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Conservatorship of Jackson
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Decision: 	1998 ME 256
Docket:	Pen-97-665
Argued:	November 2, 1998
Decided:	December 4, 1998




	[¶1]  	The Department of Human Services (DHS) and William Jackson
appeal from a decision of the Penobscot County Probate Court (Woodcock, J.)
denying DHS's petition to terminate its conservatorship of Raynold Jackson
Sr.; disallowing DHS's accounting; and rescinding a deed transferred by DHS
on behalf of Raynold Jackson Sr. to William.  We vacate the decision.
	[¶2]  	DHS was appointed public guardian of Raynold Jackson Sr. in
October 1991.  Jackson Sr., who was seventy-six years old, lived at a nursing
home in Bar Harbor.  He was unable to walk and nearly blind.  The left side
of his body was paralyzed due to a stroke, and he suffered from dizzy spells. 
He wanted to return to his home in Olamon, but he could no longer care for
himself.  His family was divided over the care he should receive.
	[¶3]  	Before his admission to the nursing home, Jackson Sr. lived in
his home in Olamon with his disabled son, William.  Jackson Sr.'s only
significant asset was the home, worth $22,400.  After Jackson Sr. moved to
the nursing home, William continued to live at the Olamon property.  Due to
his disability, William's only income was from Supplemental Security
	[¶4]  	Jackson Sr. was unable to pay for the maintenance of his home,
including the taxes.  His only income was a monthly Social Security check,
and all but $40 went toward the cost of the nursing care, which was
supplemented by Medicaid funds.  Because Jackson Sr. could not afford to
keep his home and because he was unable to make decisions regarding the
disposition of this property, DHS sought to become his conservator. 
	[¶5]  	With the petition for appointment of conservator, DHS filed a
conservatorship plan stating that the major asset of Jackson Sr.'s estate was
the Olamon property and that a conservator was needed to make decisions
about the disposition of it.  Both the petition and the plan were served on all
seven of Jackson Sr.'s children.  The Probate Court held a hearing on the
conservatorship petition in June 1992.  A DHS caseworker testified that
because Jackson Sr. would be unable to return to his home, DHS intended to
deed the Olamon property to William, retaining a life estate for Jackson Sr. 
The caseworker and Jackson Sr.'s attorney confirmed that it was Jackson
Sr.'s desire that the home go to William.  Of the children, Steven Jackson
was the only one who appeared at the hearing, and he said that he did not
object to the plan.  On July 14, 1992, the Probate Court appointed DHS as
Jackson Sr.'s public conservator without limitation.
	[¶6]  	After consulting with Medicaid officials, DHS decided that
retaining a life estate for Jackson Sr. could make him ineligible for Medicaid
because it would have value as an asset.  Jackson Sr. could retain only $2,000
in assets and still remain eligible for Medicaid benefits, which constituted a
substantial part of the nursing home care.  DHS discussed alternatives with
Medicaid officials.  Selling the house outright would make Jackson Sr.
ineligible for Medicaid, and he would have to use the proceeds from the sale
for his nursing home care until he had spent all but $2,000.  Renting the
house was not a viable option because the rental income would be counted as
income to be applied to the nursing home care and there would be no
income from which the expenses of the house could be paid.  Medicaid
officials acknowledged that the regulations permit a conveyance to a
disabled adult child without counting the value of the asset conveyed against
the grantor.  In December 1992, DHS, as conservator, transferred the
Olamon property to William.  DHS conveyed the property to William without
reservation because it was Jackson Sr.'s desire that the home go to William;
because Jackson Sr.'s health was such that he could not return to the home;
and because Medicaid eligibility would be compromised if Jackson Sr.
retained an interest in the home.  Jackson Sr. died in October 1993. 
William continued to live on the Olamon property, and in June 1995, he sold
an acre of it.
	[¶7]  	In early 1997, DHS filed its First and Final Account, Inventory,
and Petition for Termination of Conservatorship regarding Jackson Sr.'s
estate.  Prior to the hearing, two of the children, Bruce Jackson and Raynold
Jackson Jr., filed written objections to DHS's petition and accounting,
alleging only that DHS failed to account for their father's interest in
property located in Bradley.{1}  They later filed objections to the conveyance
to William as an unauthorized gift.
	[¶8]  	At the hearing on April 29, 1997, five of Jackson Sr.'s children
appeared but none presented evidence.  Bruce Jackson stated that none of
the heirs wanted to prevent William from living in the house, but someone
else should have been appointed to watch over the property.  The Probate
Court denied the request to terminate the conservatorship, disallowed the
accounting, and declared the deed to William void.  The court concluded
that DHS exceeded its authority by conveying the Olamon property to
William as a gift.  In response to post-judgment motions, the Probate Court
reaffirmed its decision.  DHS and William appealed, and four of the heirs
responded to the appeal.	
