TITLE XLIV
GUARDIANS AND CONSERVATORS
Chapter 464-A
GUARDIANS AND CONSERVATORS
Section 464-A:1
464-A:1 Purpose. –
It is the purpose of this chapter to promote and protect the well-being of the proposed ward in involuntarily imposed protective proceedings. This chapter is designed to provide procedural and substantive safeguards for civil liberties and property rights of a proposed ward or an individual already under guardianship powers. It is the further purpose of this chapter to encourage the development of maximum self-reliance in the individual; to encourage rehabilitative care, rather than custodial care for incapacitated individuals; and to impose protective orders only to the extent necessitated by the individual's functional limitations.
Source. 1979, 370:1, eff. Aug. 22, 1979.
Section 464-A:2
464-A:2 Definitions. –
As used in this chapter:
I. "Absentee" means a person serving in or with the armed forces of the United States, or a person serving as a merchant seaman, who has been reported or listed as missing or missing in action or interned in a neutral country or has been beleaguered, besieged or captured by an enemy or any person who has not been seen or heard from for a period of time sufficient to raise a presumption in the discretion of the probate court that such person has abandoned his or her estate or is otherwise incapable of the prudent management of his or her affairs.
II. "Available alternative resource" means alternatives to guardianship including, but not limited to, services such as visiting nurses, homemakers, home health aides, adult day care and multipurpose senior citizen centers; powers of attorney, supported decision-making agreements such as those authorized by RSA 464-D, representative and protective payees; and board and care residential care facilities.
III. "Conservator" means a person who is appointed by the court to manage the estate of one who requests the appointment of a conservator.
IV. "Court" means the probate court in the county having jurisdiction or where the ward resides.
V. "Developmental disability" means the definition as set forth in RSA 171-A:2, V.
VI. "Emergency" means a situation such that the allegedly incapacitated person due to his or her incapacity faces a substantial risk of death or immediate serious physical or mental harm to himself or herself, or immediate serious physical harm to others; or there is a substantial risk that irreparable harm will occur to valuable property owned or controlled by the allegedly incapacitated person.
VI-a. "Expedited hearing" means a hearing held within 15 days of the filing of the petition or such other time period as justice requires.
VI-b. "Family guardian" means a competent person who provides guardianship services to a ward and who is related to the ward by blood, adoption, marriage, or civil union. The guardian may receive reimbursement of expenses and a reasonable stipend with court approval.
VII. "Functional limitations" means behavior or conditions in an individual which impair his or her ability to participate in and perform minimal activities of daily living that secure and maintain proper food, clothing, shelter, health care or safety for himself or herself.
VIII. "Guardian of the person" means one appointed by the court to have care and custody of the incapacitated person as specified by a court order.
IX. "Guardian of the estate" means one appointed by the court to manage the estate of the incapacitated person as specified by a court order.
X. "Immediate" means a strong likelihood that an event will occur within 72 hours.
XI. "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. 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. All evidence of inability must have occurred within 6 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. Evidence of such filing shall be the date the petition was mailed to the court, as evidenced by a receipt from the United States Postal Service or, if hand delivered, by the court's date stamp on the petition. Isolated instances of simple negligence or improvidence, lack of resources or any act, occurrence or statement if that act, occurrence or statement is the product of an informed judgment shall not constitute evidence of inability to provide for personal needs or to manage property.
XII. "Informed judgment" means a choice made by a person who has the ability to make such a choice, and who makes it voluntarily after all relevant information necessary to making the decision has been provided, and who understands that he is free to choose or refuse any alternative available and who clearly indicates or expresses the outcome of his choice.
XIII. "Interested person" means any adult who has an interest in the welfare of the person to be protected under this chapter.
XIV. "Least restrictive form of intervention" shall mean that the guardianship imposed on the ward represents only those limitations necessary to provide him or her with needed care and rehabilitative services, and that the ward shall enjoy the greatest amount of personal freedom and civil liberties consistent with his or her mental and physical limitations.
XIV-a. "Net amount" means the amount of settlement, judgment and related interest and taxable costs, or decree received after the deduction of attorney's fees, court costs, and other expenses related to the claim.
XIV-b. "Professional guardian" means a competent person who provides guardianship services for a fee to a ward and who is not related to the ward by blood, adoption, marriage, or civil union. To be eligible for appointment, a professional guardian shall meet criteria established by the administrative judge of the probate court.
XV. "Prudent management" means the standard of care that would be observed by a prudent person dealing with the property of another.
XV-a. "Volunteer guardian" means a competent person who provides guardianship services to no more than 2 wards at the same time and who is not related to the ward by blood, adoption, marriage, or civil union. The guardian may receive reimbursement of expenses and a reasonable stipend with court approval.
XVI. "Ward" means a person for whom a guardian of the person and the estate, or the person, or estate, has been appointed.
Source. 1979, 370:1. 1988, 289:2. 1992, 284:7. 1993, 82:1; 152:1. 2008, 93:3. 2009, 132:1-3. 2015, 23:2, eff. May 5, 2015. 2021, 206:2, Pt. VI, Sec. 12, eff. Oct. 9, 2021.
Section 464-A:3
464-A:3 Jurisdiction and Venue. –
I. The probate court shall have exclusive jurisdiction over the appointment of a guardian of the person or of the estate or of both of any incapacitated person.
II. (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.
(b) If the proposed ward is admitted to an institution pursuant to an order of a court of competent jurisdiction, or is a resident of an institution for a period of at least one year, venue is also in the county in which that institution is located.
(c) In proceedings to create a guardianship of the estate containing real property, venue may also be in a county in which the real property, or a portion thereof, of the proposed ward is located.
Source. 1979, 370:1. 1981, 564:1. 1993, 152:2. 1998, 155:2. 2010, 288:2, eff. Jan. 1, 2011.
Section 464-A:4
464-A:4 Procedure for Court Appointment of a Guardian of an Incapacitated Person. –
I. Any relative, public official, or interested person, or any individual in his or her own behalf may file a verified petition for finding of incapacity and appointment of a guardian of a person and estate, or the person, or estate.
II. The petition for appointment of a guardian of the person and estate, or the person, or estate, shall state:
(a) The name, address, corporate or agency status of the petitioner and connection with or relationship to the proposed ward;
(b) The name, age, and address of the proposed ward;
(c) When appropriate, the name and address of the person or institution having care or custody over the proposed ward;
(d) The names and addresses of adult spouses, parents, children and siblings of the proposed ward, so far as they are known to the petitioner;
(e) A brief description and the approximate value of the real and personal property and income of the proposed ward so far as they are known to the petitioner;
(f) The nature of the guardianship sought, whether over the person and estate, or person, or estate;
(g) The name, address, occupation and relationship to the proposed ward, if any, of the proposed guardian;
(h) The name and address of counsel, if any, for the proposed ward; and
(i) The length of time for which the appointment of a guardian is requested, whether for an indefinite or limited period of time.
III. A statement shall be filed with the petition for appointment of the guardian of the person and estate, or the person, or estate, containing facts showing the necessity for the appointment of a guardian of the person and estate, or the person, or estate of the proposed ward, including specific factual allegations as to the proposed ward's financial transactions, personal actions or actual occurrences which are claimed to demonstrate his or her inability to manage an estate, or to provide for personal needs for health care, food, clothing, shelter, or safety.
IV. When an expedited hearing is requested, an affidavit by the petitioner, or in the case of a medical emergency, by the proposed ward's physician, shall be filed with the petition setting forth the reasons an expedited hearing is necessary.
V. (a) In all guardianships of the person, except when an agency or institution is named as the proposed guardian, the court shall review the proposed guardian's record of criminal convictions maintained by the New Hampshire division of state police.
(b) The petitioner shall file a release provided by the court and signed by the proposed guardian authorizing the release of any record of criminal convictions. The court may, in its discretion, accept a petition without the signed release and may appoint a guardian prior to receiving the proposed guardian's record of criminal convictions. When the court appoints a guardian prior to the receipt of the record of criminal convictions, the court shall review the record upon receipt and may reexamine the appointment of the guardian based on the information contained in the record.
