III. MATERIAL Y MÉTODOS
1. Métodos
1.10. Registros electrofisiológicos mediante la técnica de patch-clamp planar
§5-401. PROTECTIVE PROCEEDINGS
Upon petition and after notice and hearing in accordance with the provisions of this Part, the court may appoint a conservator, coconservator or make other protective order for cause as follows. [2003, c. 323, §2 (AMD).]
(1). Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a minor if the court determines that a minor owns money or property that requires management or protection which cannot otherwise be provided, has or may have business affairs which may be jeopardized or prevented by his minority, or that funds are needed for his support and education and that protection is necessary or desirable to obtain or provide funds.
[ 1979, c. 540, §1 (NEW) .]
(2). Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a person if the court determines: by clear and convincing evidence that the person is unable to manage the person's property and affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance; and by a preponderance of the evidence that the person has property that will be wasted or dissipated unless proper management is provided or that funds are needed for the support, care and welfare of the person or those entitled to be supported by the person and that protection is necessary or desirable to obtain or provide funds. If the allegedly incapacitated person files voluntary written consent to the appointment of a conservator with the court or appears in court and consents to the appointment, unless the court finds the consent suspect, the court may appoint a conservator or coconservator as requested upon a finding by a preponderance of the evidence that the person is unable to manage the person's property and affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power or disappearance.
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§5-402. Protective proceedings; jurisdiction of affairs of protected persons 12.11.2015GeneratedFor the purposes of this subsection, voluntary written consent is valid only if the consent was obtained by a visitor, a guardian ad litem or an attorney representing the allegedly incapacitated person and the allegedly incapacitated person gave the consent outside the presence of the person or persons seeking conservatorship.
[ 2009, c. 349, §7 (AMD) .]
SECTION HISTORY
1979, c. 540, §1 (NEW). 2003, c. 323, §2 (AMD). 2009, c. 349, §7 (AMD).
§5-402. PROTECTIVE PROCEEDINGS; JURISDICTION OF AFFAIRS OF
PROTECTED PERSONS
After the service of notice in a proceeding seeking the appointment of a conservator or other protective order and until termination of the proceeding, the court in which the petition is filed has: [1979, c. 540, §1 (NEW).]
(1). Exclusive jurisdiction to determine the need for a conservator or other protective order until the proceedings are terminated;
[ 1979, c. 540, §1 (NEW) .]
(2). Exclusive jurisdiction to determine how the estate of the protected person which is subject to the laws of this State shall be managed, expended or distributed to or for the use of the protected person or any of his dependents;
[ 1979, c. 540, §1 (NEW) .]
(3). Concurrent jurisdiction to determine the validity of claims against the person or estate of the protected person and his title to any property or claim.
[ 1979, c. 540, §1 (NEW) .]
SECTION HISTORY
1979, c. 540, §1 (NEW).
§5-403. VENUE
Venue for proceedings under this Part is: [1979, c. 540, §1 (NEW).]
(1). In the place in this State where the person to be protected resides whether or not a guardian has been appointed in another place; or
[ 1979, c. 540, §1 (NEW) .]
(2). If the person to be protected does not reside in this State, in any place where he has property.
[ 1979, c. 540, §1 (NEW) .]
SECTION HISTORY
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12.11.2015 §5-405. Notice
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§5-404. ORIGINAL PETITION FOR APPOINTMENT OR PROTECTIVE ORDER
(a). The person to be protected, any person who is interested in the estate, affairs or welfare of the person to be protected including the parent, guardian, custodian or domestic partner of the person to be protected or any person who would be adversely affected by lack of effective management of the property and affairs of the person to be protected may petition for the appointment of a conservator or for other appropriate protective order.
[ 2003, c. 672, §13 (AMD) .]
(b). The petition shall contain such information and be in such form as the Supreme Judicial Court shall by rule provide.
[ 1979, c. 540, §1 (NEW) .]
