Guardianship of Incapacitated Adults

RSA 464-

Guardianship over an adult requires presenting evidence of the adult’s incapacity.

“Incapacity” means a legal, not a medical, disability and shall be measured by functional limitations. It shall be construed to mean or refer to any person who has suffered, is suffering or is likely to suffer substantial harm due to an inability to provide for his personal needs for food, clothing, shelter, health care or safety or an inability to manage his or her property or financial affairs. Inability to provide for personal needs or to manage property shall be evidenced by acts or occurrences, or statements which strongly indicate imminent acts or occurrences. All evidence of inability must have occurred within 6 months prior to the filing of the petition and at least one incidence of such behavior must have occurred within 20 days of the filing of the petition for guardianship. Isolated instances of simple negligence or improvidence, lack of resources or any act, occurrence or statement if that act, occurrence or statement is the product of an informed judgment shall not constitute evidence of inability to provide for personal needs or to manage property.

There are two kinds of guardianship

There are generally two forms of guardianship over an adult who is 18 years of age or older which are: 1) guardianship over that person, and 2) guardianship over their estate.

Guardianship over the person entails a guardian having care and custody of the incapacitated person as specified by a court order.

Guardianship over the estate entails a guardian appointed by the court to manage the estate of the incapacitated person as specified by a court order.

Who can file for guardianship

Any relative, public official, or interested person, or any individual in his or her own behalf may file a petition for finding of incapacity and appointment of a guardian of a person, their estate, or both.

Right to Counsel

The right to an attorney for any person for whom a temporary guardian or guardianship of the person and/or estate is sought shall be absolute and unconditional. If the person over which the guardianship is sought does not have his or her own counsel, the court shall appoint counsel for them immediately upon the filing of a petition for guardianship of the person and/or estate. The appointed counsel shall inform the person over which the guardianship is sought that he or she shall be liable for attorney fees unless he or she is found indigent by the probate court.

Temporary Guardianship

The court may appoint a temporary guardian for an incapacitated person. The appointment shall be limited to the performance of duties respecting specific property, or to the performance of particular acts necessary to prevent immediate serious physical or mental harm to the person over which the guardianship is sought or immediate serious physical harm to others. No term of temporary guardianship shall exceed 60 days, unless for good cause shown and within the discretion of the court. If the person over which the guardianship is sought objects to the temporary guardianship the court will not appoint a temporary guardian without first holding a hearing. Appointment of a temporary guardian cannot be used as evidence of incapacity in a proceeding for issuing a regular guardianship order.

General Powers and Duties of a Guardian of the Person

A guardian of an incapacitated person has the following powers and duties, except as modified by order of the court:

The guardian will be entitled to custody of person over which the guardianship is sought and may establish their place of abode within or without the state. Admission to a state institution or other designated receiving facility will be as follows:

A guardian may admit the person over which the guardianship is sought, to a state institution or other designated receiving facility with prior approval of the probate court if, following notice and hearing, the court finds beyond a reasonable doubt that the placement is in their best interest and is the least restrictive placement available.

A guardian may admit the person over which the guardianship is sought, to a state institution or other designated receiving facility without prior approval of the probate court upon written certification by a licensed physician, a licensed advanced practice registered nurse, or a licensed physician assistant, licensed in the state of New Hampshire, or, in the case of placement in New Hampshire hospital or other designated receiving facility, by a psychiatrist licensed in the state of New Hampshire, a psychiatrist-supervised physician assistant licensed in this state, or an advanced practice registered nurse, that the placement is in the best interest of the person over which the guardianship is sought and is the least restrictive placement available. This action will be reviewed by the applicable county probate court within 48 hours to determine whether the guardian established that the placement is in the ward’s best interest and is the least restrictive placement available. If the court concludes that the guardian has not met this burden, the court will order the immediate release of the person over which the guardianship is sought from the state institution or other designated receiving facility. If the court concludes that the guardian has met their burden of proof, the court will appoint an attorney for the person over which the guardianship is sought no later than 48 hours thereafter. For purposes of proceedings regarding admissions to state institutions or other designated receiving facilities without prior court approval, the person over which the guardianship is sought will have the right to legal counsel in the same manner as stated above.

A guardian may not admit the person over which the guardianship is sought to a state institution or other designated receiving facility for more than 60 days for any single admission or more than 90 days in any 12-month period upon certification of a physician, psychiatrist-supervised physician assistant, or psychiatrist, or an advanced practice registered nurse without filing a petition requesting approval of the probate court.

At any time, the person over which the guardianship is sought or their attorney may request a hearing to be held within 15 days on the admission to a state institution or other designated receiving facility without prior approval of the probate court, at which the guardian has the burden of proving, beyond a reasonable doubt, that the placement is in the best interest of the person over which the guardianship is sought and is the least restrictive placement available.

If the guardianship is granted, they will make provision for the care, comfort and maintenance of the person over which the guardianship is sought, and, whenever appropriate, arrange for their training, education or rehabilitation. The guardian will take reasonable care of their clothing and personal effects.