(c) The court may, in its discretion, request a search of the abuse and neglect registry maintained by the department of health and human services.
(d) The court may, in its discretion, request the same information from similar agencies in other states as appropriate.
Source. 1979, 370:1. 1981, 564:2. 1993, 152:3, 4. 2001, 146:3, eff. Jan. 1, 2002.
Section 464-A:4-a
464-A:4-a Nomination of Guardian for Incapacitated Persons for Whom Activated Member of the Armed Services is Guardian. –
I. Any member of the United States armed services, whether a member of an active component, reserve component, or national guard unit of the army, air force, navy, marines, or coast guard who is ordered to active duty outside of the state of New Hampshire with the armed forces of the United States or state militia of any state and who is the guardian of an incapacitated person may nominate a successor guardian of the person with the same powers and duties of a guardian of the person under RSA 464-A:25.
II. The document nominating the guardian shall have the effect of an order appointing a temporary guardian under RSA 464-A:12, except that it shall expire 7 days after activation or when a guardianship has been granted by the court, whichever is sooner. Upon activation, the individual nominated guardian shall petition for appointment of a guardian of the person within 7 days in the county where the original guardianship was granted. The petitioner shall append to the petition copies of the nomination document and the member's activation orders. The petition for appointment of a guardian shall be processed, heard, and adjudicated in the same manner as other guardianships filed under this chapter. All fees for the filing of the petition for the appointment of a guardian under this section shall be waived.
III. Nomination of a guardian of the person by an activated member of the armed services shall be made by using a properly executed nomination document to which a certified copy of the existing guardianship order shall be attached. The document nominating the guardian shall contain the following:
(a) Name and address of the armed forces member.
(b) Name and address of the person nominated the guardian.
(c) Name and address of the ward.
(d) The following language:
Know all persons that I __________ , currently residing at __________ , by this document do consent to the appointment of __________ , whose address is __________ , as the successor guardian of __________ , thereby waiving notice of the petition. This document shall grant the person nominated the same powers and duties of a guardian of the person under RSA 464-A:25 for 7 days from the date of my activation or until the probate court grants a guardianship, whichever is sooner. A copy of my activation orders must accompany this document for it to be valid.
IV. The legal guardian's signature shall be witnessed by a third party and the signatures of the witness and legal guardian shall be acknowledged by a notary public.
V. Upon receipt of a petition to terminate a substitute guardianship created under this section filed by the service member, the court shall terminate the substitute guardianship.
Source. 2002, 239:3, eff. May 17, 2002.
Section 464-A:5
464-A:5 Notice; Notice in Case of Expedited Hearing. –
I. Upon filing of the petition, orders of notice shall issue. The orders of notice shall be given in language reasonably understandable by the proposed ward and shall be personally served on the proposed ward not less than 14 days before the date for the hearing set by the court. The orders of notice shall contain the date, time, and place set for the hearing on the petition before the court. The orders of notice shall contain information regarding the nature, purpose, and legal effects of the appointment of a guardian of the person and estate, or the person, or estate. Notice shall further contain information regarding the rights of the proposed ward in the proceedings: the rights to oppose the proceeding, to attend the hearing, to present evidence and to be represented by counsel. Orders of notice shall contain a copy of the petition and any statement filed with the petition under RSA 464-A:4, III.
II. The orders of notice shall include a statement in 10 point or larger bold face type conspicuously enclosed within a dark border. The name of the attorney given in the statement shall be that of the attorney, if any, listed on the petition under RSA 464-A:4, II(h). If no attorney was listed on the petition, the name of a court appointed attorney shall be given. The statement shall be as follows:
Important: You have a right to contest this petition and to be represented by a lawyer. The name of your lawyer or, if you have no lawyer, the name of a court appointed lawyer appears below. If you cannot afford to pay lawyer fees, they will be paid for you. The lawyer named below will soon contact you to discuss this matter.
| Lawyer's name: | Address: | Telephone: |
III. Orders of notice and copies of the petition and any statement required under RSA 464-A:4, III, shall be sent by first class mail or served by delivery to the office of any court appointed attorney or of the attorney retained by the proposed ward within 24 hours of the appointment by the court or of the notification to the court of the name and address of the attorney.
IV. Orders of notice of the hearing shall issue by first class mail not less than 14 days before the date set for the hearing, to:
(a) The relatives whose names and addresses appear on the petition for guardianship;
(b) The proposed guardian if the proposed guardian is not the petitioner;
(c) The petitioner;
(d) The medical director of a state or private institution if the proposed ward is a patient in, or on leave from, said institution.
IV-a. Notwithstanding the provisions of this section, if the petitioner requests an expedited hearing the court shall determine whether the proposed ward may require urgent medical treatment or whether any other circumstance is alleged to exist which requires an expedited hearing. If the request for an expedited hearing is granted, the court shall schedule such hearing in such manner and time as may be just and issue orders of notice to the proposed ward, the ward's attorney, relatives of the proposed ward listed in the petition, the proposed guardian, the petitioner and any persons the court deems appropriate.
V. Orders of notice of the hearing shall be published when the court finds in its judgment that publication is reasonably called for.
Source. 1979, 370:1. 1981, 564:3. 1993, 152:5, 6, eff. Jan. 1, 1994.
Section 464-A:6
464-A:6 Right to Counsel. –
I. The right to legal counsel for any person for whom a temporary guardian or guardianship of the person and estate, or person, or estate, is sought shall be absolute and unconditional. If the proposed ward does not have his or her own counsel, the court shall appoint counsel for the proposed ward immediately upon the filing of a petition for guardianship of the person and estate, or the person, or estate. The judicial council shall pay the cost of such appointment, including counsel and investigative, expert, or other services and expenses necessary to provide adequate representation, from funds appropriated for indigent defense pursuant to RSA 604-A. Prior to obtaining investigative, expert, and other services necessary to provide adequate representation, counsel shall apply to the court and, upon finding that such services are necessary and that the person is financially unable to obtain them, the court shall authorize counsel to obtain the necessary services on behalf of the person for whom temporary guardian or guardianship of the person and estate, or person or estate, is sought.
II. Appointed counsel shall inform the proposed ward that he or she shall be liable for attorney fees unless he or she is found indigent by the probate court. The appointed counsel for the proposed ward shall be compensated for his or her services at a rate as determined by the New Hampshire supreme court.
Source. 1979, 370:1. 1981, 564:4, eff. Aug. 29, 1981. 2021, 207:2, Pt. V, Sec. 2, eff. Oct. 9, 2021.
Section 464-A:7
464-A:7 Repealed by 1981, 564:23, eff. Aug. 29, 1981. –
Section 464-A:8
464-A:8 Conduct of Hearing. –
I. If the proposed ward is within the state and able to attend, he or she must be present at the hearing unless excused under the provisions of this chapter. If the proposed ward is not within the state, but is a resident of the state, and if the court determines that his or her attendance at the hearing is in the best interest of the proposed ward, the court may order him or her to attend the hearing.
II. The court may waive personal attendance of the proposed ward at the hearing when the petitioner or the counsel for the proposed ward files a written statement with the court at least 24 hours prior to the hearing indicating that the proposed ward does not express a desire to attend the hearing; provided, however, that upon a showing that the proposed ward first expressed a desire not to attend the hearing at such a time as to make it unreasonable to require the filing of the written statement at least 24 hours prior to the hearing, then the court may waive personal attendance of the proposed ward at the hearing upon the filing of the required written statement at any time up to the time of the hearing. Any statement filing in connection with a hearing under this paragraph shall include a physician's affidavit indicating that the overall physical, emotional, or psychological condition of the proposed ward is such that he or she is likely to suffer harm or that the proposed ward has no ability to understand the nature and consequences of the proceedings.
