As the population ages, the number of seniors who cannot safely make financial decisions and/or care for themselves increases. When an adult needs someone to help make personal and/or financial decisions, adult guardianship can be a solution. Adult guardianship, however, gives the guardian considerable control over the ward (the incapacitated adult), opening the door for things to go wrong. The attorneys at Legacy Care Law Firm explain how adult guardianship works in New Hampshire, how it can go wrong, and what you can do to prevent becoming a victim when it does go wrong.
Understanding Adult Guardianship
Adult guardianship is designed to protect individuals who are unable to care for themselves or manage their own affairs due to physical and/or mental limitations or deterioration. In New Hampshire, the process is governed by the state’s probate court system and involves a series of steps to ensure that the rights and interests of the incapacitated person, also known as the ward, are protected. Guardianship can be a much-needed legal measure that allows a family member or loved one to step in and protect an at-risk senior; however, it can also provide opportunities for predators to prey on vulnerable seniors.
Types of Guardianship in New Hampshire
There are two primary types of guardianship in New Hampshire. Guardianship of the Person grants the guardian the authority to make personal decisions for the ward, such as where the ward lives and what physicians treat the ward. Guardianship of the Estate involves managing the financial affairs of the ward, such as paying bills, managing investments, and handling income. A guardian can be appointed as either Guardian of the Person or Guardian of the estate or as both types of guardians. The court can also limit the authority that a guardian has if the court believes that doing so is in the best interest of the ward. For instance, the court might grant a guardian the authority to decide where the ward lives but not grant the authority to decide what activities the ward undertakes each day.
How Does the Guardianship Process Work in New Hampshire?
The guardianship process begins with the filing of a petition in the probate court of the county where the alleged incapacitated person resides. The petition must include detailed information about the person’s condition and why guardianship is necessary. After the petition is filed, the court schedules a hearing and notifies all interested parties, including the proposed ward and known family members. To help determine whether the individual is incapacitated, the court may order an evaluation of the proposed ward’s physical and mental condition to be conducted by a qualified healthcare professional. At the hearing, the petitioner and anyone who has officially opposed the petition can present evidence and testimony. If the court determines that the person is incapacitated and that guardianship is necessary and in the best interest of the ward, an Order is issued appointing a guardian. Usually, the person who petitioned the court is appointed to be the guardian.
When Adult Guardianship Goes Wrong: A Cautionary Tale
When adult guardianship works as intended, it can allow a concerned family member or loved one to gain the legal authority necessary to protect an incapacitated adult. For example, an adult child might become concerned that an aging parent with considerable financial resources is vulnerable to predators who swindle money from seniors. Obtaining guardianship over the parent allows the adult child to step in and manage the parent’s finances to prevent the parent from being victimized.
Sometimes, however, an incapacitated senior does not have concerned family members or loved ones who have the senior’s best interests in mind. When that is the case, a court may appoint a stranger to be the senior’s guardian. That is when things can go horribly wrong. Take, for example, the case of Douglas Hulse, an 80-year-old Florida resident and retired pilot. Hulse appeared so distressed at a gas station one day that onlookers called 911. First responders rushed Hulse to the hospital where he was stabilized, but healthcare workers determined that he was no longer capable of caring for himself.
Because a hospital can be legally liable if they discharge a patient to an unsafe environment, and because Hulse did not appear to have any family members who could take care of him, the hospital petitioned a court to appoint a guardian. The court agreed that Hulse needed a guardian, and one was appointed – someone who not only was not related to Hulse but who had never met Hulse prior to being appointed to make personal and financial decisions for him. His court-appointed guardian moved him into a nursing home and sold his home shortly after being appointed. Eventually, Hulse’s guardian was investigated for elder exploitation and fraud; however, Hulse’s court-appointed guardian sold his home, vehicles, gun collection, and valuable jewelry at below-market prices in the interim. Moreover, it was later discovered that Hulse did have a family – and they were looking for him.
When Hulse’s niece finally located him and contacted his court-appointed guardian, she was informed that the guardian had yet to meet her uncle in person despite being responsible for making personal and financial decisions for him for two years. Sadly, Hulse’s story is far from unusual. While outright fraud and theft may not regularly occur, court-appointed guardians frequently neglect their wards, whether because they are apathetic or overworked. The good news is that proactive estate planning can help prevent what happened to Douglas Hulse from happening to you or your loved ones.
How to Prevent Adult Guardianship from Going Wrong
The best way to prevent something like what happened to Douglas Hulse from happening to you or a loved one is to acknowledge the possibility of incapacity and plan accordingly. Knowing that you might one day be unable to make your own decisions, include an incapacity planning component in your comprehensive estate plan. Estate planning tools and strategies that can help include things such as:
- Revocable Living Trust: You appoint yourself as the Trustee and transfer important assets into the trust. You continue to manage and control trust assets unless you become incapacitated, at which time the successor Trustee designated by you takes over control of trust assets without the need for court intervention.
- Advance directives: A Living Will allows you to make crucial end-of-life healthcare decisions now, such as whether to accept life-sustaining measures or artificial nutrition. Your wishes are legally required to be obeyed if you have a valid Living Will in place. A Healthcare Power of Attorney lets you appoint an Agent to make other healthcare decisions for you if you cannot make or communicate decisions because of incapacity, ensuring that someone of your choosing makes important decisions.
- Durable Power of Attorney: This legal document lets you designate an Agent to have the legal authority to act on your behalf in legal proceedings or transactions. Making the POA durable means that your Agent’s authority survives your incapacity.
- Voluntary Guardianship: If you know that incapacity is coming (for example, if you have been diagnosed with Alzheimer’s or another terminal condition) you may wish to enter into a voluntary guardianship, ensuring that someone you choose is appointed to be your guardian.
Do You Have Additional Questions About Adult Guardianship in New Hampshire?
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about adult guardianship in New Hampshire, contact our estate planning attorneys in our North Andover, Woburn, and Beverly offices at (978) 969-0331. Our Salem and Nashua, New Hampshire office can be reached at (603) 894-4141.
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