How Guardianship Works in New Hampshire for Children & Families

Updated

Everyday we are faced with choices. From simple ones like what shoes to wear to more complex ones like where to live, work, and get health care. What happens when we are no longer able to make our own choices or provide for our own personal needs? In those circumstances, it may be necessary to have someone else manage our care and custody called a guardian

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Adults are not the only people who may need guardians. If a parent is unable or unwilling to provide for their child’s custody and care, then the minor child may be in need of a guardian.

Guardianship laws dictate the rights and responsibilities of guardians. Each state has their own guardianship laws. If you live in New Hampshire then this article is for you. Here we will discuss how guardianship works in New Hampshire for children and families.

What Types of Guardianships Exist in New Hampshire?

In New Hampshire, there are the three main types of guardianships. A guardian of the person is a court-appointed guardian who is responsible for the care and custody of the ward (the person under guardianship). A guardian of the estate is a court-appointed guardian who manages the estate of the ward as specified by a court order. A guardian of the person and estate has responsibility for both the ward’s care and custody and their estate. 

A guardianship can be for a minor child or an adult based on the ward’s age. The guardianship may be temporary or permanent based on its duration. The guardianship may also be general or limited depending on the capacity and needs of the proposed ward. These types of guardianships will be discussed in more detail in the following sections.

Who Are the Default Guardians for Minor Children, Older Adults, or Adults With Special Needs in New Hampshire?

In New Hampshire, the father and mother of every minor are joint guardians of the minor. Older adults and adults with special needs are adults. They are responsible for their own care and decision making. 

What Forms Do You Need to File for Guardianship in New Hampshire?

If you have ever gone through a legal proceeding you may have noticed that it involves a lot of forms. That is true for guardianship proceedings as well. 

The forms that you need to file for guardianship in New Hampshire will differ depending on whether you are filing for guardianship of a minor child or an adult. The forms may also differ depending on your case’s unique circumstances. For example, some forms need to be completed by more than one person. 

If you have questions about what forms you need to file for guardianship in New Hampshire you should contact an experienced guardianship attorney. A guardianship attorney can answer your questions and advise you regarding what forms to file. 

Forms for guardianship of a minor child

To file for a guardianship of a minor child in New Hampshire, you will need to file the following forms to start the case:

  • Petition for guardian of minor
  • Criminal record release authorization
  • DHHS record release authorization

Forms for guardianship of an adult

To file for a guardianship of an adult in New Hampshire, you will need to file the following forms to start the case:

  • Petition for guardianship of incapacitated person
  • Criminal record release authorization
  • DHHS record release authorization 

How Do You File for Guardianship in New Hampshire?

In New Hampshire, you file for guardianship by first gathering and completing all of the necessary forms. The forms can be filed in person or e-filed. When you file the forms you will also have to pay a filing fee.

You must file the forms in the appropriate court. In New Hampshire, minor guardianship cases are handled by the Family Division court. If the minor guardianship case involves both guardianship of the minor and guardianship of the estate, then the case is handled by the Probate Division court. The Probate Division court also handles adult guardianship cases. The appropriate court is the court in the county where the proposed ward resides.

How Do You Assign a Guardian for a Minor Child in New Hampshire?

The judge, not you, appoints a guardian for a minor child. It is possible to nominate a guardian for a minor child in New Hampshire. Any person can nominate a guardian of a minor child in a legal will

If you are a parent with minor children, you may want to consider naming a guardian for your minor children in your will. As difficult as it may be to think about, choosing a guardian for your minor children now ensures that your wishes are known even if you are no longer around.

How Guardianship Works for Minor Children

In New Hampshire, a minor is a child under 18 who is unmarried and unemancipated. The guardianship must be in the best interest of the minor child. A minor guardianship terminates by order of the court or when any of the following occur:

  • The death of the minor
  • The minor's eighteenth birthday
  • The minor is emancipated
  • The issuance of a final decree of adoption.

There are different types of guardianships which will be discussed below. 

Guardianship of the person of a minor

In New Hampshire, a guardian of the person of a minor “has the powers and responsibilities of a parent regarding the minor's support, care and education.” The guardian is “not personally liable for the minor's expenses and is not liable to third persons by reason of the relationship for acts of the minor.” 

Guardianship of the estate of a minor

The guardian of the estate of a minor must protect the minor’s property. The guardian of the estate has the power to perform “every act which persons of prudence, discretion and intelligence and exercising judgment and care as in the management of their own affairs would perform for the purposes of the guardianship.”

Limited guardianship of a minor

In the above guardianships, the guardian has all powers prescribed under the law. A limited guardianship is a guardianship that is limited by court order. It somehow restricts the powers, rights, or responsibilities of the guardian.