	[¶9]  	DHS argues that the heirs are barred by laches from objecting to
the conveyance of the Olamon property to William.  Laches is not merely
delay, but delay that is prejudicial to the adverse party.  Dow v. Adams, 1998
ME 48, ¶ 13, n. 3, 707 A.2d 793, 796 n. 3.  DHS contends that the heirs'
delay in objecting to the conveyance meant that it might have to defend an
action for surcharge by the heirs or possibly defend an action for damages
from William.  These possible lawsuits, however, were equally likely on the
day DHS conveyed the property to William as they are today.  It is the
authority for the conveyance that determines whether DHS would be liable. 
The delay in objecting to the conveyance has no bearing on the potential
liability of DHS.  DHS has failed to demonstrate that any delay by the heirs
prejudiced DHS.  Although William may have been prejudiced by the delay
because he sold a portion of the property in reliance on a valid deed, he
does not join DHS in arguing this point on appeal.  We conclude that laches
does not bar the objection of the heirs.
	[¶10]  In denying the petition to terminate the conservatorship and
disallowing the accounting, the Probate Court concluded DHS exceeded its
authority as conservator by transferring the Olamon property as a gift.  We
conclude that DHS had the authority to convey the Olamon home to William. 
The authority for the conveyance of the property is found in the broad
statutory powers of a conservator to expend or distribute the income and
principal of an estate for the care and benefit of the protected person.  18-A
M.R.S.A. § 5-425(a)(1998).  In acting for the protected person's care and
benefit, the conservator is to have due regard for other funds and sources
that can be used to support the protected person.  Id. at § 5-425(a)(2).  In
this situation, Medicaid eligibility was of primary concern.  Further, Jackson
Sr. himself wanted the property to go to William, a fact the conservator is
required to consider pursuant to 18-A M.R.S.A. § 5-427 (1998).
	[¶11]  The authority for the conveyance also comes from the fact that
the appointment of DHS as conservator was without limitation and with the
knowledge of the court that the purpose of the conservatorship was to
dispose of the home.  The conservatorship plan states that the reason a
conservator is needed is to make a decision about the disposition of the
property.  The DHS agent testified that DHS intended to convey the
property to William subject to a life estate in Jackson Sr.  
	[¶12]  The heirs argue that the conveyance to William was in violation
of either section 5­p;408(4) or 5-425(b) of the Probate Code.  Section
5­p;408(4) provides that the court, directly or through a conservator, has the
authority to make a gift which exceeds 20% of a year's income of the estate,
after notice and hearing, if the gift is in the protected person's best interest
and the person has consented or is incapable of consenting.  18­p;A M.R.S.A.
§ 5-408(4)(1998).  Section 5-425(b) is similar.  Assuming, without deciding
that the conveyance to William was a gift, we conclude that when the
Probate Court appointed DHS conservator without limitation, it authorized
DHS to convey the estate.  Although DHS did not make the exact conveyance
it proposed and instead conveyed the entire estate to William,  for all intents
and purposes the conveyance was as planned in light of Jackson Sr.'s death
less than a year after the conveyance and his inability during his lifetime to
return home.  DHS was warranted in conveying the property without the life
estate when it learned from Medicaid officials that the value of a life estate
would have a bearing on Jackson Sr.'s Medicaid eligibility.  
	[¶13]  In Estate of Paine, 609 A.2d 1150, 1152 (Me. 1992) we stated: 
"where . . . there are no restrictions stated in the appointment, the
conservator has broad powers of management that may be exercised without
court order, including the ability to distribute and end the arrangement
without court order if he can meet the terms of the Code."  In this case the
terms of the Code were met because the court knew that the purpose of the
conservatorship was the disposition of the home.  The conveyance achieved
the purpose for which DHS was appointed.  
	The entry is:
Judgment vacated.  Remanded for further
proceedings consistent with this opinion.

Attorneys for appellants: Andrew Ketterer, Attorney General Carmen L. Coulombe, Asst. Atty. Gen., (orally) 6 State House Station Augusta, ME 04333-0006 (for Dept. of Human Services) Robert L. Miller, Esq., (orally) Spencer, Zmistowski & Miller P O Box 467 Old Town, ME 04468-0467 (for William Jackson) Attorney for appellees: Julio V. DeSanctis, III, Esq., (orally) Downeast Law Associates, P.A. P O Box 190 Orrington, ME 04474 (for Rita Freese and Bruce, Raynold Jr., & Richard Jackson)
FOOTNOTES******************************** {1} . The DHS financial analyst testified that DHS investigated the claim to property in Bradley, but found that Jackson Sr. was not a property holder there. The Probate Court made no findings on this issue, and it has not been raised on appeal.