II-a. If the proposed ward fails to attend the hearing, and if the proposed ward's attendance is not waived by the court under the provisions set forth in paragraph II, the court may continue the hearing and order the proposed ward to attend the continued hearing. The continued hearing shall be held within 30 days thereafter. The court may waive personal attendance of the proposed ward at the continued hearing when the petitioner or the counsel for the proposed ward files a written statement with the court at least 24 hours prior to the continued hearing indicating that the proposed ward does not express a desire to attend the continued hearing; provided, however, that upon a showing that the proposed ward first expressed a desire not to attend the continued hearing at such a time as to make it unreasonable to require the filing of the written statement at least 24 hours prior to the continued hearing, then the court may waive personal attendance of the proposed ward at the continued hearing upon the filing of the required written statement at any time up to the time of the continued hearing.
III. The medical affidavit shall be evidence only of the proposed ward's inability to attend the hearing and shall not be considered in determining his or her incapacity. If the proposed ward is a patient at a county nursing home, or state hospital, the affidavit shall be by the medical director or medical superintendent of such county nursing home or state hospital.
IV. The rules of evidence shall apply and no hearsay evidence which is not otherwise admissible in a court of law shall be admitted into evidence except as otherwise provided in this chapter. In such proceedings, there is a legal presumption of capacity, and the burden of proof shall be on the petitioner to prove the allegations set forth in the petition by competent evidence. Such proof must be established beyond reasonable doubt that the proposed ward is incapacitated and in need of a guardian.
V. A record of the proceedings shall be made if requested by the proposed ward or the proposed ward's attorney, or when ordered by the court.
VI. Records, reports, and evidence submitted to the court or recorded by the court shall be confidential.
VII. The issue as to whether a guardian should be appointed for the proposed ward shall be determined by the court at a closed hearing unless the proposed ward or counsel for the proposed ward otherwise requests.
Source. 1979, 370:1. 1981, 564:5. 1986, 123:1. 1988, 107:3. 2013, 66:1, eff. July 1, 2013. 2022, 272:57, eff. June 24, 2022.
Section 464-A:9
464-A:9 Findings. –
I. The court, at a hearing convened under this chapter, shall:
(a) Inquire into the nature and extent of the functional limitations of the proposed ward; and
(b) Ascertain his or her capacity to care for himself or herself or his or her estate.
II. If it is determined that the proposed ward possesses the capacity to care for himself or his estate, the court shall dismiss the petition.
III. Alternatively, the court may appoint a guardian of the person and estate, or the person or the estate, as requested in the petition and confer specific powers of guardianship on the proposed guardian, or appoint co-guardians, one of the person and one of the estate, after finding in the record based on evidence beyond a reasonable doubt that:
(a) The person for whom a guardian is to be appointed is incapacitated; and
(b) The guardianship is necessary as a means of providing continuing care, supervision, and rehabilitation of the individual, or the management of the property and financial affairs of the incapacitated person; and
(c) There are no available alternative resources which are suitable with respect to the incapacitated person's welfare, safety, and rehabilitation or the prudent management of his or her property and financial affairs; and
(d) The guardianship is appropriate as the least restrictive form of intervention consistent with the preservation of the civil rights and liberties of the proposed ward.
III-a. If a petition is filed pursuant to RSA 464-A:4 for the appointment of a guardian of the person or of the person and the estate for a person admitted for in-patient treatment on an involuntary emergency basis as provided in RSA 135-C:27-33 or on an involuntary basis as provided in RSA 135-C:34-54, the probate court shall render a decision on such petition in accordance with the provisions of this chapter within 45 calendar days of the filing of the petition.
III-b. When a petition seeks appointment of a guardian for a limited period of time, the probate court may dismiss the petition, grant the petition, or appoint a guardian for a shorter period of time than sought in the petition. The court shall not appoint a guardian for a period of time longer than the time sought in the petition.
IV. No person determined to be incapacitated thus requiring the appointment of a guardian of the person and estate, or the person, or the estate, shall be deprived of any legal rights, including the right to marry, to obtain a motor vehicle operator's license, to testify in any judicial or administrative proceedings, to make a will, to convey or hold property, or to contract, except upon specific findings of the court. The court shall enumerate in its findings which legal rights the proposed ward is incapable of exercising.
V. No individual shall be committed to any mental health facility or state institution solely because he or she has been declared incompetent for the purpose of appointing a guardian.
VI. The court may dismiss the proceedings or enter any other appropriate order consistent with the findings of this section.
Source. 1979, 370:1. 1983, 307:1. 1993, 152:7. 1994, 248:5, eff. June 2, 1994.
Section 464-A:10
464-A:10 Who May be Guardian. –
I. Any person who agrees to so serve may be appointed guardian of the person and estate, or the person, or the estate including:
(a) A family guardian or volunteer guardian;
(b) A professional guardian; or
(c) A public guardianship and protection program as described in RSA 547-B.
II. A bank having trust powers or a trust company may be appointed guardian of the estate.
III. An institution or agency providing care and custody of the incapacitated person may not be appointed guardian, unless no one else can be found to serve as guardian; then an employee of the institution or agency may be appointed guardian if he or she does not provide direct care to the proposed ward, provided that the court makes a specific finding that such appointment presents no substantial risk of a conflict of interest.
IV. (a) Any competent person may nominate one or more persons to be guardian of his or her person or estate, or both his or her person and estate, and one or more substitutes in case of a nominee's inability to serve by a written instrument, executed in accordance with the requirements of RSA 477:9, and may name in such instrument any persons, other than a public guardianship and protection program, the person wishes to exclude from consideration as guardian.
(b) Such nomination and exclusion shall continue until revoked, shall be effective for guardianships and temporary guardianships under RSA 464-A:12, and shall survive the subsequent mental or physical disability or incompetence of the signer.
(c) A qualified person nominated as guardian who is willing to serve shall be appointed unless the court finds that such person would not be able to carry out the reasonably foreseeable duties of a guardian in the particular circumstances.
(d) Under no circumstances shall the court appoint as guardian a person excluded from consideration by name in the instrument.
(e) This paragraph shall be construed to create a rebuttable presumption that the person nominated as guardian shall be so appointed.
(f) This paragraph shall not be construed to limit the ability of the court to remove any guardian appointed under this chapter.
Source. 1979, 370:1. 1981, 564:6. 1983, 409:5. 1989, 235:1. 2009, 132:4, eff. Aug. 28, 2009.
Section 464-A:11
464-A:11 Letters of Guardianship. –
I. A copy of the order appointing the guardian shall be given in hand or mailed by first class mail to the ward and the ward's counsel. The court may order service by other means if it deems appropriate. The order shall contain the name and address of the guardian. The order shall also contain notice of the ward's right to appeal the guardianship appointment and of his or her right to seek alteration or termination of the guardianship at any time.
II. Letters of guardianship shall contain:
(a) The name, address and telephone number of the guardian of the person and estate, or the person, or the estate;
(b) The name, address and telephone number of the ward;
(c) The nature and scope of the guardianship, whether over the person and estate, or the person, or the estate;
(d) The specific legal limitations imposed by the court on the powers of the guardian.
III. Said letters shall issue to the guardian. Copies shall be mailed to the ward, the ward's counsel, the petitioner, and the institution of residence of the ward and any other person, institution, organization or agency which the court deems that it is reasonable to notify under the circumstances of the guardianship.
Source. 1979, 370:1. 1981, 564:7. 1995, 277:4, eff. Aug. 19, 1995.
Section 464-A:11-a
464-A:11-a Extension of Guardianship. –
A guardian or petitioner may seek an extension of a guardianship appointment by formally petitioning the court for a guardianship of the person and estate, the person, or estate within the period of any existing guardianship. Upon the filing of a petition for guardianship, a petition for an additional term of guardianship, a petition for an indefinite term of guardianship, or a petition for an amendment of the order or letters of guardianship to extend the term of the guardianship, the period of guardianship shall be extended until the issuance of the order of the probate court; provided that the probate court shall act upon the petition within 30 days of orders of notice being issued.
Source. 1995, 212:2. 2005, 90:1, eff. Aug. 6, 2005.
Section 464-A:12
464-A:12 Temporary Guardian. –
I. Any relative, public official, or interested person may file a verified petition for a temporary guardian of the person and estate, or the person, or the estate. Said petition shall contain:
(a) All the information required in RSA 464-A:4;
(b) The reasons the petitioner believes the proposed ward is in need of a temporary guardian;
(c) The reasons why the petitioner believes the regular procedure for obtaining guardianship of the person and estate, or the person, or the estate, is not appropriate.