(c). A petition for a protective order made under oath may be used to initiate court consideration, accounting and remediation of the actions of any individual responsible for the management of the property or affairs of another. In the case of an emergency, the petition must be given priority scheduling by the court.
(1). The petition must include the following information and may include other information required by rule:
(i) Name, address and telephone number of the petitioner; (ii) Name, address and telephone number of the principal;
(iii) Name, address and telephone number of the person with actual or apparent authority to manage the property or affairs of the principal;
(iv) Facts concerning the extent and nature of the principal's inability to manage the principal's property or affairs effectively and any facts supporting an allegation that an emergency exists; (v) Facts concerning the extent and nature of the actual or apparent agent's lack of management of the principal's property or affairs. If applicable, facts describing how the petitioner has already been adversely affected by the lack of management of the principal's property or affairs; and
(vi) Names, addresses and relationships of all persons who are required to receive notice of the petition. [2005, c. 283, §1 (NEW).]
(2). This subsection does not limit any other purpose for the use of a petition for a protective order or any other remedy available to the court. [2005, c. 283, §1 (NEW).]
[ 2005, c. 283, §1 (NEW) .]
SECTION HISTORY
1979, c. 540, §1 (NEW). 2003, c. 672, §13 (AMD). 2005, c. 283, §1 (AMD).
§5-405. NOTICE
(a). On a petition for appointment of a conservator or other protective order or on a petition under section 5-416, the person to be protected or the protected person must be served personally with notice of the proceeding at least 14 days before the date of the hearing. Waiver by the person to be protected or the protected person is not effective unless he attends the hearing or, unless minority is the reason for the proceeding, waiver is confirmed in an interview with the visitor. The court may order that the petition and hearing notice be served by the visitor.
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§5-406. Protective proceedings; request for notice; interested person 12.11.2015Generated(a-1). The spouse or domestic partner and all adult children of the person to be protected or the protected person or, if none, the person's parents or closest adult relative or, if none, a friend must be given notice of the proceeding. Notice under this subsection must be served by certified mail, restricted delivery and return receipt requested, at least 14 days before the date of the hearing.
If the certified mail to the spouse or domestic partner is not delivered and that person can be found within the State, notice must be served personally on that person.
If the certified mail to the spouse or domestic partner is not delivered, that person can not be found within the State and the certified mail is not delivered to any adult children, notice must be served personally on an adult child who can be found within the State.
If notice is served on the person's parents or closest adult relative and the certified mail is not delivered, notice must be served personally on a parent or the adult relative if a parent or adult relative can be found within the State.
If notice is served on the person's friend and the certified mail is not delivered, notice must be served personally on the friend if the friend can be found within the State.
Except as otherwise provided in this subsection and subsection (a), notice must be given as prescribed by court rule under section 1-401.
[ 2003, c. 672, §14 (AMD) .]
(b). Notice of a petition for appointment of a conservator or other initial protective order, and of any subsequent hearing, must be given to any person who has filed a request for notice under section 5-406 and to interested persons and other persons as the court may direct. Except as otherwise provided in subsections (a) and (a-1), notice shall be given as prescribed by court rule under section 1-401.
[ 1985, c. 656, §5 (AMD) .]
SECTION HISTORY
1979, c. 540, §1 (NEW). 1985, c. 440, §§7,13 (AMD). 1985, c. 656, §§3-5 (AMD). 2003, c. 672, §14 (AMD).
§5-406. PROTECTIVE PROCEEDINGS; REQUEST FOR NOTICE; INTERESTED
PERSON
Any interested person who desires to receive notice of any filing, hearing or order in a protective proceeding may file a demand for notice with the court, shall thereupon have notice of such demand given to any conservator who has been appointed, and shall thereafter receive notice of every filing, notice or order to which the demand relates, in such manner and form as the Supreme Judicial Court shall by rule provide. Any governmental agency paying or planning to pay benefits to the person to be protected is an interested person in protective proceedings. [1979, c. 540, §1 (NEW).]
SECTION HISTORY
1979, c. 540, §1 (NEW).
