Guardianship & Less Restrictive Alternatives
What is Guardianship?
A guardian is appointed by the Probate Court to “stand in your shoes” and make decisions for you. A Probate Court gives the guardian the power and duty of taking care of you (the ward) and/or your property. There are two main types of guardianship, a “guardian of the person” (who manages the ward’s personal affairs) or “a guardian of the estate” (who manages the ward’s financial affairs).
A judge appointed a guardian for you after a hearing, because based on the evidence and testimony he or she decided beyond a reasonable doubt that:
- You are unable to manage your own affairs;
- You need a guardian to make sure you get continuing care, supervision, and rehabilitation, or to manage your money and property;
- There are no available alternative resources which are suitable with respect to your welfare, safety, and rehabilitation or the prudent management of your property and money;
- It is the least restrictive form of intervention consistent with the preservation of your civil rights and liberties.
What is Supported Decision-Making (SDM)?
Unlike guardianship, which involves the substitution of the guardian’s judgement for that of the person who is subject to the guardianship, the use of SDM maintains the person’s autonomy by providing supports so that the person can make their own decisions. Supports might include the use of plain-language materials, the presence of a supporter in meetings, and assistance in choosing from among a range of alternatives.
For many people, SDM will have advantages over guardianship. Guardianship is a court-imposed structure that completely removes decision making from the person with a disability. SDM, however, can be flexible in how it is applied from one person to the next, and in how it is applied to the same person over time. An SDM agreement will only exist if the person with the disability chooses it and is comfortable with their
The benefit of retaining the freedom to make decisions is obvious to most of us and a good reason to use SDM whenever it is a safe alternative. What may be less obvious is the benefit to people when they exercise self-determination without the constraints of guardianship. People with greater self-determination are healthier, more independent, and better able to recognize and resist abuse. They also tend to be known and valued in their communities.
Know Your Rights
Guardians are only appointed after a court hearing where:
- You have a right to a lawyer
- You have a right to notice of all the hearings and proceedings
- You have a right to attend the hearing and present your evidence and testimony
If you disagree with the decision to appoint a guardian over you, you have the right to challenge it.
The New Hampshire guardianship statute is NH RSA 464-A
Frequently Asked Questions
What are the duties of my lawyer in a guardianship proceeding?
Your lawyer is there to represent you and what you want in the guardianship proceeding. The lawyer is not there to represent your best interests (that would be the job of a guardian ad litem). If you do not want a guardian, your lawyer should tell the judge this, and present any evidence there is showing why you don’t need one.
How do I end or limit the guardianship?
To have the guardianship terminated, you need to send a letter requesting termination of the guardianship to the probate court that appointed the guardian. You can also file a form called “Motion to Terminate Guardianship/Conservatorship” and forward this form to the correct probate court. You can get this form from the Probate Court website.
Once the court has received your letter or Motion, they will schedule a hearing. When the hearing has been scheduled, if you don’t already have a lawyer, contact the court and let them know that you’d like them to appoint one for you. You will want to have someone else at the hearing who can testify about your ability to manage your own affairs.
The judge will decide whether to remove the guardian based on whether removal is in your best interest. The judge can also further limit the terms of the guardianship so that you retain more of your rights. If your guardian is not managing your affairs properly, or if you want someone else to be appointed your guardian, you can ask for this as well.
What are some less restrictive alternatives to guardianship?
The law says the court should only appoint a guardian if there are no available alternative resources to make sure you stay safe, well, and get the services you need, and that your property and money is handled prudently. Some ways to get this help without losing your legal rights include:
- Supported Decision-Making
- Revocable Power of Attorney
- Services such as visiting nurses, homemakers, home health aides, adult day care
- A mentor, or someone to give you advice and support, and help you make good decisions
- Representative payee for Social Security
What rights do I no longer have because of the guardianship?
That depends on the judge’s order. You can get the judge’s order with the details of the guardianship over you, and read them or have someone read and explain them to you. Depending on the judge’s order, the guardianship may limit your right to:
- Travel or decide where you live
- Arrange for your medical care and other services
- Manage your money and property
- Marry or divorce
- Have a driver’s license
- Make or change a will
- Testify in court
- Make contracts
- Buy, sell or give away property
- Give or refuse to give permission for other people to look at or get copies of your records
- File a lawsuit.
The guardianship should only limit those rights you are unable to exercise, and only if there are no available alternative resources to help you exercise those rights.
Are there things a guardian cannot do?
A Guardian CANNOT:
- Admit you to an institution without the judge’s permission or a hearing and the right to a lawyer
- Agree for you to have psychosurgery, sterilization, electroshock, or experimental treatments without the court’s permission.
What responsibilities does my guardian have?
A Guardian must:
- Safeguard your civil rights as much as possible.
- Only restrict your personal freedom to the extent necessary.
- If the guardian manages your money, he/she must protect and preserve it, and use it for your needs.
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If You Need Help
Contact us if your think your guardianship rights have been violated or if you wish to speak with an attorney about a disability-related legal issue.