Probate Code
Each state's laws set out detailed procedures which must be followed to have a guardian or conservator appointed. Although details vary, typically the process requires notice to the proposed ward and other interested parties, evaluation of the proposed ward and evidence supporting the request, a hearing, and a decision by a jury or judge.
Initiating an Action – Filing a Petition:
Any relative, public official, or interested person, or any individual on his or her own behalf may file a verified petition for a finding of incapacity and appointment of a guardian of a person and estate, or the person, or estate.
The petition for appointment of a guardian of the person and estate, or the person, or estate, shall state:
(a) The name, address, corporate or agency status of the petitioner and connection with or relationship to the proposed ward;
(b) The name, age, and address of the proposed ward;
(c) When appropriate, the name and address of the person or institution having care or custody over the proposed ward;
(d) The names and addresses of adult spouses, parents, children and siblings of the proposed ward, so far as they are known to the petitioner;
(e) A brief description and the approximate value of the real and personal property and income of the proposed ward so far as they are known to the petitioner;
(f) The nature of the guardianship sought, whether over the person and estate, or person, or estate;
(g) The name, address, occupation and relationship to the proposed ward, if any, of the proposed guardian;
(h) The name and address of counsel, if any, for the proposed ward; and
(i) The length of time for which the appointment of a guardian is requested, whether for an indefinite or limited period of time.
A statement shall be filed with the petition for appointment of the guardian of the person and estate, or the person, or estate, containing facts showing the necessity for the appointment of a guardian of the person and estate, or the person, or estate of the proposed ward, including specific factual allegations as to the proposed ward's financial transactions, personal actions or actual occurrences which are claimed to demonstrate his or her inability to manage an estate, or to provide for personal needs for health care, food, clothing, shelter, or safety.
Notice of Hearing:
Upon filing of the petition, orders of notice shall issue. The orders of notice shall be given in language reasonably understandable by the proposed ward and shall be personally served on the proposed ward not less than 14 days before the date for the hearing set by the court. The orders of notice shall contain the date, time, and place set for the hearing on the petition before the court. The orders of notice shall contain information regarding the nature, purpose, and legal effects of the appointment of a guardian of the person and estate, or the person, or estate. Notice shall further contain information regarding the rights of the proposed ward in the proceedings: the rights to oppose the proceeding, to attend the hearing, to present evidence and to be represented by counsel. Orders of notice shall contain a copy of the petition and any statement filed with the petition.
The orders of notice shall include a statement in 10 point or larger bold face type conspicuously enclosed within a dark border. The name of the attorney given in the statement shall be that of the attorney, if any, listed on the petition. If no attorney was listed on the petition, the name of a court appointed attorney shall be given. The statement shall be as follows:
"Important: You have a right to contest this petition and to be represented by a lawyer. The name of your lawyer or, if you have no lawyer, the name of a court appointed lawyer appears below. If you cannot afford to pay lawyer fees, they will be paid for you. The lawyer named below will soon contact you to discuss this matter."
Examinations:
If the proposed ward is within the state and able to attend, he or she must be present at the hearing unless excused under the provisions of this chapter. If the proposed ward is not within the state, but is a resident of the state, and if the court determines that his or her attendance at the hearing is in the best interest of the proposed ward, the court may order him or her to attend the hearing.
The court, at a hearing convened under this chapter, shall:
(a) Inquire into the nature and extent of the functional limitations of the proposed ward; and
(b) Ascertain his or her capacity to care for himself or herself or his or her estate.
If it is determined that the proposed ward possesses the capacity to care for himself or his estate, the court shall dismiss the petition.
Alternatively, the court may appoint a guardian of the person and estate, or the person or the estate, as requested in the petition and confer specific powers of guardianship on the proposed guardian, or appoint co-guardians, one of the person and one of the estate, after finding in the record based on evidence beyond a reasonable doubt.
Adjudication and Dispositions:
The court may appoint a guardian of the person and estate, or the person or the estate, as requested in the petition and confer specific powers of guardianship on the proposed guardian, or appoint co-guardians, one of the person and one of the estate, after finding in the record based on evidence beyond a reasonable doubt that:
(a) The person for whom a guardian is to be appointed is incapacitated; and
(b) The guardianship is necessary as a means of providing continuing care, supervision, and rehabilitation of the individual, or the management of the property and financial affairs of the incapacitated person; and
(c) There are no available alternative resources which are suitable with respect to the incapacitated person's welfare, safety, and rehabilitation or the prudent management of his or her property and financial affairs; and
(d) The guardianship is appropriate as the least restrictive form of intervention consistent with the preservation of the civil rights and liberties of the proposed ward.
Conservatorship in New Hampshire:
When a person deems himself unfit to prudently manage his or her property and financial affairs due to mental or physical disability, he or she may apply to the probate court for the appointment of a conservator of his property.
Upon notice to the person to be protected and the person nominated as conservator, the court shall hold a hearing to determine that the person has voluntarily applied for the appointment of a conservator and that he or she has voluntarily chosen the person nominated as conservator. The person to be protected and the person nominated as the conservator shall be present at said hearing. If the court has reason to question the voluntariness of the application of the person who seeks the appointment of a conservator, or the voluntariness of the choice of a conservator, the court shall appoint counsel for the person to be protected.
If the court determines that the person to be protected has voluntarily applied for the appointment of a conservator and has voluntarily nominated his conservator, the court may appoint the nominee as conservator for the person to be protected. If, for good cause shown at the hearing, the court determines that appointment of the proposed conservator is not in the best interests of the person to be protected, the court shall have the authority to nominate another person as conservator and, with the approval of the person to be protected, appoint a said person as conservator.
N.H. Rev. Stat. Ann. § 464-A:4
N.H. Rev. Stat. Ann. § 464-A:5
N.H. Rev. Stat. Ann. § 464-A:9
N.H. Rev. Stat. Ann. § 464-A:13