If you have an elderly parent who has been struggling with Alzheimer’s or simply succumbing to the deterioration that occurs with the natural aging process, you may be concerned about your parent’s ability to make decisions and/or safely carry out the daily tasks of living. At some point, it may be clear to you that your parent needs a legal guardian. With that in mind, the elder law attorneys at Legacy Care Law Firm explain how to become your parent’s guardian in New Hampshire.
What Is Adult Guardianship?
Adult guardianship is a court-ordered legal arrangement whereby a person (or agency) is given the authority to make decisions for an adult because the court determines that the adult is unable to make those decisions due to incapacity.
When Is a Guardian Warranted?
In New Hampshire, you may be appointed to be the Guardian of the Person, Guardian of the Estate, or Guardian of the Person and Estate. A Guardian of the Person is ordered when a court determines that the functional limitations of an individual (the “ward”) have declined to the point where that individual’s ability to participate in and perform minimal activities of daily living is not present. A Guardian of the Estate is appointed when a court determines that a person’s ability to understand and make decisions relative to financial matters is not present. A Guardian of the Person and Estate is appointed when a court is convinced that the ward suffers both functional and financial incapacity.
How Is Incapacity Defined in New Hampshire?
When used to determine the need for a Guardian, the term “incapacity” is defined by New Hampshire law as referring 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.”
What Does It Mean to Make an Informed Decision or Choice?
Simply proving that your parent is not providing for his/her food, shelter, clothing, or healthcare is not sufficient to be granted guardianship. You must also prove that your parent is not capable of making an informed decision to not provide a basic need. To determine if a proposed ward is making an informed decision or choice, the law takes a two-pronged approach by considering:
- If the proposed ward can demonstrate an understanding of the issues and the consequences of a particular decision.
- Whether the decision or choice is made freely.
By way of illustration, imagine that your parent lives in an assisted living facility and is refusing to eat. You have plenty of documentation and witness testimony showing that your parent is refusing to eat; however, you must also prove that the decision to refuse food was not an informed choice made by your parent.
How Do I Prove that My Parent Is Incapacitated?
Evidence of incapacity will be submitted to the court during the guardianship proceedings and may be in the form of medical documentation, photos, witness testimony, or other allowable forms of evidence. New Hampshire law requires evidence of incapacity to have occurred within six 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. Be prepared to substantiate your allegations that a guardian is needed as the court will not accept isolated instances of poor judgment or neglecting basic needs. The court will want to see a pattern of such behavior.
What Are the Legal Steps Required to Become My Parent’s Guardian in New Hampshire?
The first step in the New Hampshire guardianship process is to file a Petition for Guardianship with the probate court in the county where your parent is a resident. The Petition must be served on the proposed ward (your parent) as well as close family members, all of whom may object to the appointment of a guardian. A proposed ward is entitled to an attorney; if he/she cannot afford one, the court will appoint one to represent him/her. The court will set the matter for a hearing at which you must prove the need for a guardian using the highest burden of proof under the law – beyond a reasonable doubt. The court will only approve the appointment of a guardian if the court is convinced beyond a reasonable doubt that one is needed and there are no less restrictive alternatives that could be used to prevent harm to the proposed ward.
If the court does agree that a guardian is needed and that you are qualified to be that guardian, the court will issue Letters of Guardianship that set forth in detail the authority vested in your by the court.
Contact Elder Law Attorneys
For more information, please join us for an upcoming FREE seminar. If you have additional questions about how to become your parent’s guardian in New Hampshire, contact our probate 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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