Devine Millimet | NH Law Firm

How to Establish a Guardianship

Many of our clients come to us with concerns about an aging parent.  Stories of financial exploitation of the elderly are often in the news, and this exploitation is real.  There may be several ways to protect your loved ones from falling victim to a stranger or even another family member’s desire to take advantage.  One such measure is seeking guardianship.

A petition for guardianship over an adult seeks an order from the court that essentially strips the proposed ward of all civil rights.  A guardianship order takes away a ward’s ability to make financial decisions, to decide where to live, how to use money, whether to marry, and other rights.  As such, the court must take such petitions seriously.  Before a guardianship order will issue, certain protections are automatically established to ensure the proposed ward is in fact in need of a guardian.  The court will appoint counsel to a proposed ward to represent the ward’s interests in the proceeding.  The court is also required to hold a hearing, even if nobody objects to the imposition of a guardianship.  At the guardianship hearing, the petitioner must provide sufficient evidence to establish that the proposed ward is in fact incapacitated.  Incapacity requires a legal analysis, not a medical one.  Although medical records and testimony from physicians can be helpful for the court, often times additional testimony that will speak to the proposed ward’s inability to manage finances, confusion on the part of the ward, or other direct evidence of functional limitations will be persuasive.  The analysis does not end with a finding of incapacity.   The court must also determine that a guardianship is actually necessary to protect the proposed ward from some substantial harm and the court must determine that there is no reasonable lesser restrictive alternative to guardianship.  For example, the court might decline a request for guardianship if there are sufficient estate planning documents, including a Health Care Power of Attorney document or a financial Power of Attorney document, already in place.  Should the court decide the proposed ward is indeed incapacitated and in need of a guardian and that there are no lesser restrictive alternatives, a guardianship order may issue, at which point the court will require the appointed guardian to post a bond with the court, providing further protection for the proposed ward.
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