Probate & Trust Litigation

A resource for lawyers and the public in Massachusetts and New Hampshire for information on will contests, trust disputes, guardianships, conservatorships, elder exploitation, fiduciary duty claims, and other probate litigation disputes.

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NH Guardianships – Not Like Those in “Last Week Tonight with John Oliver”

On June 3, Last Week Tonight with John Oliver delivered a funny but eye-opening examination of the guardianship process in the United States.  Bringing his trademark wit, John Oliver points out ways in which the guardianship system fails those vulnerable people it is designed to protect.  People who watched the clip may wonder after watching the clip, is guardianship right for me or my loved one?

What is a guardian?

Broadly speaking, a guardian is a person who has the legal authority and duty of taking care of another person or their property.  A person may have a guardian appointed if they are incapacitated, which is defined in New Hampshire as “suffering . . .substantial harm due to an inability to provide for his personal needs for food, clothing, shelter, healthcare or safety, or an inability to manage his or her property or financial affairs.”  When a person has a guardian appointed, that person (called the ward), loses the ability to exercise many important rights, like managing her own money or healthcare decisions, and even the right to determine where to live.  Guardians are appointed and supervised by the circuit court—probate division judges, who are lawyers appointed to the bench by the Governor.   They can be family members, professional guardians, or members of the Office of Public Guardian or Tri-County CAP, Inc., private non-profit corporations which provide guardianship services to legally incapacitated adults.

What are a person’s rights when facing a guardianship petition?

Often times, when a loved one files a petition for a guardianship over a person, the proposed ward may agree to the guardianship.  But if the ward doesn’t agree, New Hampshire provides important legal protections for that person which are supposed to prevent some of the horror stories John Oliver mentions.  First, a proposed ward has a right to notice and a hearing to determine whether she is incapacitated.  Second, she has the right to an attorney, including, if she cannot afford one, an attorney appointed at the public expense.  Third, in New Hampshire incapacity must be proven beyond a reasonable doubt—the same rigorous standard used in criminal cases.

How does New Hampshire protect those under guardianship from exploitation?

John Oliver also points out another potential problems with guardianships—the potential for abuse and financial exploitation of wards by their guardians.  Fortunately, New Hampshire has important financial protections to limit these abuses .  First, a guardian of someone’s estate (in other words, a guardian who can exercise financial management for the ward) has to file annual inventories of the ward’s assets to the probate court, which reviews the inventories carefully.  Second, professional guardians must be certified by the Probate Court’s Administrative Judge and be a national certified guardian with the Center for Guardianship Certification.  Third, guardian’s fees are capped at $60 an hour to a maximum of $900, unless the court finds good cause and exceptional circumstances to exceed the cap.  Fourth, guardians of someone’s estate are required to post a bond with the court, which would reimburse a ward in the event of neglect or malfeasance.   Fifth, guardians of the estate are required to seek court approval before selling real or personal property.

If you or someone you love are considering guardianship, it is best to consult with experienced counsel who can advise you on your options and guide you through the process.  Henry Klementowicz is an associate in McLane Middleton’s litigation department and handles a wide variety of probate litigation, including guardianships.

The full clip of Last Week Tonight with John Oliver is available is © Home Box Office 2018.  Please be advised this clip contains explicit language.  Viewer discretion advised.