Published: NH Union Leader
When a loved one is diagnosed with a condition or injury that leaves them, or will likely leave them, unable to care for themselves, legal paperwork is usually the last thing on anyone’s mind. However, in many cases - particularly where the individual lacks an estate plan that authorizes others to act on their behalf if they lose capacity - a legal guardianship may be the best way to make sure that person is protected.
Guardianship is a legal arrangement in which a court appoints someone, known as a guardian, to make decisions on behalf of another person, a ward, who can no longer make sound decisions on their own. The guardian has both the legal authority and duty to look after the ward’s well-being.
There are three forms of guardianship. A guardian of the person makes decisions about the individual's daily life, health care, and living situation. A guardian of the estate manages the individual's finances, property, and assets. A guardian can be appointed over the person and the estate.
An individual who still has the capacity to make sound decisions can work with an attorney to create an estate plan that nominates one or more people to serve as a guardian, names backup nominees, and identifies anyone they wish to exclude.
Whether or not someone has previously nominated a guardian, the formal process begins when an interested party, like a family member, friend, or hospital, files a petition with the Circuit Court’s Probate Division.
The petition must demonstrate that the proposed ward lacks the capacity to care for themselves, supported by evidence of incidents from the past six months, with at least one within 20 days of filing. In New Hampshire, a person lacks capacity when they have “suffered, [are] suffering or [are] likely to suffer substantial harm due to an inability to provide for [their] personal needs for food, clothing, shelter, health care or safety or an inability to manage [their] property or financial affairs.” The petition must also state the type of guardianship being sought and identify the proposed guardian.
Once a petition is filed, a judge holds a hearing at which evidence is presented about the proposed ward’s ability to care for themselves and the fitness of the proposed guardian. The proposed ward has the right to attend the hearing and testify.
The judge will determine whether the person is incapacitated and, if so, whether guardianship is the least restrictive option. Since guardianship represents a significant limitation on personal freedom, courts will only grant it when no less restrictive alternative is appropriate. If guardianship is granted, the court issues an order specifying the guardian’s authority.
Families often pursue guardianship when a loved one makes increasingly unsafe choices. They may neglect basic needs like food and hygiene, fail to pay bills, or refuse necessary medical care. Guardianship provides a court-supervised framework to ensure someone is looking out for the person when they can no longer do so themselves. If you believe that a loved one needs a guardian, contact an attorney for assistance.