directors are required by federal regulation to provide you with specific pricing information upon request.  Ask the funeral director to give you a “General Price List.”  You may be surprised to find big price differences, so compare these lists and choose the best option for you. 

Whatever you decide, keep a copy of all your paperwork and write down any wishes you have about specific things.  Share this information with your spouse or a close friend or relative so they can make sure your plans are put into effect.  You can include your funeral and burial plans in your estate plan and can direct your Personal Representative to act in accordance with your wishes.  For more information on Wills and Personal Representatives, see the section of this chapter titled “Wills”.

What is a Mortuary Trust?

A Mortuary Trust, or Pre-Paid Funeral Contract (also called a “Pre-Need Funeral Arrangement”) is an agreement between a purchaser (payor) and a funeral home that acts as a trustee (keeping the funds safe for their final use).  The purchaser may or may not be the person who receives the funeral goods and services at death (beneficiary).

A Pre-Paid Funeral Contract can save you money if certain prices are guaranteed. Some prices may not be guaranteed, so read the Contract carefully. Ask questions if you are unsure about any part of the contract.

There are laws that apply to Mortuary Trusts.  These laws are in place to protect the purchaser.  Even so, it is very important that you read the entire contract before you sign it. Better yet, before you sign, have the funeral home fill in the guaranteed prices. Then, take the contract home to look it over.

Some advantages of a Mortuary Trust are:

• Many prices are guaranteed;
• Making decisions ahead of time with a clear head may help you avoid excessive expenses that come with high-pressure sales talk;
• A Mortuary Trust is an exempt asset under MaineCare up to a certain dollar limit. This means the money in the Trust may not count in determining Mainecare eligibility.

Some disadvantages of a Mortuary Trust are:

• They are often not revocable (you can’t get your money back).  However, you can transfer the Trust to another funeral home;
• You may not be able to transfer the Trust to another state.  If the beneficiary moves and dies in another state, additional expense may be added;
• If you decide to change from a higher cost burial to a lower cost cremation, you will probably lose money by being “locked into” the earlier Contract.

What if I want to be an organ donor?

Any Maine resident aged 16 years or older may become an organ donor by adding their name to the organ donor registry.  Becoming an organ donor requires only a few simple steps and can be completed online, or if you prefer, you can visit you local Bureau of Motor Vehicles branch office to sign up in person.  To join the registry and become an organ donor, visit the organ donor registry by clicking here.

Resources

Funerals: Consumer Rights Under the Funeral Rule
For a great overview of the entire funeral and burial planning process, including a summary of legal protections available to you, visit the Federal Trade Commission’s website and review the article “Shopping for Funeral Services,” available by clicking here.

MaineBureau of Motor Vehicles
For more information about organ and tissue donation in Maine, visit the Maine Bureau of Motor Vehicles website available by clicking here.

To join the registry and become an organ donor, visit the organ donor registry available by clicking here.

Or visit your local Bureau of Motor Vehicles Branch office and complete the forms in person.

There might come a time where you are suffering from an illness or disability and you are no longer able to adequately care for yourself, your money, or your property. Close family members or friends might be worried about your well-being. If you have not planned ahead for this event by creating a Power of Attorney or naming a person to act as Guardian then your friends or family might decide that the best way to help you is to ask the court to appoint a Conservator or Guardian. This section will answer some basic questions about Conservatorship and Guardianship.

What is Conservatorship?

A Conservatorship is a legal relationship where one person (the Conservator) is appointed by the probate court to manage the money and property of another person (the protected person) if that person is unable to do so due to illness or disability. The purpose of a Conservator is to make sure that your property and finances are protected and used only in your best interest. Unlike a Guardian, a Conservator only has authority over your money and finances, not your personal life.

Your Conservator is required to use your money to provide for your needs. They may not use your money for their benefit, and must keep your money separate from their own. If you have a Conservator who is not also the Guardian, the Conservator must consult with the Guardian regarding your needs and how best to spend your money.

Do I need a Conservator?

If you are having a hard time managing your money and property due to illness or disability, your family or close friends might worry about your well-being. If you do not have an agent under a Power of Attorney, they might decide to ask the probate court to appoint a Conservator to help you. When you have a Conservator, you lose certain rights to decide what will happen to your money and property. You can avoid losing these rights by planning ahead and creating a Power of Attorney. For more information on how to make a Power of Attorney, see the section of this chapter titled: “Powers of Attorney.” If someone is trying to become your Conservator and you don’t think you need one, you should get an attorney to help you. Call the Legal Services for Maine Elders Helpline at 1-800-750-5353 to talk to an attorney for free.

Who will be the Conservator?

The court will appoint someone to act as Conservator for you. Generally, the judge will try and find a close relative or friend who knows you well and who might have a good idea of how you would want your money managed. If that is not an option, a caseworker working through a state agency may be appointed.

Certain people may not be your Conservator. For example, if you live in a nursing home or residential facility, the owner may not be appointed Conservator unless they are also your relative. The same is true for any administrator or employee of your nursing home or residential facility.

What authority will the Conservator have over me?

The Conservator will be responsible for managing your money and finances. They have broad powers regarding how to do this. Primarily, the Conservator must make sure that money is available for your care and support and also must file taxes on your behalf. Any additional money must be invested or managed in a way that is in your best interest and in keeping with how you would want your money spent. This means that the Conservator can make investments with your money, buy property with your money, and in some cases, make gifts or donations to charity.

