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Guardianship

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Circuit Court - Guardianship (e-Filing)

e-Filing is required for guardianship cases that started electronically (not in paper) at all family division and all probate division locations.

 

Electronic Filing

Electronic Filing is required in Guardianship cases filed at all family division and all probate division locations. Self-represented litigants will use the program TurboCourt.  Attorneys will use the program File & Serve.

 

Basic Facts

A guardian is a person who has been appointed by the court to have care and custody of a minor or of an incapacitated person as specified by a court order. The guardian may be appointed over the person and also over the person’s estate.

There are generally two types of guardianships: guardianship of a minor and guardianship of an “incapacitated” person.

Guardianships of minors are done in the Family Division, unless the guardianship involves both the person and estate of the minor in which case it would be done in the Probate Division. A minor is defined as someone who is under 18 years of age and who is unmarried and unemancipated.

Guardianships of incapacitated persons are done in the Probate Division. “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.” RSA 464-A:2, XI.

Either guardianship, over a minor or over an incapacitated person, may be over the person only or may be over the person and estate. This determination will be made based upon the needs of the proposed ward (the person over whom guardianship is sought), the request of the proposed guardians, and the judgment of the court.

What is the difference between a guardianship over the person only, estate only or person and estate?

A guardian over the person (only) has the court ordered authority to make certain life decisions for the ward, such as where the ward shall live.  In addition, the guardian may consent or approve to medical treatment of the ward, in certain circumstances admit the ward to an institution, make provision for the care and comfort of the ward and take reasonable care of the ward’s personal effects.  The guardian is required to file a report with the court following the appointment advising of the general welfare of the ward.

A guardian over the estate (only) must take possession of the ward’s personal property and real estate, as well as any other monies, stocks, etc. owned by the ward and provide an inventory of these items to the court.  The inventory is a court form.  It is the duty of the guardian to protect and preserve the estate of the ward and provide an annual accounting of the guardian’s dealings with the ward’s assets to the court.

A guardian of both the person and estate is responsible for all of the things referenced above.

The circumstances of each case will determine whether a guardianship over the person only, estate only or person and estate should be sought.

How do guardianship cases flow through the court?

Guardianship of an Incapacitated Person

The overview which follows does not purport to explain all aspects of a guardianship of incapacitated proceeding or all possibilities.  It is meant only as a general overview.   Once the petition and required documents are filed, the court will schedule the case for a hearing.  In certain situations an expedited hearing may be requested.  The court will appoint an attorney to represent the proposed ward unless the proposed ward already has an attorney. The court will issue orders of notice scheduling the hearing and advising of the date/time for the hearing.  The proposed ward’s attorney will provide the proposed ward with the notice and others will receive the notices by first class mail.  The ward will generally attend the court hearing unless the attendance of the proposed ward is waived.  At the hearing, it is the burden of the petitioner to prove beyond a reasonable doubt that the proposed ward is incapacitated and in need of a guardian.  The hearing is held in a closed courtroom.  If the guardianship is granted, the court will issue an order appointing the guardian and setting forth the powers of the guardian.  Thereafter, the guardian will be required to file additional documents and reports during the pendency of the guardianship.

Guardianship of a Minor

The overview which follows does not purport to explain all aspects of a minor guardianship proceeding or all possibilities.  It is meant only as a general overview.  Once the petition and all other required documents are filed, the court will schedule a hearing on the petition and provide all interested parties with notice by certified mail.  The person filing the petition must pay the cost of the certified mailing.  Interested parties include the petitioner, the minor’s parents, other relatives if the minor’s parents are deceased, if a child placing agency is involved that agency, and also to the minor if the minor is more than 14 years old.  Others may be provided with notice as well.  The court may also appoint a guardian ad litem (a person, sometimes an attorney) who’s role in the court proceeding is to assist the court in determining what is in the best interests of the minor.  Payment of the GAL fees will be determined by the court.  The court will also require that the proposed guardian submit to a criminal background check as well as a check of the abuse and neglect registry and forms to permit those checks will be required of the proposed guardian and possibly others living in the same household with the proposed ward.  At the hearing it will be the burden of the person seeking the guardianship over the person of the minor to prove by a “preponderance of the evidence” that the guardianship is in the best interests of the minor.  If, however, the person seeking guardianship is not a parent of the minor, the person must prove by clear and convincing evidence that the best interests of the minor require substitution or supplementation of parental care and supervision to provide for the essential physical and safety needs of the minor or to prevent specific, significant psychological harm to the minor.  For the purpose of a guardianship over the minor’s estate, the petitioner must establish by a preponderance of the evidence that the guardianship is necessary to provide for the proper management of the property and financial affairs of the minor. The hearing will be held in a closed court.  If the guardianship is granted, the guardian will be required to file additional documents and reports during the pendency of the guardianship.

 

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