Guardianships
Guardianships are crucial for protecting the rights and well-being of individuals who can’t make decisions for themselves. They ensure that personal, financial, and healthcare needs are met by appointing a trusted guardian to act in the best interests of the incapacitated person.
If a person has not done any prior estate planning, and has no general durable power of attorney for finances or New Hampshire Advance Directive for health care, then no one automatically has the legal authority to make decisions on that person’s behalf if he or she becomes incapacitated. In that situation, the only remaining option for decision-making and management is a guardianship.
A guardianship is a Court proceeding in which one person (the “guardian”) asks the Court to grant authority to act on behalf of an incapacitated individual (the “ward”). Guardianship is not a simple matter—New Hampshire law requires that guardianship be the least restrictive form of intervention consistent with the ward’s civil rights and liberties; and the process can be lengthy, costly, and emotionally difficult for everyone involved.
This is precisely why advanced planning matters: a properly executed power of attorney and advance directive can often prevent the need for a guardianship altogether. If you find yourself facing this situation without those documents in place, we strongly recommend consulting with an attorney before filing a guardianship petition.
Helpful Tips for Guardianships
Guardianship is a last resort, not a first option.
New Hampshire law requires trying to find less restrictive alternatives before petitioning the Probate Court for guardianship authority.
The process requires that you prove the ward's incapacity beyond a reasonable doubt,
and that guardianship is necessary. The proposed ward will be assigned legal counsel and has the right to contest the petition.
A guardian's authority is not unlimited.
New Hampshire law requires the guardianship to be tailored to what the individual actually needs; courts do not grant blanket authority over every aspect of a person’s life by default.
The best time to avoid this process entirely is now,
While you or your loved one have capacity to sign a power of attorney and advance directive.