II. The court may, with such notice as it deems reasonable to the proposed ward and the court appointed counsel or the proposed ward's private counsel, appoint a temporary guardian for an incapacitated person. The appointment shall be limited to the performance of duties respecting specific property, or to the performance of particular acts necessary to prevent immediate serious physical or mental harm to the proposed ward or immediate serious physical harm to others. The temporary guardian of the person and estate, or the estate, shall file an inventory within 30 days after the termination of the guardianship, or be in default. The temporary guardian shall file an account within 90 days after the termination of the guardianship, or be in default. Within 10 days after the temporary guardian's default, the clerk shall give notice to the fiduciary of the default by first class mail. The temporary guardian shall not file an annual report. No term of temporary guardianship shall exceed 60 days, unless for good cause shown and within the discretion of the court.
III. No temporary guardian shall seek an extension of that appointment without formally petitioning the court for a guardianship of the person and estate, or the person, or estate within the 60 day period of temporary guardianship.
IV. If the counsel for the proposed ward or the proposed ward opposes the appointment of a temporary guardian under this section, the court may not appoint said temporary guardian without a hearing pursuant to RSA 464-A:8 and without findings pursuant to RSA 464-A:9. The proposed temporary guardian, the petitioner, the proposed ward, and the counsel for the proposed ward shall be present at said hearing and the court shall determine the necessity for the appointment of a temporary guardian. The burden of proof to show need for a temporary guardian shall be on the petitioner.
V. Appointment of a temporary guardian shall not have the effect of an adjudication of incapacity or effect of limitation on the legal rights of the individual other than those specified in the court order. Appointment of a temporary guardian shall not be evidence of incapacity in the petition, hearing or finding, for regular guardianship powers under RSA 464-A:4, 464-A:8 and 464-A:9.
VI. The appointment of a guardian pursuant to RSA 464-A:9 terminates the powers of a temporary guardian appointed under this section, except for the rendering of the final account of the temporary guardian.
Source. 1979, 370:1. 1981, 564:8. 1996, 265:2. 2001, 146:5. 2011, 88:20, eff. July 1, 2011.
Section 464-A:13
464-A:13 Appointment of Conservators for Persons Incapable of Managing Own Affairs. –
I. When a person deems himself unfit by reasons of mental or physical disability for the prudent management of his property and financial affairs, he may apply to the probate court for the appointment of a conservator of his property.
II. The court shall, upon notice to the person to be protected and the person nominated as conservator, hold a hearing to determine that:
(a) The person has voluntarily applied for the appointment of a conservator;
(b) The person has voluntarily chosen the person nominated as conservator.
The person to be protected and the person nominated as the conservator shall be present at said hearing.
III. If the court has reason to question the voluntariness of the application of the person who seeks the appointment of a conservator or the voluntariness of a person to become conservator, the court shall appoint counsel for the person to be protected in the same manner as provided in RSA 464-A:6.
Source. 1979, 370:1. 1981, 564:9, eff. Aug. 29, 1981.
Section 464-A:14
464-A:14 Who Shall be Conservator. –
If the court determines that the person to be protected has voluntarily applied for appointment of a conservator and has voluntarily nominated his conservator, the court may appoint the nominee as conservator for the person to be protected. If, for good cause shown at the hearing, the court determines that appointment of the proposed conservator is not in the best interests of the person to be protected, the court shall have the authority to nominate another person as conservator and, with the approval of the person to be protected, appoint said person as conservator.
Source. 1979, 370:1, eff. Aug. 22, 1979.
Section 464-A:15
464-A:15 Bond; Notice. –
Such conservator shall give bond to the judge of probate, with sufficient sureties, give notice of his appointment as guardians are required to do and be subject to all provisions of law now in force as to guardians as far as they apply to estates of their wards, pursuant to this chapter; provided, however, that the court need not, but may appoint an attorney or other suitable person to review an account of a conservator and to represent the interests of the protected person.
Source. 1979, 370:1. 1981, 564:10, eff. Aug. 29, 1981.
Section 464-A:16
464-A:16 Termination of Conservatorship. –
At any time upon petition signed by the protected person, the court shall direct the termination of the conservatorship and the transfer of all property held thereunder to the protected person. Likewise, if at any time subsequent to the appointment of a conservator it shall appear that the protected person has died and an executor or administrator has been appointed for his or her estate, the court shall direct the termination of the conservatorship and the transfer of all property of the deceased person held thereunder to such executor or administrator.
Source. 1979, 370:1, eff. Aug. 22, 1979.
Section 464-A:17
464-A:17 Appointment for Absentees. –
Whenever an absentee has an interest in any form of property in this state or is a legal resident of this state and has not provided an adequate power of attorney authorizing another to act in his or her behalf in regard to such property or interest, then, the probate court of the county of such absentee's legal domicile or of the county where the property is located, either on the court's own motion or upon petition alleging the foregoing facts and showing the necessity for providing care of the property of such absentee made by any person who would have an interest in the property of the absentee were such absentee deceased, after notice to, or on receipt of proper waivers from, the heirs and next of kin of the absentee as provided by law for the administration of an estate, as well as notice by publication once in a newspaper of general circulation in the county of such absentee's legal domicile or of the county where the property is located and, if in a different county, once in a newspaper of general circulation of the county where such absentee was last seen, and upon good cause being shown, may, after finding the facts to be as aforesaid, appoint a conservator to take charge of the absentee's estate, under the supervision and subject to the further orders of the court.
Source. 1979, 370:1. 1992, 284:8, eff. Jan. 1, 1993.
Section 464-A:18
464-A:18 Bond; Powers of Absentee Conservator. –
The court shall have full discretionary authority to appoint any suitable person as absentee conservator and may require such conservator to post an adequate surety bond and to make such reports as the court may deem necessary. The absentee conservator shall have the same powers and authority as the guardian of the property of a minor incapacitated person.
Source. 1979, 370:1, eff. Aug. 22, 1979.
Section 464-A:19
464-A:19 Termination of Absentee Conservatorship. –
At any time upon petition signed by the absentee or on petition of an attorney-in-fact acting under an adequate power of attorney granted by the absentee, the court shall direct the termination of the conservatorship and the transfer of all property held thereunder to the absentee or to the designated attorney-in-fact. Likewise, if at any time subsequent to the appointment of a conservator it shall appear that the absentee has died or an executor or administrator has been appointed for his estate, the court shall direct the termination of the conservatorship and the transfer of all property of the deceased absentee held thereunder to such executor or administrator.
Source. 1979, 370:1, eff. Aug. 22, 1979.
Section 464-A:20
464-A:20 Authorization of Action by Spouse or Next of Kin. –
In the absence of appointment of a conservator for an absentee under RSA 464-A:17, the spouse of any absentee as defined in RSA 464-A:2, or the next of kin if the absentee has no spouse, may apply to the probate court for authority to act with respect to a particular item or portion of the absentee's property, or a particular matter requiring the consent of the absentee regarding the absentee's children, or any other particular matter requiring consent or action on behalf of the absentee, in accordance with the following:
I. Where the value of the property or other subject matter is less than $5,000, the application shall set forth, under oath, the following: the name of the applicant, the applicant's relation to the absentee; the exact circumstances under which the absentee qualifies as such, including the date the absentee was first known to be missing, interned, beleaguered, besieged or captured; a description of the property or other matter for which the applicant seeks authority to act; the value thereof; the reason for which the applicant seeks authority to act; and the action which the applicant proposes. The court shall, without hearing or notice, approve the application if it deems the proposed action to be in the best interest of the absentee or of his or her dependents. A copy of the application with the court's approval thereon, certified by the clerk, shall constitute prima facie evidence of the validity of the proceeding and the authority of the applicant to act in accordance with the approved application. The clerk shall provide up to 5 such copies to the applicant, free of charge.