§5-407. PROCEDURE CONCERNING HEARING AND ORDER ON ORIGINAL
PETITION
(a). Upon receipt of a petition for appointment of a conservator or other protective order because of minority, the court shall set a date for hearing on the matters alleged in the petition. If, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, it
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12.11.2015 §5-407. Procedure concerning hearing and order on original petition
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may appoint an attorney to represent the minor, giving consideration to the choice of the minor if 14 years of age or older. A lawyer appointed by the court to represent a minor has the powers and duties of a guardian ad litem.
[ 1979, c. 540, §1 (NEW) .]
(b). Upon receipt of a petition for appointment of a conservator or other protective order for reasons other than minority, the court shall set a date for hearing. Unless the person to be protected is already represented by an attorney, the court shall appoint one or more of the following: a visitor; a guardian ad litem or a lawyer to represent the person to be protected in the proceedings. If it comes to the court's attention that the person to be protected wishes to contest any aspect of the proceeding or to seek any limitation of the proposed conservator's powers, the court shall appoint an attorney to represent the person to be protected. The cost of the appointment of the visitor, guardian ad litem or attorney must be paid from the estate of the person to be protected if the court is satisfied sufficient funds are available. If the alleged disability is physical illness or disability, chronic use of drugs, or chronic intoxication, the court may direct that the person to be protected be examined by a physician acceptable to the court, preferably a physician who is not connected with any institution in which the person is a patient or is detained. If the alleged disability is mental illness or mental deficiency, the court may direct that the person to be protected be examined by a physician or by a licensed psychologist acceptable to the court; preferably the physician or psychologist shall not be connected with any institution in which the person is a patient or is detained. The physician or psychologist shall submit a report in writing to the court, providing diagnoses, a description of the person's actual mental and functional limitations and prognoses.
[ 1995, c. 203, §4 (AMD) .]
(b-1). If appointed, the visitor or guardian ad litem shall interview the person to be protected and the person who is seeking appointment as conservator. The visitor or guardian ad litem shall submit a report in writing to the court. The visitor or guardian ad litem shall explain the meaning and possible consequences of the requested appointment to the person to be protected and inquire if the person wishes to attend the hearing, to contest any aspect of the proceedings or to seek any limitation of the proposed conservator's powers. If the visitor or guardian ad litem determines that the person wants to contest any issue or seek a limited appointment and that the person is not already represented by an attorney, the visitor or guardian ad litem shall so indicate in the written report to the court. The person to be protected is entitled to be present at the hearing in person and to see and hear all evidence bearing upon the person's condition. The person to be protected is entitled to be represented by counsel, to present evidence, to cross-examine witnesses, including the physician, the visitor and the guardian ad litem. The issue may be determined at a closed hearing if the person to be protected or the person's counsel so requests.
[ 1995, c. 203, §5 (AMD) .]
(b-2). The person nominated to serve as conservator shall file a plan which, where relevant and to the extent pertinent information is reasonably available to the nominee, shall include, but not be limited to, how the protected person's financial needs will be met, as well as a plan for the management of the protected person's estate.
[ 1985, c. 440, §§ 9, 13 (NEW) .]
(c). After hearing, upon finding that a basis for the appointment of a conservator or other protective order has been established, the court shall make an appointment or other appropriate protective order.
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§5-408. Permissible court orders 12.11.2015Generated(d). Except as otherwise provided by law, all reports and plans required by this section shall be submitted to the court and all parties of record at least 10 days before any hearing on the petition.
[ 1985, c. 440, §§ 10, 13 (NEW) .]
(e). When there has been an allegation of abuse, neglect or exploitation of an allegedly incapacitated person in a petition or other papers filed with the court, the court may hear the testimony of the allegedly incapacitated person in chambers with only the guardian ad litem and counsel present if the statements made are a matter of record.
[ 1989, c. 858, §3 (NEW) .]
