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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.

Definitions

Authorized Agency - an “authorized agency” is an agency which is licensed as a child placing agency under New Hampshire law (RSA Chapter 170-E).

Beyond a reasonable doubt - this is the same standard of proof required in criminal cases and is a higher standard of proof than either preponderance of the evidence or clear and convincing evidence. It generally means that a case must be proven to the extent that there could be no "reasonable doubt" in the mind of a "reasonable person" that, in the case of a guardianship, that the proposed ward is incapacitated and in need of a guardian.

Clear and convincing evidence – this is a standard of proof required in certain court proceedings and is a higher standard of proof than a “preponderance of the evidence” but not as high a standard as “beyond a reasonable doubt.” It is generally accepted to mean that the evidence presented by a party during the hearing must be highly and substantially more probable to be true than not and the trier of fact must have a firm belief or conviction in its factuality.

Department - means the Department of Health and Human Services as well as any agencies within DHHS.

Guardian ad litem– a guardian ad litem (sometimes referred to as a GAL) is a disinterested person (disinterested meaning has no personal or financial stake in the case) who is appointed by the court to represent the minor's interest in the case. A GAL may be appointed when it appears to the court that the interests of the minor are not fully represented or if any interested party asks that a GAL be appointed.

Guardianship over estate – this refers to a guardianship over the property/financial affairs of the minor/ward. The guardian is given decision making authority over the property and financial affairs of the minor/ward, for example bank accounts, real estate and assets inherited under a will of a relative.

Guardianship over person – this refers to a guardianship over only the person and not the property or financial affairs of the minor/ward. The guardian is given decision making authority over only the person of the minor/ward, for example where the minor/ward resides and what medical treatment will be provided.

Guardianship over person and estate – this refers to a guardianship over both the person and the property of the minor/ward. The guardian is given decision making authority over both.

Incapacitated - a person is generally deemed to be “incapacitated” when the court determines that the functional limitations of the person have declined to the point where the person’s ability to participate in and perform minimal activities of daily living is not present.

Jurisdiction – jurisdiction refers to which court may hold a particular type of proceeding. Minor guardianships are within the jurisdiction of the Circuit Court Family Division if the guardianship is over the person only and within the jurisdiction of the Circuit Court Probate Division if an estate is involved.  Guardianships of Incapacitated Persons are within the jurisdiction of the Circuit Court Probate Division.

Minor - For purposes of a minor guardianship, a “minor” is a child who is under the age of 18 and who is unmarried and unemancipated.

Order of Notice – this is a hearing notice prepared by the court which lets all who are entitled to notice of a proceeding know that the proceeding will happen and when/where it will happen. It will be sent by mail to parties entitled to receive notice of the guardianship hearing.

Parent – in a minor guardianship proceeding, the term parent means mother, father, or adoptive parent, but such term shall not include a parent as to whom the parent-child relationship has been terminated by judicial decree or voluntary relinquishment.

Petition - a court form which begins a court case, in this situation a guardianship of a minor or of an incapacitated person.

Preponderance of the evidence – this is a standard of proof required in certain court proceedings and has been defined to mean just enough evidence to make it more likely than not that the fact the claimant seeks to prove is true.

Proposed Ward - the “proposed ward” is the person for whom a guardianship is sought. Once the guardianship has been ordered by the court, the person becomes the “ward.”

Venue – when it is determined that a court has the appropriate jurisdiction, venue refers to the specific court location at which the case will be heard.  For example, jurisdiction over guardianships of incapacitated persons is in the Circuit Court Probate Division.  If the parties reside in Cheshire County, then the proper venue will be in Cheshire County as well.  The case would be heard in the Keene Probate Division.  Put another way, jurisdiction asks the question can the Court hear the case?  Does it have the authority by law?  Venue asks which court, in what location, will hear the case

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