II. Where the value of the property or other subject matter is $5,000 or more, the application shall set forth, under oath, in addition to the information required in paragraph I, the following: the names, addresses and ages of the spouse, children, father, mother, brothers, sisters, or if none of these are living, the next of kin of the absentee; the names, addresses and ages of any other person who would have an interest in the property or the estate of the absentee if he or she were deceased; whether or not the absentee has a will and its whereabouts and contents if known; and a statement of all property of the absentee and the approximate value of same. Upon receipt of the application, the court shall schedule a hearing thereon and give notice to all persons named in the application by registered mail and by publication as provided in RSA 464-A:17. The court may appoint guardians ad litem to represent the absentee or other interested persons under disability in connection with the hearing. If after the hearing the court finds the matters set forth in the application to be true and further finds that the proposed action should be authorized and that there is no necessity for the appointment of a conservator, the court shall grant the authority applied for. The court may impose reasonable conditions to safeguard the proceeds of any transaction authorized, or otherwise to protect the interest of the absentee or his dependents, but third persons dealing in good faith with the person authorized to act shall not be held responsible for compliance with any such conditions the court may impose.
Source. 1979, 370:1. 1992, 284:9. 2011, 88:20, eff. July 1, 2011.
Section 464-A:21
464-A:21 Bond. –
Upon appointment, the guardian of the person and estate, or the person, or the estate, shall give bond to the probate court, with sufficient sureties, in such sum as the judge shall approve. In the discretion of the judge of probate, a bond without sureties may be given if the gross value of the ward's estate does not exceed $10,000 or the guardianship is only of the person of an incapacitated person or a minor. Unless otherwise determined by the court, the bond must be in the amount of the aggregate capital value of the property of the estate in the guardian's control, plus one year's estimated income, and minus the value of securities or other assets deposited under arrangements requiring an order of the court for their removal and the value of any land which the fiduciary, by express limitation of power, lacks power to sell or convey without court authorization.
Source. 1979, 370:1. 1995, 277:5, eff. Aug. 19, 1995.
Section 464-A:22
464-A:22 Inventory. –
When a guardian of the estate has been appointed, an inventory shall be made in the same manner and subject to the same requirements as inventories of the estates of persons deceased are made pursuant to RSA 554. An appraisal of all or any part of the ward's estate shall be made when ordered by the court.
Source. 1979, 370:1, eff. Aug. 22, 1979.
Section 464-A:23
464-A:23 Compensation. –
Every guardian shall be allowed a reasonable compensation for all proper expenses and services in the discharge of the guardianship. Administrative expenses approved by the court, including but not limited to guardianship fees, legal fees, and appraisal costs shall be paid out of the estate of the ward as a priority over other debts and obligations of the ward to the extent that funds are available and the needs of the ward are being met. The balance of the account due to the guardian shall be a lien upon all of the estate of the ward, real and personal, not disposed of. After a person ceases to be guardian, he or she may maintain an action for the recovery of said money owed for expenses and services.
Source. 1979, 370:1. 2002, 48:1, eff. Jan. 1, 2003.
Section 464-A:24
464-A:24 Agent. –
Every resident guardian who removes from the state, or who goes out of the state with intention of being absent more than a year, and every resident of another state who is appointed guardian within this state, shall forthwith appoint some person residing in the state as his agent to receive service of legal process against him as guardian. The appointment shall be made and renewed as in the case of agents of foreign administrators and with like authority and effect; and failure to appoint shall be cause for the removal of the guardian.
Source. 1979, 370:1, eff. Aug. 22, 1979.
Section 464-A:25
464-A:25 General Powers and Duties of Guardian of the Person. –
I. A guardian of an incapacitated person has the following powers and duties, except as modified by order of the court:
(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 or other designated receiving facility shall be in accordance with the following:
(1) A guardian may admit a ward to a state institution or other designated receiving facility 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 or other designated receiving facility 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 or other designated receiving facility without prior approval of the probate court upon written certification by a licensed physician, a licensed advanced practice registered nurse, or a licensed physician assistant, licensed in the state of New Hampshire, or, in the case of placement in New Hampshire hospital or other designated receiving facility, by a psychiatrist licensed in the state of New Hampshire, a psychiatrist-supervised physician assistant licensed in this state, or an advanced practice registered nurse, as defined in RSA 135-C:2, II-a, 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 or other designated receiving facility, the guardian shall submit to the applicable county probate court notice of the admission and the reasons therefor, together with a copy of the certificate by the physician, psychiatrist, physician assistant, or advanced practice registered nurse.
(3) The applicable 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 or other designated receiving facility. 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 or other designated receiving facilities 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 or other designated receiving facility 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 or other designated receiving facility 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 or other designated receiving facility for more than 60 days for any single admission or more than 90 days in any 12-month period upon certification of a physician, psychiatrist-supervised physician assistant, or psychiatrist, or an advanced practice registered nurse as defined in RSA 135-C:2, II-a, 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 or other designated receiving facility 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.
(b) If entitled to custody of the ward, a guardian shall make provision for the care, comfort and maintenance of the ward, and, whenever appropriate, arrange for the ward's training, education or rehabilitation. The guardian shall take reasonable care of the ward's clothing and personal effects.
(c) A guardian shall file an annual report with the probate court, unless the court finds that such report is not necessary.
(d) A guardian of the person may give any necessary consent or approval to enable the ward to receive medical or other professional care, counsel, treatment, or service or may withhold consent for a specific treatment, provided, that the court has previously authorized the guardian to have this authority, which authority shall be reviewed by the court as part of its review of the guardian's annual report. No guardian may give consent for psychosurgery, electro-convulsive therapy, sterilization, or experimental treatment of any kind unless the procedure is first approved by order of the probate court.
(e) If a ward has previously executed a valid living will, under RSA 137-J, a guardian shall be bound by the terms of such document, provided that the court may hold a hearing to interpret any ambiguity in such document. If a ward has previously executed a valid durable power of attorney for health care, RSA 137-J shall apply.
(f) Upon a finding that ensuring treatment compliance is in the best interest of a ward, the probate court may authorize a guardian appointed pursuant to RSA 464-A, to request the assistance of any law enforcement official to restrain or transport, or both, the ward to receive appropriate treatment.
(g) A guardian may authorize a health care provider to restrain or forcibly administer treatment, or both, to the ward, subject to any limitations imposed by the court.
(h) A guardian shall act with respect to the ward in a manner which safeguards to the greatest extent possible the civil rights of the ward, and shall restrict the personal freedom of the ward only to the extent necessary.
II. The court may limit the powers of the guardian of the person or impose additional duties if it deems such action desirable for the best interests of the ward.
Source. 1979, 370:1. 1983, 409:6. 1990, 212:1. 1993, 152:8. 2005, 67:1. 2006, 302:4. 2010, 288:1. 2015, 144:3, 4, eff. June 12, 2015. 2018, 343:9, eff. July 1, 2018. 2019, 278:10, 11, eff. Sept. 17, 2019.
Section 464-A:26
464-A:26 General Powers and Duties of Guardian of the Estate. –
I. The guardian of the estate shall take possession of all of the ward's real and personal property, and of all rents, income, and benefits therefrom, whether accruing before or after his or her appointment, and of the proceeds arising from the sale, mortgage, lease or exchange thereof. Subject to such possession, the title of all such estate and to the increment and proceeds thereof shall be in the ward and not in the guardian. It is the duty of the guardian of the estate to protect and preserve it, to retain, sell and invest it as hereinafter provided, to prosecute or defend actions, claims or proceedings in any jurisdiction for the protection of the estate's assets, to account for it faithfully, to perform all other duties required by law, and at the termination of the guardianship to deliver the assets of the ward to the persons entitled thereto. The guardian of the estate shall apply the money and property for the support, care, and education of the ward, but, the guardian may not use funds from the ward's estate for room and board which the guardian or his or her spouse, parent, or child have furnished the ward unless a charge for the service is approved by order of the court made upon notice to at least one of the next of kin of the ward, if notice is possible. The guardian may institute proceedings to compel any person or agency under a duty to support the ward, or a duty to pay sums for the welfare of the ward, to perform this duty.
