Published in the Union Leader (3/14/2021)
Q: My father’s mental faculties are declining, and he is making bad decisions and having difficulty caring for himself. What are my options if he is refuses help?
A: If your father can’t manage his affairs and has not signed or refuses to sign a power of attorney, guardianship may be the only option. An appointed guardian would have the duty and legal authority to take care of your father and/or his property. Conversely, your father would lose certain important rights, such as making healthcare or financial decisions.
Guardianship is appropriate only where the party over whom guardianship is sought (referred to as the proposed ward) is incapacitated. “Incapacity” is determined based on whether the proposed ward can sufficiently manage his or her affairs — not on a medical diagnosis, though this may be important evidence. The Court will presume that the proposed ward has capacity, and the petitioning party will need to prove otherwise beyond a reasonable doubt (the same heavy burden the State must meet in criminal cases). Specifically, the petitioner must prove that the proposed ward has suffered (or is likely to suffer) substantial harm due to an inability to provide for his or her personal needs such as food, clothing, shelter, health care, or safety. For example, a person may be incapacitated where he or she is easily confused or disoriented, and has been financially exploited.
There are three types of guardianships. The first, guardianship “of the person,” tasks the guardian with managing the ward’s personal affairs. The second, guardianship “of the estate,” requires that the guardian manages the ward’s finances and property. The third, “plenary” or “total” guardianship, requires management of the ward’s personal affairs, finances, and property. The most appropriate form of guardianship will vary, depending upon the facts of a given case. For example, a person may be able to care for his or her personal needs, but not manage his or her finances. In that circumstance, a guardianship of the estate may be most appropriate.
Guardianship proceedings should not be initiated lightly. Often, the proposed ward finds the action threatening and reacts badly, or there is damage to the ward’s relationship with the petitioner. The ward may make reactive decisions, such as disinheriting the petitioner. Taking action could also push the proposed ward towards an exploiter, resulting in further harm. Ultimately, each case is different and careful thought should be given to whether guardianship is in the proposed ward’s best interest. Before seeking guardianship, you should carefully review relevant statutes. It may also be prudent to consult an attorney for further guidance.
Alexandra Cote can be reached at [email protected].
Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. Questions and ideas for future columns should be emailed to [email protected]. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.