Devine Millimet | NH Law Firm



Charles R. Powell III, Esq.
Thomas Quarles, Esq.

April 9, 2020

On April 7, 2020, the Honorable David D. King, Administrative Judge of the New Hampshire probate courts, issued two Administrative Orders establishing a formal process for the filing of an “Emergency Expedited Guardianship Petition Over an Adult Person” as well as “protocols” for such Emergency Petitions.  In Judge King’s explanatory “Memorandum,” he emphasizes that the complexity of this process requires a hospital to have an attorney submit these Emergency Petitions.

The Administrative Orders provide a road map for hospitals seeking to establish guardianships of incapacitated adults in their care.  They also provide increased predictability and time-savings in the guardianship process.  As the establishment of guardianships in such cases will undoubtedly facilitate the transfer or discharge of non-critically ill patients to non-acute care settings, the Administrative Orders should maximize the capacity of our New Hampshire hospitals to handle the coming COVID-19 surge.

Although emergency petitions are sometimes heard and resolved within 15 days of filing, the court now believes that a much shorter period is demanded by the existing emergency circumstances.  To this end, the court has committed to holding videoconference or telephonic hearings within two days of service of the Emergency Petition upon the ward’s counsel.  While certain prior requirements for expedited hearings have been relaxed, notice requirements to interested parties have been enhanced to now require notice by telephone and electronic mail, instead of conventional means.  Even case-load limits imposed upon guardians have been waived to maximize availability in the guardian pool.

            This new but temporary process established by the probate court is as follows:

  1. The Emergency Petition is electronically filed. The petitioner (assumed to be a hospital) must propose a guardian and must identify the reason for the request for an emergency hearing.  All such Emergency Petitions shall be heard by the 6th Circuit – Probate Division, i.e., the probate court located in Concord;
  1. The petitioner is required to provide electronic mail and telephone numbers as are “reasonably ascertainable” for all interested parties such as, by examples only, adult spouses, children, parents and agents under powers of attorney;
  1. The petitioner should also seek assent to the guardianship from all interested parties prior to filing;
  1. Under the Administrative Orders, the court now will accept electronic signatures (as opposed to actual ink/hard copy signatures) in all documents submitted;
  1. Attendance of the proposed ward will not be required assuming that the physician’s affidavit provided by the petitioner allows the court to conclude that attendance will likely result in harm to the ward or may expose others to COVID-19;
  1. As stated in the protocols established by Administrative Order 2020-8, upon the filing of all the information required, the court shall “‘determine whether the proposed ward may require urgent medical treatment [including transfer to another facility due to Covid-19 concerns] or whether any other circumstance is alleged to exist which requires an expedited hearing,’ and if the emergency protocols are required to ensure the health and safety of the proposed ward and it is in the best interest of public safety to further expedite the process;”
  1. Where the court finds that the petition is well-founded, the court will appoint counsel for the proposed ward and will make all “reasonable efforts” to do so within 24 hours of receiving the completed Emergency Petition. If the court does not make such a finding, then the matter will proceed according to ordinary procedures (meaning that the Emergency Petition will not be heard on an expedited basis);
  1. Upon acceptance of the appointment by counsel for the ward, the court will schedule a video or telephonic hearing within two business days of service of the appointment of counsel. Decisions made at or after the hearing shall be issued “as soon as practicable”; 
  1. Hospitals must exercise reasonable efforts to allow counsel for the ward access to the ward and related medical records prior to the hearing;
  1. The Administrative Orders (and related protocols) shall expire on May 4, 2020, unless otherwise extended.

Importantly, Judge King expressly states in the Memorandum that “facilities seeking this emergency relief should retain counsel for these cases …[and not]… try to navigate the complexities inherent in this process.” 

Devine Millimet’s attorneys have extensive experience in New Hampshire’s courts, including the probate courts, and we are standing by to assist hospitals in this expedited process.

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