II. Except as limited by statute or order of the court, the guardian of the estate shall have the power to perform, without court authorization, every act which persons of prudence, discretion and intelligence and exercising judgment and care as in the management of their own affairs would perform for the purposes of the guardianship, including, but not limited to, the powers specified in RSA 564-B:8-816.
III. Every guardian shall take a receipt of the ward or of his or her legal representative, to whom the guardian shall pay or deliver the property of the ward, and shall file the same in the probate office, to be there recorded and preserved. The time of its being so filed shall be certified upon the clerk.
IV. Any guardian may be cited by the judge for failure to file such receipt in the probate office. If he neglects or refuses to do so he may be found in contempt and fined up to $5 per day, unless the judge, after a hearing, shall certify the reason of the omission to be sufficient. All fines collected under this section shall be for the benefit of the county in which the fine is paid.
V. A guardian of the estate shall be required to file an annual account with the probate court pursuant to this chapter, unless the court finds that it is not appropriate. The court may limit the powers of the guardian of the estate or impose additional duties if it deems such action desirable in the best interests of the ward. With respect to guardians of the estate appointed pursuant to RSA 464-A:42, the court may limit the duties of the guardian of the estate if it deems such actions appropriate in the best interests of the child.
VI. [Repealed.]
Source. 1979, 370:1. 1981, 564:11. 1993, 190:1. 1995, 277:6, 26, I. 2004, 130:7. 2011, 88:20, eff. July 1, 2011.
Section 464-A:26-a
464-A:26-a Estate Planning by Guardian. –
I. The probate court may authorize the guardian of the estate to make lifetime gifts, to allocate income, and/or to plan for the testamentary distribution of the ward's estate consistent with the ward's wishes. If the ward's wishes cannot be ascertained, the probate court may authorize the guardian of the estate to plan for the testamentary distribution of the ward's estate in order to minimize taxation or to facilitate distribution of the ward's estate to family, friends, or charities who would be likely recipients of gifts from the ward.
II. Before authorizing a guardian to make lifetime gifts or to allocate income, the probate court shall consider the ward's present and anticipated future expenses for maintenance, support, and medical care, any current or future debts of the ward, and any duty or legal obligation of the ward to support a spouse or dependent family members.
III. The guardian of the estate shall petition the probate court for authorization to make lifetime gifts, to allocate income, and/or to plan for the testamentary distribution of the ward's estate. This petition shall include the following information:
(a) A description of the proposed action;
(b) The anticipated results including any income, estate, or inheritance tax savings, and, if the gift is being made in order to qualify the ward for Medicaid, whether the action will maximize payments by Medicaid for the ward's care or result in a period of Medicaid disqualification;
(c) The ward's wishes, if known;
(d) The ward's financial condition, including present and anticipated future expenses for maintenance, support, and medical care, debts, and support obligations;
(e) The ward's medical condition;
(f) The ward's prior estate planning action, including significant life-time gifts, will, beneficiary designations, joint ownership, or trusts;
(g) The ward's family situation, including the family members who would inherit from the ward if the ward dies intestate;
(h) Whether the gift is intended to reduce the ward's assets or income in order to qualify the ward for Medicaid or other governmental benefits;
(i) The ward's housing situation during the 12 months prior to the filing of the petition; and
(j) A description of the care and services that the ward requires and is currently receiving.
IV. Notice of the petition shall be given to all interested parties, including the ward, the intended donees or beneficiaries of the contemplated estate plan, family members who would inherit from the ward if the ward died intestate, beneficiaries under current estate planning documents or contracts, the attorney for the ward, and such other parties as the court directs.
V. Before authorizing the guardian to make lifetime gifts or to plan for the testamentary distribution of the ward's estate, the probate court must find, by a preponderance of the evidence, that the proposed gifts and/or testamentary plan are consistent with the ward's wishes or, based on the circumstances as they then exist, that:
(a) The testamentary distribution of the ward's estate will minimize taxation and/or facilitate distribution of the ward's estate to family, friends, or charities who would be likely recipients of gifts from the ward;
(b) The proposed gift is not likely to adversely affect the ward's housing options, access to care and services, or general welfare;
(c) The proposed gift does not create a foreseeable risk that the ward will be deprived of sufficient assets to cover his or her needs during any period of Medicaid ineligibility that would result from the proposed gift; and
(d) The proposed gift is not likely to result in premature or unnecessary nursing home placement or institutionalization of the ward, or compromise the ward's access to care or services in the least restrictive setting in which his or her needs can be met.
VI. The probate court, prior to authorizing a lifetime gift or an allocation of income to the ward's spouse, shall appoint a guardian ad litem if the proposed gift benefits the guardian personally or otherwise creates a potential conflict of interest between the ward's interests and the guardian's personal interests.
VII. The department of health and human services, the county attorney, and the department of justice shall be notified and shall have the opportunity to address the court in any proceeding under this section if the court, or the department, upon motion to the court, has concerns relative to:
(a) The impact on the ward of any period of Medicaid ineligibility that would result from the proposed gift;
(b) Whether the ward has been the victim of a crime or has been or is at risk of being abused, neglected, or exploited within the meaning of RSA 161-F:43; or
(c) The cost of the ward's care to be paid by Medicaid as the result of the proposed gift or income reallocation.
VIII. No petition of spousal support shall be enforceable against the department as it relates to eligibility for medical assistance unless the petitioner provides a copy of the petition to the department at least 14 days prior to filing with the court.
Source. 1998, 186:1. 2003, 312:1, 2. 2011, 224:304-306, eff. July 1, 2011. 2022, 272:25, 26, eff. June 24, 2022.
Section 464-A:27
464-A:27 Sales and Purchase. –
I. The judge of probate, upon petition of the guardian of the estate or of any other person interested in the estate of any ward, may license the guardian to sell, mortgage, pledge, lease or exchange any property of the guardianship estate, including goods and chattels, real estate, or wood and timber growing thereon, upon such terms as the judge may order, for the purpose of paying the ward's debts, providing for said ward's care, maintenance, rehabilitation, training or education and the care, maintenance and education of said ward's dependents, investing the proceeds, or for any other purpose which is in the best interest of the ward. The judge of probate may act on the petition without notice and hearing, if consents signed by all persons interested in the guardianship estate are filed with the petition. If such consents are not filed with the petition, the judge of probate may act on the petition only after notice and hearing.
II. No guardian shall purchase property of the ward, nor sell property of the guardian to the ward unless the price and manner of sale are approved by the probate court.
III. If the judge is not satisfied that the guardian has already given bond sufficient to ensure his or her prudent conduct in a sale and to account for the proceeds thereof, the judge shall, before issuing a license, require of the guardian a bond sufficient for that purpose.
IV. All sales shall be made within 2 years after the grant of the license.
Source. 1979, 370:1. 1981, 564:12, eff. Aug. 29, 1981.
Section 464-A:28
464-A:28 Oath. –
Before a license for the sale of any property of the ward shall be granted, the guardian shall take the following oath and file a certificate thereof in the office of the clerk:
"I, .......... , guardian of the estate of .......... , my ward, do solemnly swear that in disposing of the estate of my ward, for which I have applied for license, I will use my best care and judgment, exercise the prudence, intelligence and discretion which I would in the management of my own affairs and will act in the best interests of my ward so that the property shall be sold to the utmost advantage to my ward, without any self-interest whatever."
Source. 1979, 370:1. 2011, 88:20, eff. July 1, 2011.
Section 464-A:29
464-A:29 Conveyance. –
Every guardian so licensed and sworn, having advertised and sold as required by the license, may execute a valid conveyance of the estate sold to the purchaser.
Source. 1979, 370:1, eff. Aug. 22, 1979.
Section 464-A:30
464-A:30 Joinder of Spouse. –
The wife or husband of a person under guardianship may join with the guardian in a deed for the conveyance of any real estate of the ward, and thereby release and waive any homestead right.
Source. 1979, 370:1, eff. Aug. 22, 1979.
Section 464-A:31
464-A:31 Both Spouses Under Guardianship. –
I. When a married man and his wife are both under guardianship, and the guardian of the estate of either has obtained a license from the judge to sell real estate of the ward, the guardian of the other may, without license, join in the sale and release the ward's interest.
