Mom or Dad Can Not Care For Themselves.
Is a Guardianship The Only Answer?

This article was prepared by Solomon Law Firm for the New Hampshire Bar Association and published in the Union Leader.

Strict legal procedures govern the application for guardianship in the "Live Free or Die State" of New Hampshire. Guardianships exist to promote and protect the well being, personal freedom and property rights of the person who is the subject of the guardianship, known legally as the proposed ward. This purpose imposes on every guardian a high degree of responsibility, along with certain powers and duties to act on the proposed ward's behalf. These responsibilities and powers are available, however, only after strict legal and medical scrutiny.

Any adult who has an interest in the welfare of the proposed ward may petition for an Appointment of Guardianship in the probate court located in the county in which the proposed ward resides. A guardianship may last for a limited or an indefinite time period; it may be solely over the person or the person's estate, or both the person and the person's estate. A guardian of the person is one appointed by the court to have care and custody of the incapacitated person; a guardian of the estate is one appointed by the court to manage the financial affairs of the incapacitated person. If a guardianship over the estate is sought, a brief description and the approximate value of the real and personal property and income of the proposed ward so far as the petitioner knows them must be included in the petition.

A statement must be filed with the petition containing facts, which show the necessity for the appointment of a guardian. This statement is of critical importance to the court's judgment as to whether or not the proposed ward actually needs a guardian. The probate court, to appoint a guardian, must determine that the proposed ward is "incapacitated". An incapacitated person is one who has suffered, is suffering or may suffer substantial harm because the person has a functional limitation which impairs their ability to provide for personal needs for food, clothing, shelter, health care or safety, or the ability to manage property or financial affairs. For example, Alzheimer's Disease could be considered the cause of such functional limitations, and therefore be "incapacitating", depending on its severity and the impact it has on the proposed ward.

All allegations of incapacity must be described with particular detail. Statements that a person is mentally incompetent, unable to care for him or herself, or suffers from a mental impairment such as Alzheimer's, is not enough evidence for a court to determine that the proposed ward is incapacitated. The petitioner, therefore, should specifically list all the acts, and/or occurrences and/or financial transactions or decisions which specifically tend to show that the proposed ward is unable to provide self care or manage property and finances.

Once the petition is filed, the probate court schedules a hearing and issues notice to all concerned parties, generally the petitioner, the proposed ward, and any relatives whose names and addresses appear on the petition. The proposed ward has an absolute and unconditional right to be represented by an attorney at this hearing and must attend this hearing if he or she is within the State and able to attend. If the proposed ward has previously expressed a desire not to attend, the ward's attendance may be excused if counsel for the ward files a written statement with the court expressing the ward's desire, any time up until the time of the hearing. Any such statement filed, requesting the proposed ward's excuse from attendance, must be accompanied by a physician's affidavit indicating that the overall physical and emotional condition of the proposed ward is such that he or she is likely to suffer harm from attending, or that the proposed ward has no ability to understand the nature and consequences of the guardianship proceedings. This medical statement is considered evidence only of the proposed ward's inability to attend the hearing; not evidence of any incapacity.

The petitioner must prove at the hearing that all the allegations listed in the petition are true beyond any reasonable doubt. The court could then find that the proposed ward does not have the capacity to care for their person or their estate, allow the petition for guardianship, and appoint the petitioner guardian.

After an appointment, the guardian may, among other things, establish the ward's place of abode, give the necessary consent or approval for specific medical care or other professional care, treatment or service for a 5 year period after which such decisions are reviewed by the court. A guardianship over the ward's estate allows the guardian to take possession of all the ward's real and personal property, and all rents and income therefrom and requires the guardian to manage the ward's assets in a prudent manner.

The rigors and responsibilities of a guardianship can be avoided if the individual in question has executed, or is still mentally sound enough to execute a Durable Power of Attorney and/or a Durable General Healthcare Power of Attorney. These documents allow a person to self-designate who will make financial and/or medical decisions for them should they become incapacitated. They must be signed while the person is not incapacitated. For example, if Alzheimer's disease is already affecting a person's behavior; the person is confused, forgetful, does not recognize people, or is incompetent; a guardianship must be pursued. If, on the other hand, the person still has the mental capacity to execute a will, that individual may execute a Durable Power of Attorney and a Healthcare Power of Attorney.

With a minimal amount of pre-planning it is possible for a person to establish for himself or herself, who will be responsible for making health care and/or financial decisions when they no longer can, while simultaneously lifting the added burden of a guardianship procedure from the shoulder's of loved ones. In the absence of such self-executed documents, however, it is reassuring to note that in New Hampshire a court will only limit an individual's freedom where good cause is shown for the need for a guardian.

The attorneys at Solomon Professional Association understand the importance of making the law available to our community. We analyze your problems and discuss the law plainly so that you can make the legal decisions that are right for you. If you have legal questions, call us at 1-877-LAW HELP (1-877-529-4357).

