CHAPTER 288
HB 219 – FINAL VERSION
13Jan2010… 2009-2490h
05/05/10 1738s
2010 SESSION
09/03
HOUSE BILL 219
AN ACT relative to hearings for incapacitated persons admitted to state institutions by their guardians.
SPONSORS: Rep. L. Weber, Ches 2
This bill establishes certain time frames and procedures for probate courts holding hearings on incapacitated persons admitted to state institutions by their guardians.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
13Jan2010… 2009-2490h
05/05/10 1738s
09-0715
09/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Ten
AN ACT relative to hearings for incapacitated persons admitted to state institutions by their guardians.
Be it Enacted by the Senate and House of Representatives in General Court convened:
288:1 Powers and Duties of Guardians of Incapacitated Persons; Admission to State Institution. RSA 464-A:25, I(a) is repealed and reenacted to read as follows:
(a) To the extent that it is consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the ward, the guardian shall be entitled to custody of the ward and may establish the ward's place of abode within or without this state. Admission to a state institution shall be in accordance with the following:
(1) A guardian may admit a ward to a state institution with prior approval of the probate court if, following notice and hearing, the court finds beyond a reasonable doubt that the placement is in the ward's best interest and is the least restrictive placement available. Authorization for such admission shall not be time limited unless the court so orders. Authority to admit a ward to a state institution with prior approval under this subparagraph shall not be subject to the limitations contained in RSA 464-A:25, I(a)(2) through (7).
(2) A guardian may admit a ward to a state institution without prior approval of the probate court upon written certification by a physician licensed in the state of New Hampshire, or, in the case of placement in New Hampshire hospital, by a psychiatrist licensed in the state of New Hampshire, that the placement is in the ward's best interest and is the least restrictive placement available. Within 36 hours, excluding days when the court is closed, of such an admission of a ward to a state institution, the guardian shall submit to the Merrimack county probate court notice of the admission and the reasons therefor, together with a copy of the certificate by the physician or psychiatrist.
(3) The Merrimack county probate court shall review the guardian’s notice within 48 hours of the filing of the notice, excluding days when the court is closed, to determine whether the notice on its face appears to establish that the placement is in the ward’s best interest and is the least restrictive placement available. If the court concludes that the notice is insufficient, the court shall order the immediate release of the ward from the state institution. If the court concludes that the notice is sufficient, counsel for the ward shall be appointed no later than 48 hours following the court’s review of the guardian’s notice, excluding days when the court is closed. Notice of the appointment shall be transmitted to the ward, to the guardian, and to counsel. Counsel’s notice shall be transmitted in writing and electronically or in another manner which is likely to give actual notice of the appointment to counsel at the earliest practicable time. For purposes of proceedings regarding admissions to state institutions without prior court approval, the ward shall have the right to legal counsel in the same manner as provided in RSA 464-A:6. The court shall also provide the ward a notice stating that the ward has the right to appointed counsel, the right to oppose the admission by the guardian, and the right to a hearing and to present evidence at that hearing.
(4) Counsel for a ward admitted to a state institution who has been appointed pursuant to subparagraph (3) shall deliver a written report to the court within 5 days of his or her appointment which shall declare whether the ward requests a hearing on the propriety of the admission. Unless the ward waives a hearing, counsel’s report shall include a request for a hearing on behalf of the ward. A copy of counsel’s report shall be sent to the ward and to the guardian. If the court does not receive a written report from counsel within 5 days of counsel’s appointment, the court shall order appropriate relief, including but not limited to substitution of counsel, an order to show cause, or scheduling of a hearing on the propriety of the admission without awaiting a report from counsel.
(5) Upon receipt of a request for a hearing, the court shall schedule a hearing on the admission to a state institution without prior approval of the probate court, at which the guardian shall have the burden of proving, beyond a reasonable doubt, that the placement is in the ward’s best interest and is the least restrictive placement available. The hearing shall be held within 10 days, excluding days when the court is closed, from the date that the request is received.
(6) A guardian may not admit a ward to a state institution for more than 60 days for any single admission or more than 90 days in any 12-month period upon certification of a physician or psychiatrist without filing a petition requesting approval of the probate court.
(7) At any time, the ward or counsel for the ward may request a hearing on the admission to a state institution without prior approval of the probate court, at which the guardian shall have the burden of proving, beyond a reasonable doubt, that the placement is in the ward’s best interest and is the least restrictive placement available. The hearing shall be held within 15 days, excluding days when the court is closed, from the date that the hearing is requested.
288:2 Jurisdiction and Venue; Guardianship Proceedings. Amend RSA 464-A:3, II(a) to read as follows:
(a) Except as provided in RSA 464-A:25, I(a), venue for guardianship proceedings for a proposed ward is in the county where the proposed ward resides, or the county in which the proposed ward is physically present when the proceedings are commenced.
288:3 Effective Date. This act shall take effect January 1, 2011.
Approved: July 13, 2010
Effective Date: January 1, 2011