II. In such case, the proceeds of the sale shall be equitably divided, as the judge may direct, according to the value of the respective interests of the husband and wife in the estate sold, and the respective guardians shall receive and be charged accordingly.
Source. 1979, 370:1, eff. Aug. 22, 1979.
Section 464-A:32
464-A:32 Purchase of Part. –
If a ward is seized of an undivided fractional part of real estate, the judge may authorize the guardian to purchase any other fractional part thereof whenever it will be conducive to the ward's interest to do so; and when so licensed, the guardian may make the purchase and use funds of the ward to pay the purchase money.
Source. 1979, 370:1, eff. Aug. 22, 1979.
Section 464-A:33
464-A:33 Purchase of Homestead for Ward. –
I. The judge may, on petition after notice to the ward, the ward's spouse, the ward's heirs at law and a representative of the ward if the judge deems this necessary, license the guardian of the estate to purchase with the funds of the ward real estate situated in this state, as a homestead for said ward.
II. The petition shall state the value of the ward's property and the license shall limit the sum to be expended for such homestead as the judge shall deem proper.
III. Before making any purchase under such license, the guardian of the estate shall take the following oath and file a certificate thereof in the office of the clerk:
"I, .......... , guardian of the estate of .......... , swear that in purchasing a homestead for my ward, I am acting in the best interests and to the utmost advantage for my ward, without any self-interest whatever."
Source. 1979, 370:1. 2011, 88:20, eff. July 1, 2011.
Section 464-A:34
464-A:34 Right of Waiver. –
The guardian of the person and estate, or the person, or the estate, shall have the same rights that the ward would have, if legally competent, to waive the provisions of a will in favor of the ward, intended to be in lieu of distributive share, and shall likewise have the power to release said ward's homestead right, and take for said ward the same property and rights.
Source. 1979, 370:1, eff. Aug. 22, 1979.
Section 464-A:35
464-A:35 Annual Report of the Guardian of the Person. –
I. A guardian of the person shall file an annual report with the court within 90 days after the anniversary date of the guardian's appointment, or be in default. The clerk shall give notice of the default to the guardian by first class mail within 10 days after the default. The clerk shall issue a citation notice in accordance with RSA 554:26-a. The report shall contain a brief summary of the present status of the ward including, but not limited to:
(a) Changes in the medical condition of the ward;
(b) A listing of all major hospitalizations, surgical procedures, psychiatric treatments, and illnesses of the ward;
(c) If the ward is institutionalized in a nursing home or state institution, the results of an investigation into the nature and appropriateness of the ward's care and treatment; if the ward is not institutionalized, a brief statement of the supportive social services being provided to the ward;
(d) Any changes or proposals for changes in the living situation of the ward;
(e) The guardian's plan for preserving and maintaining the well-being of the ward;
(f) Facts indicating the need for continuation or cessation of the guardianship, or for any alteration in the powers of the guardian;
(g) Any other information which the court may require the guardian of the person to file.
II. A guardian of the person shall give in hand or mail by first class mail a copy of the annual report to the ward. The court may order service by other means as it deems appropriate. The court may send a copy of the annual report to any other person it may designate. Unless excused by the court for good cause shown, such designated person, if any, shall make a personal visit to the ward. If the ward or the designated person is not satisfied with the report, the ward or the designated person may request a hearing within 15 days after the ward's receipt of the report.
Source. 1979, 370:1. 1981, 564:13. 1995, 277:7. 1996, 265:3, 4. 2001, 146:4. 2009, 132:5. 2011, 88:22, eff. July 1, 2011.
Section 464-A:36
464-A:36 Accounts; Notice. –
I. Subject to the provisions of RSA 464-A:26, V, a guardian of the estate shall file an annual account under oath with the court within 90 days after the anniversary date of the guardian's appointment, or be in default. The clerk shall give notice of the default to the guardian by first class mail within 10 days after the default. The clerk shall issue a citation notice in accordance with RSA 554:26-a.
II. Said annual account shall specify the amount and type of real and personal property received by the guardian and remaining in his or her control or invested by him or her, and the nature of such investment, and receipts of money disbursed and expenditures, during the preceding time. Upon request of the court, the guardian of the estate shall produce for examination by the court, all securities, evidences of deposit, and investments reported, and any other information or documentation which the court may consider relevant to the accounting of the financial and property transactions of the estate.
III. Whenever any guardian of the estate files an account in the probate court, the guardian of the estate shall contemporaneously forward, in hand or by first class mail, the following to the ward and all parties appearing of record:
(a) A copy of the account; and
(b) A notice that the account may be approved unless a written objection, containing the specific factual or legal basis for the objection, is filed within 30 days after the date the account is filed in the probate court.
IV. The guardian of the estate shall certify to the probate court that the requirements of paragraph III have been complied with.
Source. 1979, 370:1. 1981, 564:14, 15. 1993, 190:14. 1995, 277:8, 9. 1996, 265:5, 6. 1998, 155:4. 2011, 88:23, eff. July 1, 2011.
Section 464-A:36-a
464-A:36-a Repealed by 1998, 155:10, IV, eff. July 8, 1998. –
Section 464-A:37
464-A:37 Reports and Accounts; Failure of Guardian to File. –
I. If a guardian fails to render any report or account within the time provided by law or the order of the court, or fails to settle the estate according to order of the court, the court may, upon its own motion, or upon the petition of any interested party, issue an order compelling the guardian to show cause before the court why he should not immediately make and file said report or account.
II. If a guardian fails, neglects, or refuses to make and file a report or accounting after having been cited by the court to do so, or fails to appear in court as directed by the court, the court may, upon its motion, or upon the motion of any interested party, issue a capias directed to the sheriff ordering that the guardian be brought before the court to show cause why he should not be punished for contempt.
III. If the court finds that the failure, refusal or neglect is willful or negligent, the guardian may be fined an amount not to exceed $5 a day or may be imprisoned for a period not to exceed 10 days, or both. All fines collected under this section shall be for the benefit of the county in which the fine is paid.
IV. The court may also terminate the powers of the guardian.
Source. 1979, 370:1. 1981, 564:17, eff. Aug. 29, 1981.
Section 464-A:38
464-A:38 Annual Notification to Ward. –
The court shall annually notify the ward that the ward has the right to seek alteration or termination of the guardianship at any time. This notice shall be given in language reasonably understandable by the ward. The notice shall contain the name and address of the ward's guardian and shall be given in hand or mailed by first class mail to the guardian and the ward, as the court directs. The court may order service by other means as it deems appropriate.
Source. 1979, 370:1. 1981, 564:18. 1995, 277:11, eff. Aug. 19, 1995.
Section 464-A:38-a
464-A:38-a Prior Guardianships. –
Guardianships established prior to August 22, 1979, shall be reviewed in the probate court in accordance with RSA 464-A:35 and RSA 464-A:36.
Source. 1981, 564:19, eff. Aug. 29, 1981.
Section 464-A:39
464-A:39 Resignation, Removal, or Death of Guardian. –
I. Any person appointed as guardian of the person or an estate or both shall serve until:
(a) His or her resignation is accepted by the court;
(b) He or she dies;
(c) The court finds removal of the guardian to be in the ward's best interests; or
(d) The guardianship is terminated pursuant to this section or RSA 464-A:40.
II. A guardian seeking to resign shall file a motion for court approval of the resignation. Resignation of a guardian is not effective until accepted by the court and a successor guardian is appointed or the guardianship is terminated.
III. The ward or any person interested in the ward's welfare may file a motion for the removal of the guardian of the person or the estate or both, if removal would be in the ward's best interests.
IV. The guardianship shall not terminate with the resignation, removal, or death of the guardian, unless the court order expressly terminates the guardianship. If the guardianship is not terminated, the court shall appoint a successor guardian.
V. The resignation accepted by the court, removal, death of the guardian, or termination of the guardianship shall terminate the authority of the guardian, but shall not release the guardian from responsibility for any act or omission occurring during the period of the guardian's appointment.
