Increased Privacy Protections Proposed for the Probate Courts
Are you aware of your probate court privacy protections? Would you expect that the inventory of a loved one’s estate would be viewable by anyone in the public? If someone was seeking to become your guardian or conservator, would you think that documents with your medical conditions and prognosis or with your assets would be open public records available through a quick internet search? Probably not. It would seem to be a fair assumption that very detailed information about finances or someone who is in a potentially vulnerable situation would not be open to the public even if other aspects of the case are. As courts in Maine adjust to the process of electronic filing, this issue continues to evolve.
In Maine, the county-specific court system, known as the Probate Courts, handle cases like guardianships and conservatorships, administration of estates of deceased people, certain trust administration matters, and some adoptions. In most situations, Maine’s Probate Courts now require that any document or information that is being submitted to the Court be filed electronically. The scanned document or other information that is uploaded to the Court is then posted on the online docket record, which the general public can search, usually as it was submitted without any redaction. Having these documents so easily accessible to the public has its benefits, including transparency and accountability. But it is has also increased privacy concerns that were not so acute before electronic filing began—when someone would have to physically come to the courthouse and page through a paper file to find the same information. Also, there is some inconsistency among the various counties in terms of what documents either would not be posted to the public record or would be removed if requested.
A recent court case attempted to challenge this process in one of the counties that automatically posted all documents and other information submitted to the Court as part of the public docket record. In the Conservatorship of Emma case, Emma’s husband as her conservator, and later her son as her successor conservator, were required to file inventories of her assets as part of the typical court monitoring of conservatorships. Emma’s son requested that the local Probate Court handling the case remove these inventories because of the level of financial detail involved. The Probate Court initially denied this request but then sent a certified question to the Maine Supreme Judicial Court, requesting a decision on this issue. The Supreme Judicial Court issued an opinion that did not go to the merits of the question, noting that the issue would be better decided through the rule-making process.
Around the same time, in response to these concerns, the Maine Supreme Judicial Court proposed rule amendments to the Maine Rules of Probate Procedure to expand privacy protections in two ways. First, the proposed rules would expand the definition of “private information” in Rule 92.12(c) to include social security numbers of all people (no longer just living people) and causes of death. The rule already also includes banking/brokerage account numbers and a catchall for “any other information” designated as private information by the Probate Court. Second, the definition of “private records” in Rule 92.12(a) would be expanded to add inventories, death certificates, birth certificates, and accountings. Medical information privacy would also be broadened by making all physicians’ and psychologists’ reports private records rather than only the reports that are filed using the court form. The rule already states all adoption records and the summary certificates of value used to calculate the value of an estate are private records with the same catchall for “any record or document” designated as a private record by the Probate Court. Private records are currently available to registered filers, and the rule change to Rule 92.12(d) would also make private records available to self-represented parties who have filed an appearance as an interested party in the particular matter.
The public comment period has closed on the proposed rules, but they have not yet been adopted. Some attorneys think that the rule changes still do not go far enough. For example, the definition of private records still does not include visitor’s reports or guardian ad litem reports, which may have information about medical conditions, mental health diagnoses, abuse experiences, substance use, and other information that most people would consider private. However, the rule amendments will certainly help to address concerns about surviving spouses, ill people, and other potentially vulnerable people being scammed by those who abuse the information that is available online.
It is unknown if another version of the rule amendments will be posted for comment before they are adopted. This issue will undoubtedly continue to evolve as Maine’s District and Superior Courts begin the process of instituting electronic filings. If you are involved in a probate court case, your attorney can inform you of what information about your case would be treated as public under the current rules and once the forthcoming amendments are adopted.