SECTION HISTORY
1979, c. 540, §1 (NEW). 1983, c. 241, §2 (AMD). 1985, c. 440, §§8-10,13 (AMD). 1989, c. 858, §3 (AMD). 1993, c. 652, §§4,5 (AMD). 1995, c. 203, §§4,5 (AMD).
§5-408. PERMISSIBLE COURT ORDERS
The court shall exercise the authority conferred in Parts 4 and 6 to encourage the development of maximum self reliance and independence of the protected person and make protective orders only to the extent necessitated by the protected person's actual mental and adaptive limitations and other conditions warranting the procedure. [1985, c. 440, §§11, 13 (NEW).]
The court has the following powers which may be exercised directly or through a conservator in respect to the estate and affairs of protected persons; [1979, c. 540, §1 (NEW).]
(1). While a petition for appointment of a conservator or other protective order is pending and after preliminary hearing and without notice to others, the court has power to preserve and apply the property of the person to be protected as may be required for the person's benefit or the benefit of the person's dependents, in accordance with the procedures set forth in section 5-408-A.
[ 1993, c. 652, §6 (AMD) .]
(2). After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a minor without other disability, the court has all those powers over the estate and affairs of the minor which are or might be necessary for the best interests of the minor, his family and members of his household.
[ 1979, c. 540, §1 (NEW) .]
(3). After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a person for reasons other than minority, the court has, for the benefit of the person and members of his household, all the powers over his estate and affairs which he could exercise if present and not under disability, except the power to make a will. These powers include, but are not limited to power to make gifts, to convey or release his contingent and expectant interests in property including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety, to exercise or release his powers as trustee, personal representative, custodian for minors, conservator, or donee of a power of appointment, to enter into contracts, to create revocable or irrevocable trusts of property of the estate which may extend beyond his disability or life, to exercise options of the disabled person to purchase securities or other property, to exercise his rights to elect options and change beneficiaries under insurance and annuity
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12.11.2015 §5-408-A. Temporary conservator
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policies and to surrender the policies for their cash value, to exercise his right to an elective share in the estate of his deceased spouse and to renounce any interest by testate or intestate succession or by inter vivos transfer.
[ 1979, c. 540, §1 (NEW) .]
(4). The court may exercise or direct the exercise of, its authority to exercise or release powers of appointment of which the protected person is donee, to renounce interests, to make gifts in trust or otherwise exceeding 20% of any year's income of the estate or to change beneficiaries under insurance and annuity policies, only if satisfied, after notice and hearing, that it is in the best interests of the protected person, and that he either is incapable of consenting or has consented to the proposed exercise of power.
[ 1979, c. 540, §1 (NEW) .]
(5). An order made pursuant to this section determining that a basis for appointment of a conservator or other protective order exists, has no effect on the capacity of the protected person.
[ 1979, c. 540, §1 (NEW) .]
(6). The court may authorize a gift or other transfer for less than fair market value from the protected person's estate if the court finds:
(a). That the remaining estate assets of the protected person are sufficient for the protected person's care and maintenance for the next 60 months, including due provision for the protected person's established standard of living and for the support of any persons the protected person is legally obligated to support and any dependents of the protected person; and [2011, c. 155, §1 (AMD).]
(b). That the gift or other transfer will not hasten the date of eligibility for MaineCare coverage of the protected person's long-term care expenses during the next 60 months. [2011, c. 155, §1 (AMD).]
If the gift or other transfer is being made to the protected person's spouse or blind or disabled child or to a trust established pursuant to 42 United States Code, Section 1396p(d)(4), or is otherwise specifically allowed without a transfer penalty by law governing the federal Medicaid program under 42 United States Code, the court may authorize the gift or other transfer without making the findings under paragraphs (a) and (b).
[ 2011, c. 155, §1 (AMD) .]
SECTION HISTORY
1979, c. 540, §1 (NEW). 1985, c. 440, §§11,13 (AMD). 1993, c. 652, §6 (AMD). 2005, c. 12, §DDD4 (AMD). 2005, c. 12, §DDD17 (AFF). 2011, c. 155, §1 (AMD).