VI. Any resignation or removal may be conditioned on such requirements or occurrences as the court may specify in the exercise of its reasonable discretion. The court may make such further orders as may be appropriate, including requiring a final account.
Source. 1979, 370:1. 2001, 146:6, eff. Jan. 1, 2002.
Section 464-A:40
464-A:40 Termination of Guardianship. –
I. A guardianship of the person or of the estate shall terminate upon order of the court, the death of the ward, or upon a finding by the court either that the ward is no longer incapacitated or that the ward's needs are met by available alternative resources.
II. (a) The ward or any person interested in the ward's welfare may, at any time, file a motion for the termination of the guardianship based upon a finding that the ward is no longer incapacitated. Provided, however, an order adjudicating incapacity may specify a minimum period, not exceeding one year, during which no motion concerning such adjudication may be filed without special leave.
(b) A ward may request the termination of the guardianship based on a finding that he or she is no longer incapacitated in an informal letter to the court or judge. Persons directly responsible for the care and supervision of the ward may assist the ward in preparing a letter of this kind. Any person who knowingly interferes with a transmission made by, or on behalf of, a ward to the court or judge may be adjudged guilty of contempt of court.
(c) Unless the motion is without merit, the court shall hold a hearing similar to that provided for in RSA 464-A:8 and RSA 464-A:9 at which the guardian shall be required to prove that the grounds for appointment of a guardian provided in RSA 464-A:9 continue to exist.
III. Upon termination of a guardianship of the estate, the guardian shall file a final account with the court within 90 days after the date of termination, or as ordered by the court. When the guardianship is terminated as a result of the ward's death, the guardian shall include a copy of the death certificate. Upon approval of the account, the guardian shall be discharged and his or her bond released.
IV. Upon termination of a guardianship of the person resulting from the death of the ward, the guardian shall provide a copy of the death certificate to the court within 30 days of the ward's death. Upon receipt of the death certificate, the guardian shall be discharged.
V. (a) If, within 30 days after the date of a testate or intestate ward's death, no petition for probate has been filed under any section of RSA 553 and the gross value of the personal property remaining in the possession of the guardian belonging to the deceased, including any amount left in designated accounts for the ward, is no more than $10,000, the guardian may file in the probate court in the county having jurisdiction over the guardianship an affidavit for the purpose of disposing of such deceased ward's estate. Once approved by the court, the guardian shall be authorized to dispose of the ward's accounts in a manner consistent with the court's order. The form of the affidavit, and the rules governing proceedings under this section, shall be provided by the probate court pursuant to RSA 547:33.
(b) If the ward died testate and if the guardian has the will or a copy of the will, the guardian shall file the will or copy of the will and a death certificate with the probate court having jurisdiction where the ward resided at the time of the ward's death pursuant to RSA 552:2. A copy of the will also shall be filed in the probate court having jurisdiction over the guardianship.
(c) If the deceased ward has known debts, the probate court may order the guardian to pay such debts to those creditors in the order of priority pursuant to RSA 554:19. If all known debts of the deceased have been paid and a balance remains in the designated accounts for the ward after the filing required under subparagraph (a), the probate court may order the guardian to pay the balance to the ward's beneficiaries pursuant to the terms of the ward's will, or if the ward had no will, to those heirs who would inherit pursuant to RSA 561:1. The probate court may also order the guardian to pay the balance to the state treasurer to be held as abandoned property pursuant to RSA 471-C.
(d) Any guardian, or any organization providing guardianship or other fiduciary services to any individual under the public guardianship and protection program pursuant to RSA 547-B, may petition the probate court to dispose of any non-guardianship accounts, to include but not limited to social security representative payee accounts, and the probate court may authorize the release and distribution of such funds pursuant to the terms of this paragraph.
Source. 1979, 370:1. 2001, 146:7. 2016, 245:1, eff. June 10, 2016. 2021, 122:64, eff. July 1, 2021; 206:2, Pt. VI, Sec. 13, eff. Oct. 9, 2021.
Section 464-A:41
464-A:41 Appointment of Guardians Ad Litem. –
When before or during the hearing on any proceeding in any court it appears to the court that the interest or rights of a legally incapacitated person by age or other cause or circumstance are not fully represented or upon the request of any interested person, the court may appoint a competent and disinterested person to act as guardian ad litem for such legally incapacitated person and to represent such person's interest in the case. The guardian ad litem shall have none of the rights of the general guardian. The person appointed guardian ad litem shall make oath to perform such duty faithfully and impartially. A bond may be required of the guardian ad litem at the discretion of the court.
Source. 1979, 370:1. 1997, 28:1. 2005, 160:3, eff. Aug. 20, 2005.
Section 464-A:42
464-A:42 Settlements on Behalf of Minors or Judgments or Decrees in Favor of Minors. –
Settlements, judgments, or decrees of any suit or claim brought on behalf of a minor by a parent or next friend shall be approved by the superior or district court in which the action is pending or to which a writ may be made returnable as follows:
I. If the net amount, as defined in RSA 463:2, VI, or the portion thereof, to be paid to the minor while still a minor, exceeds $10,000:
(a) Superior court or district court approval of settlements, including structured settlements, is required. The superior or district court shall require proof in the form of a certified statement from the probate court that the guardian ad litem, parent, next friend, or other person who receives money on behalf of the minor has been appointed guardian of the estate of such minor and is subject to the duties prescribed under RSA 463:19.
(b) In the case of a judgment or decree, the superior or district court shall, before making any orders for payment, require proof in the form of a certified statement from the probate court that the guardian ad litem, parent, next friend, or other person who receives money on behalf of the minor has been appointed guardian of the estate of such minor and is subject to the duties prescribed under RSA 463:19.
II. For any net amount, as defined in RSA 463:2, VI, which is to be paid to the minor after the minor attains the age of majority:
(a) The superior court or district court may require approval, for good cause shown, of settlements, including structured settlements.
(b) The superior court or district court may make further orders regarding said distribution for good cause shown in the case of a judgment or decree.
Source. 1979, 370:1. 1992, 284:10. 1993, 82:2. 1994, 30:1. 1996, 265:7. 2008, 93:4, eff. May 21, 2008.
Section 464-A:43
464-A:43 Costs. –
The costs incurred by the imposition of a guardianship or conservatorship pursuant to the procedures established in this chapter shall be distributed in the following manner:
I. Except in cases in which the petitioner filed the petition in bad faith, the court costs, expenses, and fees for counsel for the proposed ward and any resource person shall be borne by the proposed ward. In cases in which the petitioner acted in bad faith, the petitioner shall bear all such costs, expenses, and fees of the proceeding. The court may allow for payment of the costs, expenses, and fees of counsel for the petitioner from the assets of the ward, provided:
(a) The court has granted the petition to establish the guardianship;
(b) The awarding of costs, expenses, and legal fees from the assets of the ward will not cause undue financial hardship to the ward; and
(c) The costs, expenses, and legal fees incurred are reasonable and were necessary to protect the health, safety, welfare, or other personal; property, or financial interests of the ward or the ward's estate.
II. If the proposed ward is indigent, the costs, expenses, and legal fees for counsel for the proposed ward and any resource person incurred that are related to the petition for guardianship proceeding shall be borne by the state.
III. The costs incurred in the petition for a conservatorship shall be paid by the estate of the conservatee.
Source. 1979, 370:1. 1987, 333:2. 2014, 163:1, eff. Jan. 1, 2015.
Section 464-A:44
464-A:44 Repealed by 2015, 79:2, I, eff. Jan. 1, 2016. –
Section 464-A:45
464-A:45 Repealed by 2015, 79:2, II, eff. Jan. 1, 2016. –
Section 464-A:46
464-A:46 Repealed by 2015, 79:2, III, eff. Jan. 1, 2016. –
Section 464-A:47
464-A:47 Appeals to Supreme Court. –
Appeals under this chapter to the supreme court shall be made in accordance with RSA 567-A. However, no order of the probate court shall be stayed pending appeal except by order of the probate court judge or the supreme court.
Source. 2001, 146:9, eff. Jan. 1, 2002.