Guardianships are necessary when a person is unable to provide for his or her basic needs of food, shelter, clothing, health care, safety, and/or is unable to manage financial affairs. There are generally two types of guardianships: guardianship of a minor and guardianship of an “incapacitated” person. A guardian is a person who has been appointed by the court to have care and custody of a minor or of an incapacitated person. The guardian may be appointed over the person and also over the person’s estate.
In New Hampshire, guardianships of minors are done in the Family Division, unless the guardianship involves both the person and estate of the minor in which case it would be handled in the Probate Division. A minor is defined as someone who is under 18 years of age and who is unmarried and unemancipated. Guardianships of incapacitated persons are handled in the Probate Division. “Incapacity means a legal, not a medical, disability and shall be measured by functional limitations.” RSA 464-A:2, XI.
As stated, guardianship over a minor or over an incapacitated person, may be over the person only or may be over the person and estate. This determination will be made based upon the needs of the proposed ward (the person over whom guardianship is sought), the request of the proposed guardians, and the judgment of the court. A guardian over just a person would involve making life decisions for that person such as healthcare or living arrangements. A guardian over the estate will involve taking possession of the ward’s personal property and real estate and to protect those assets for the ward.
After a guardian files for guardianship over a ward, the court will schedule a hearing, send notice to both parties, and appoint the ward an attorney if he or she does not already have one. At the hearing in the case of an incapacitated adult, the Petitioner (person who filed the Guardianship Petition) must show beyond a reasonable doubt that the proposed ward is incapacitated and unable to care for himself. If the hearing is for a minor, the burden is lower, and the Petitioner must show by a preponderance of the evidence that the guardianship of the person is in the best interests of the minor and that the guardianship of the estate is necessary to provide for the proper management of the property and financial affairs of the minor.
In Massachusetts, the procedure to appoint a guardian is slightly different. If you are appointed a guardian, you have the power to make all health and personal care decision for the ward. If you are appointed a conservator, you have the power to make all financial and business decisions for the ward.
To obtain a guardianship over someone you believe is incapacitated, a petition for guardianship is filed in the Probate and Family Court in the county where the incapacitated person lives. Along with the petition for guardianship, a medical certificate or clinical team report must be filed with the petition. The medical certificate must be signed by a physician, psychologist or psychiatric nurse. A clinical team report must be signed by a physician, psychologist and social worker. A medical certificate is valid for 30 days from the date of examination. A clinical team report is valid for six months from the date of examination. After these documents are filed, the Petitioner must request a hearing on the guardianship request and properly serve the pleadings upon the Respondent (person believe to be incapacitated). An attorney will be appointed for the Respondent upon request of any person. After a hearing, the court may appoint a guardian if the Respondent is found to be incapacitated, that the appointment is necessary or desirable as a means of providing continuing care and supervision of the incapacitated person, and the Respondent’s needs cannot be met by less restrictive means.
As for the guardianship of a minor, a guardianship may not be necessary if the parent(s) complete a Caregivers Authorization Affidavit, which allows the caregiver to share equal parental responsibilities in the child’s health and education. Otherwise, the court may appoint a guardian for a minor if, after a hearing, the court finds (i) the minor’s parents are deceased or incapacitated, (ii) the parents consent, (iii) the parents’ parental rights have been terminated, (iv) the parents have signed a voluntary surrender, or (v) the court finds the parents, jointly, or the surviving parent, to be unavailable or unfit to have custody.
Smith-Weiss Shepard Kanakis & Spony, P.C. has experienced attorneys that can help you with this process, and advocate on your behalf for you or a loved one to become guardian of an incapacitated person or minor.