The Conservator MAY NOT use your money for their benefit and may not draft a Will for you.

What can I do to avoid having a court appointed Conservator?

If you wish to avoid having a court-appointed Conservator, you can plan ahead and choose the person you wish to manage your finances. You can name this person as your agent or attorney-in-fact in your Power of Attorney. For more information on how to make a Power of Attorney, see the section of this chapter titled “Powers of Attorney.”

REMEMBER: If someone is trying to become your Conservator and you don’t think you need one, you should get an attorney to help you. Call the Legal Services for Maine Elders Helpline at 1-800-750-5353 to talk to an attorney for free.

What is Guardianship?

A Guardianship is a legal relationship where one person (the Guardian) is appointed by the probate court to manage the personal affairs of another person (the ward) who the court has deemed incapacitated. If a Conservator has not been appointed, a Guardian might also manage a person's financial affairs.

A Guardianship is unlike an Advance Directive or a Power of Attorney because in those instances, you chose to give authority to others; a Guardianship can be created over your objection, if the court finds that you are incapacitated and need someone to make decisions for you.

REMEMBER: If someone is trying to obtain a Guardianship for you, you have the right to an attorney. If you do not think that a Guardianship is appropriate, you need an attorney to help you. Call the Legal Services for Maine Elders Helpline at 1-800-750-5353 to get free legal help.

Do I need a Guardian?

If someone is trying to obtain a Guardianship over you, the probate court will decide whether or not you are considered incapacitated. The court will grant a Guardianship only if you are unable to make decisions for your own well-being and safety.

Once a Guardianship has been granted, you lose certain individual freedoms and rights. The Guardianship will not be removed unless you can prove to the court that:

1. It is no longer needed; or
    
2. That the Guardian is not acting in your best interests.

REMEMBER: If someone is trying to obtain a Guardianship for you, you have the right to an attorney. If you do not believe that a Guardianship is appropriate, you need an attorney to help you. Call Legal Services for Maine Elders to talk to an attorney for free. Call the Legal Services for Maine Elders Helpline: 1-800-750-5353.

Who will be the Guardian?

If the court determines that you need a Guardian and you have not already chosen someone to hold this role in your Power of Attorney or your Advanced Directive, the court will appoint someone. The court will appoint a Guardian in the following order of preference:

• The person or organization nominated in writing by the person in need of a Guardian;
• The spouse;
• The domestic partner;
• An adult child;
• A parent, including a person nominated by Will or other writing signed by a deceased parent;
• A person who served as Guardian, Permanency Guardian, or Legal Custodian of the incapacitated person when the incapacitated person was a child, if the person was actively serving in that capacity immediately before the incapacitated person's 18th birthday;
• Any relative with whom the person in need of a Guardian has lived with for more than six months before the papers were filed in Court to have a Guardian appointed;
• A person nominated by someone who is caring for the incapacitated person or paying benefits to them.

What authority would a Guardian have over me?

A Guardian has similar powers and authority over you that a parent has over a minor child. A Guardian can make decisions about how you spend your money, where you live, what activities you participate in, and unless addressed by an Advanced Directive, what medical care you receive. If the court appoints a Guardian for you, your individual rights and freedoms become greatly limited.

REMEMBER: If someone is trying to obtain Guardianship of you, you have the right to an attorney. If you do not believe that a Guardianship is appropriate, you need an attorney to help you. Call Legal Services for Maine Elders to talk to an attorney for free. Call the Legal Services for Maine Elders Helpline: 1-800-750-5353.

Are there different types of Guardianship?

Yes, in Maine there are two types: full or limited Guardianship. The type of Guardianship that the court will choose is based on the request for Guardianship, your mental state and your specific needs.

If the court assigns a full Guardianship, the Guardian has decision-making control over all areas of your life. This is appropriate when:

• You are unable to make or communicate responsible decisions for yourself;
• A full Guardianship is necessary to ensure that continuing care is provided for you; and,
• Friends, staff, and family members involved in the decision have researched and ruled out less restrictive options.

If the court assigns a limited Guardianship, the Guardian has control over some, but not all areas of an individual’s life.

What can I do to avoid having the court choose a Guardian for me?

You can plan for incapacitation by naming the individual you would want to be appointed Guardian for you, should the need arise. You can name this person in your Power of Attorney documents, or in your Advance Directive. To learn more about how to get a Power of Attorney or Advance Directive, see those sections in this chapter.

REMEMBER: If someone is trying to obtain Guardianship of you, you have the right to an attorney. If you do not believe that a Guardianship is appropriate, you need an attorney to help you. Call Legal Services for Maine Elders to talk to an attorney for free. Call the Legal Services for Maine Elders Helpline: 1-800-750-5353.

Resources

Legal Services for Maine Elders 
If you are a Maine resident who is 60 or older and someone is trying to become your Conservator or Guardian and you don’t think you need one, call the Legal Services for Maine Elders Helpline at 1-800-750-5353 to speak to an attorney for free.

Maine Office of Aging & Disability Services, Department of Health & Human Services
The Office of Aging and Disability Services is a great resource for older people in the process of planning for their future. 

Ten Legal Tips For Caregivers

Share financial information with your spouse now to avoid problems later

Thinking Ahead Roadmap:  A Guide for Keeping Your Money Safe As You Age