A guardian of the person may give any necessary consent or approval to enable the person over which the guardianship is sought to receive medical or other professional care, counsel, treatment, or service or may withhold consent for a specific treatment, provided, that the court has previously authorized the guardian to have this authority, which authority shall be reviewed by the court as part of its review of the guardian’s annual report. No guardian may give consent for psychosurgery, electro-convulsive therapy, sterilization, or experimental treatment of any kind unless the procedure is first approved by order of the probate court.

If the person over which the guardianship is sought has previously executed a valid living will and/or a durable power of attorney for health care, the guardian shall be bound by the terms of such document, provided that the court may hold a hearing to interpret any ambiguity in such document.

A guardian may authorize a health care provider to restrain or forcibly administer treatment, or both, to the person over which the guardianship is sought, subject to any limitations imposed by the court.

A guardian will act with respect to the person over which the guardianship is sought in a manner which safeguards to the greatest extent possible their civil rights and restrict their personal freedom only to the extent necessary.

The court can limit the powers of the guardian of the person or impose additional duties if it deems such action desirable for the best interests of the person over which the guardianship is sought.

General Powers and Duties of Guardian of the Estate

The guardian of the estate will take possession of all of the real and personal property, and of all rents, income, and benefits therefrom, whether accruing before or after his or her appointment, and of the proceeds arising from the sale, mortgage, lease or exchange thereof belonging to the person over which the guardianship is sought. Subject to such possession, the title of all such estate and to the increment and proceeds thereof remains with the person over which the guardianship is sought and not in the guardian. It is the duty of the guardian of the estate to protect and preserve it, to retain, sell and invest it, to prosecute or defend actions, claims or proceedings in any jurisdiction for the protection of the estate’s assets, to account for it faithfully, to perform all other duties required by law, and at the termination of the guardianship to deliver the assets of the person over which the guardianship is sought to the persons entitled thereto. The guardian of the estate will apply the money and property for the support, care, and education of the person over which the guardianship is sought but, the guardian may not use funds from the estate for room and board which the guardian or his or her spouse, parent, or child have furnished the person over which the guardianship is sought unless a charge for the service is approved by order of the court.

The guardian may institute proceedings to compel any person or agency under a duty to support the person over which the guardianship is sought, or a duty to pay sums for their welfare, to perform this duty.

A guardian of the estate is required to file an annual account with the probate court unless the court finds that it is not appropriate. The court may limit the powers of the guardian of the estate or impose additional duties if it deems such action desirable in the best interests of the person over which the guardianship is sought.

Resignation, Removal, or Death of Guardian.

I. Any person appointed as guardian of the person or an estate or both will serve until:

(a) His or her resignation is accepted by the court;
(b) He or she dies;
(c) The court finds removal of the guardian to be in the best interests of the person over which the guardianship is sought; or
(d) The guardianship is terminated.

II. A guardian seeking to resign needs to file a motion for court approval of the resignation. Resignation of a guardian is not effective until accepted by the court and a successor guardian is appointed or the guardianship is terminated.

III. The person over which the guardianship is sought, or any person interested in their welfare may file a motion for the removal of the guardian of the person and/or the estate if removal would be in their best interests.

IV. The guardianship will not terminate with the resignation, removal, or death of the guardian, unless the court order expressly terminates the guardianship. If the guardianship is not terminated, the court shall appoint a successor guardian.

V. The resignation accepted by the court, removal, death of the guardian, or termination of the guardianship shall terminate the authority of the guardian, but will not release the guardian from responsibility for any act or omission occurring during the period of the guardian’s appointment.

VI. Any resignation or removal may be conditioned on such requirements or occurrences as the court may specify in the exercise of its reasonable discretion. The court may make such further orders as may be appropriate, including requiring a final account.

Termination of Guardianship

I. A guardianship of the person or of the estate will terminate upon order of the court, the death of the person over which the guardianship is sought, or upon a finding by the court either that they are no longer incapacitated or that their needs are met by available alternative resources.

II. The person over which the guardianship is sought or any person interested in their welfare may, at any time, file a motion for the termination of the guardianship based upon a finding that the person over which the guardianship is sought is no longer incapacitated. Provided, however, an order adjudicating incapacity may specify a minimum period, not exceeding one year, during which no motion concerning such adjudication may be filed without special permission from the court.

(b) The person over which the guardianship is sought may request the termination of the guardianship based on a finding that he or she is no longer incapacitated in an informal letter to the court or judge. Persons directly responsible for their care and supervision may assist them in preparing a letter of this kind. Any person who knowingly interferes with a transmission made by, or on their behalf to the court or judge may be adjudged guilty of contempt of court.

(c) Unless the motion is without merit, the court will hold a hearing at which the guardian will be required to prove that the grounds for appointment of a guardian continue to exist.

III. Upon termination of a guardianship of the estate, the guardian needs to file a final account with the court within 90 days after the date of termination, or as ordered by the court.