Ex parte and temporary guardianship

A petitioner (the person filing for guardianship) may request ex parte orders when filing a petition for guardianship of the minor. An ex parte order is only appropriate if the petitioner can allege that the minor “will or is likely to suffer immediate or irreparable harm or injury.” If an ex parte order is entered, it expires in 30 days.

The petitioner may also request temporary orders when filing a petition for guardianship of a minor. A temporary guardianship, as its name suggests, lasts for a limited period of time.

How Guardianship Works for Older Adults

Guardianship statutes in New Hampshire say nothing about the number of candles on a person’s birthday cake. What does this mean? This means that once a person is an adult, age is not a factor when considering guardianship.

In New Hampshire, you may be able to get guardianship for an incapacitated adult. Incapacity is “measured by functional limitations.” Incapacity means or refers to “any person who has suffered, is suffering or is likely to suffer substantial harm due to an inability to provide for his personal needs for food, clothing, shelter, health care or safety or an inability to manage his or her property or financial affairs.” If you are the petitioner, you will have to demonstrate to the court that the proposed ward is incapacitated.

Guardianship of the person of an incapacitated person

A guardian of the person of an incapacitated person is “entitled to custody of the ward” and may choose where the ward resides. A guardian of the person shall respect the ward and “shall restrict the personal freedom of the ward only to the extent necessary.”

Guardianship of the estate of an incapacitated person

A guardian of the estate of an incapacitated person has the same rights and responsibilities as those discussed in the previous section on guardianship of the estate of a minor child. 

Limited guardianship of an incapacitated person

When granting a guardianship, the court will favor the least restrictive form of intervention. This means that the guardianship imposes only necessary restrictions on the ward. A limited guardianship is, as its name implies, a limitation on the powers of the guardian. In a limited guardianship, the court imposes limitations on the powers of the guardian all in the best interests of the ward.

Temporary guardianship

Any interested person may file a petition for a temporary guardianship. The petitioner will have to state the reasons why the regular guardianship process is not appropriate. 

A temporary guardianship is limited to only what is necessary “to prevent immediate serious physical or mental harm to the proposed ward or immediate serious physical harm to others.” Also, as its name suggests, a temporary guardianship is only for a limited period of time.

How Guardianship Works for Adults With Developmental Disabilities or Special Needs

Adults with developmental disabilities and special needs are adults. As adults, they have all of the rights and responsibilities that all adults enjoy. In order to establish guardianship of an adult, an interested person must demonstrate that the proposed ward is incapacitated as discussed in the above section.

Supported decision-making

A guardianship restricts a person’s decision-making abilities. In 2021, New Hampshire passed a law that enables people with disabilities to maintain their right to make their own decisions with the help of a trusted person via a supported decision-making agreement. This agreement is an alternative to guardianship that is now an option for New Hampshire residents.

Frequently Asked Questions: Guardianship in New Hampshire

It is okay if you have questions when you are looking into guardianship. Guardianship is a complex subject. Here, we answer frequently asked questions about guardianship in New Hampshire.

How long is temporary guardianship in New Hampshire?

A temporary guardianship expires 60 days from the date the guardianship order is signed. It’s not intended to be a long-term solution.

What’s the difference between guardianship, conservatorship, and custody in New Hampshire?

We have discussed guardianships throughout this article. In New Hampshire, the two main types of guardianship are guardianship of the person and guardianship of the estate. The difference between the two is what the guardianship controls. The guardianship of the person is over the ward and the guardianship of the estate is over the ward’s property.

In many states, a guardianship of the estate is actually called a conservatorship. In New Hampshire, a conservator is “a person who is appointed by the court to manage the estate of one who requests the appointment of a conservator.”

In New Hampshire, custody of minor children means the allocation of parental responsibilities. New Hampshire now uses the term parenting to refer to a parent’s rights and responsibilities. This includes a parent’s right to make important decisions about a child’s education, health care, and religious training. It also includes a parent’s right to decide where the minor child resides. 

Custody or parenting refers to a parent’s rights and responsibilities. Guardianship refers to a guardian’s rights and responsibilities. 

Can you get guardianship without going to court in New Hampshire?

All guardianships must go through the court because a guardian is appointed by the court. Even a guardianship by will goes through the court.

Now Is the Best Time To Make Choices About Guardianship

The best time to make choices about guardianship is now. What does that mean? It means that even if you or a loved one do not currently need a guardianship, you should start thinking about what a guardianship would look like.

If you have young children, have you named someone to be their guardian in a will? If you have loved ones, do you know who they would want to be their guardian if they become incapacitated. Most importantly, have you talked to your loved ones about who you would want to be your guardian if necessary? Now is the time to make your choices known. 

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