Q&A

Question:
My mother is a senior citizen and has recently been diagnosed with Alzheimer's Disease. She is currently in the hospital but needs to be moved to a nursing home facility because she can no longer live alone. It was suggested to me that I seek guardianship over my mother and probably her estate. How do I apply for guardianship? What does it involve?

Answer:
Strict legal procedures govern the application for guardianship in the "Live Free or Die State" of New Hampshire. Guardianships exist to promote and protect the well-being, personal freedom and property rights of the person who is the subject of the guardianship, known legally as the proposed ward. This purpose imposes on every guardian a high degree of responsibility, along with certain powers and duties to act on the proposed ward's behalf. These responsibilities and powers are available, however, only after strict legal and medical scrutiny.

Any adult who has an interest in the welfare of the proposed ward may petition for Appointment of Guardianship in the probate court located in the county in which the proposed ward resides. A guardianship may last for a limited or an indefinite time period; it may be solely over the person or the person's estate, or both the person and the person's estate. A guardian of the person is one appointed by the court to have care and custody of the incapacitated person; a guardian of the estate is one appointed by the court to manage the financial affairs of the incapacitate person. If a guardianship over the state is sought, a brief description and the approximate value of the real and personal property and income of the proposed ward so far as the petitioner knows them must be included in the petition.

A statement must be filed with the petition containing facts which show the necessity for the appointment of a guardian. This statement is of critical importance to the court's judgment as to whether or not the proposed ward actually needs a guardian. The probate court, to appoint a guardian, must determine that the proposed ward is "incapacitated". An incapacitated person is one who has suffered, is suffering or may suffer substantial harm because the person has a functional limitation which impairs their ability to provide for personal needs for food, clothing, shelter, health care or safety, or the ability to manage property or financial affairs. For example, Alzheimer's Disease could be considered the cause of such functional limitations, and therefore be "incapacitating," depending on its severity and the impact it has on the proposed ward.

All allegations of incapacity must be described with particular detail. Statements that a person is mentally incompetent, unable to care for him or herself, or suffers from a mental impairment such as Alzheimer's, is not enough evidence for a court to determine that the proposed ward is incapacitated. The petitioner, therefore, should specifically list all the acts, occurrences, financial transactions and/or decisions which specifically tend to show that the proposed ward is unable to provide self care or manage property and finances.

Once the petition is filed, the probate court schedules a hearing and issues notice to all concerned parties. There are generally the petitioner, the proposed ward, and any relative whose names and addresses appear on the petition. The proposed ward has an absolute and unconditional right to be represented by an attorney at this hearing and must attend this hearing if he or she is within the state and is able to attend. If the proposed ward has previously expressed a desire not to attend, the ward's attendance may be excused if counsel for the ward files a written statement with the court expressing the ward's desire, anytime up until the time of the hearing. Any such statement requesting the proposed ward's excuse from attendance must be accompanied by a physician's affidavit indicating that the overall physical and emotional condition of the proposed ward is such that he or she is likely to suffer harm from attending, or that the proposed ward has no ability to understand the nature and consequences of the guardianship proceedings. This medical statement is considered evidence only of the proposed ward's inability to attend the hearing and not evidence of any incapacity.

The petitioner must prove at the hearing that all the allegations listed in the petition are true beyond any reasonable doubt. The court could then find that the proposed ward does not have the capacity to care for their person or their estate, allow the petition for guardianship, and appoint the petitioner, or some other person, guardian.

After an appointment, the guardian may, among other things, establish where the ward will live and give the necessary consent or approval for specific medical care or other professional care, treatment or service. The Order of Appointment is in effect for a five-year period after which such decisions are reviewed by the court. A guardianship over the ward's estate allows the guardian to take possession of all the ward's real and personal property, and all rents and income, and requires the guardian to manage the ward's assets in a prudent manner.

The rigors and responsibilities of obtaining and maintaining a court appointed guardianship can be avoided if the individual in question has executed, or is still mentally sound enough to execute, a Durable Power of Attorney and/or a Durable General Healthcare Power of Attorney. These documents allow a person to designate who will make financial and/or medical decisions for them should they become incapacitated. They must be signed while the person is not incapacitated. For example, if Alzheimer's Disease is already affecting a person's behavior and the person is confused, forgetful, does not recognize people, or is incompetent, a guardianship must be pursued. If, on the other hand, the person still has the mental capacity to execute a will, that individual may execute a Durable Power of Attorney and a Healthcare Power of Attorney.

With a minimal amount of planning, it is possible for a person to establish for himself or herself who will be responsible for making health care or financial decisions when they no longer can, while simultaneously lifting the added burden of a guardianship procedure from the shoulders of loved ones. In the absence of such self-executed documents, however, it is reassuring to note that in New Hampshire a court will only limit an individual's freedom where good cause is shown for the need for a guardian.

This article was published in The Union Leader on November 5, 1999.