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John Brautigam is executive director of Legal Services for Maine Elders. James Haddow is a Maine attorney in private practice who has handled contested guardianships and other probate matters for decades.
Probate court judges address some of the most personal and consequential legal matters for Mainers: Who can make life choices for you if you cannot, who can manage your money, and what happens to a family home after a death. Most of us hope never to need to have a judge answer such questions. Many of us will.
Consider an older Mainer whose memory is failing. One child is trying to keep her safe at home. Another worries that bills are going unpaid and that she is being pressured to sign documents she does not understand. A guardianship case is filed so the court can decide whether someone should be appointed to make decisions on her behalf. In a system built for speedy, consistent, and impartial justice, the court would promptly schedule a hearing, appoint counsel to represent her if appropriate, and the probate judge would make a clear unbiased decision that protects her rights while addressing her urgent needs.
Unfortunately, while such decisions may be clear, there is no guarantee that they are free from judicial bias.
Maine still runs probate as it did in 1855: as 16 separate county courts, each with its own probate judge. Probate judgeships are generally part-time and filled by county-based elections. All other Maine judges are appointed subject to a vigorous screening process that involves a public legislative hearing and state Senate confirmation. And they also receive required judicial training that is not available to probate judges.
Probate judges are also exempt from the judicial ethical rules that prohibit all other judges from practicing law. Even when everyone involved acts in good faith, this structure can create the appearance of bias or conflicts and can undermine public confidence in judicial decisions. The roles of attorney and judge are vastly different and inconsistent: one must fulfill a duty to clients, and the other is strictly bound to serve the public interest.
Guardianship and conservatorship cases are especially high stakes. They can take away a person’s authority over where they live, what care they receive, and how their money is spent. In many cases, respondents appear without counsel, even when appointment may be required or available.
Maine has known for decades that the probate structure needs modernization. In 1967, Maine voters approved a constitutional amendment that directed the Legislature to replace the county-based probate system with a different system with full-time judges. Multiple studies and commissions have returned to the same conclusion: probate adjudication should be brought into the state judicial branch, with full-time judges, consistent procedures, and the administrative support that comes with being part of a unified court system.
This does not mean scrapping what works. Registers of probate perform important local functions and over the years probate code changes have given them increased powers. They now may fully process informal cases like the probate of an uncontested will without need of a judge’s involvement. Reform should preserve those roles.
The change that matters most addresses who decides cases that determine rights and responsibilities. Probate judging should operate like other judging in Maine: full-time, accountable, and insulated from the pressures that come with elections and private practice.
We are two attorneys who understand the high stakes of probate matters from different vantage points: legal aid and private practice. We have seen families arrive in crisis, confused by process and frightened by delay. We have also seen how a well-run hearing, with clear rules and meaningful representation, can protect a vulnerable person while reducing conflict among relatives. Updating this structure is desperately needed to ensure a fair, timely, and consistent process.
A bill this session, LD 1766, would move probate adjudication into the judicial branch and create full-time judgeships. This change is long overdue. Maine’s probate courts should be modern courts, not a patchwork where lawyers serve as judges in their spare time.
Equal justice under the law is not a slogan. In probate, it is the difference between dignity and chaos for people at the most vulnerable moments of their lives.
