Detailed Answer
Under New Hampshire law, two primary legal mechanisms help family members manage an elderly heir’s decisions: power of attorney and guardianship or conservatorship. Each serves different circumstances and carries unique requirements.
Durable Power of Attorney (RSA 506-C)
Under RSA 506-C, an adult with capacity can appoint an agent via a written durable power of attorney (RSA 506-C). This document can grant authority over financial and property matters. To be valid, it must:
- Be in writing and signed by the principal (or by another person at the principal’s direction) in the presence of two witnesses or a notary.
- Specify powers granted, including real property transactions, banking, investments, and personal matters.
- Include a durable clause if the grantor intends it to survive incapacity.
A durable power of attorney avoids court intervention, remains private, and allows the agent to act immediately if the document so provides. The principal can revoke it at any time while competent.
Health Care Power of Attorney (RSA 137-J)
Under RSA 137-J, an individual aged 18 or older can appoint a health care agent to make medical decisions (RSA 137-J). It ensures that health care preferences guide treatment when the principal cannot communicate.
Guardianship and Conservatorship (RSA 464-A)
If no power of attorney exists, or if the individual lacks capacity, interested parties may petition the probate court under RSA 464-A (RSA 464-A). The court can appoint:
- Guardian of the person: makes personal and health care decisions.
- Conservator: manages financial affairs.
The process involves:
- Filing a petition in the county probate court.
- Providing medical evidence of incapacity.
- Serving notice to the proposed ward and family members.
- Attending a court hearing and obtaining an appointment if necessary.
- Complying with ongoing reporting and bonding requirements.
Guardianship is the most restrictive option. Courts apply a “least restrictive alternative” standard and review plans to preserve individual autonomy.
Choosing the Right Path
When capacity remains intact, a durable power of attorney and health care directive provide a cost-effective, private solution. Guardianship becomes necessary if formal court oversight is needed or if the individual can no longer execute valid powers of attorney. Consult a probate attorney early to assess capacity, explain risks, and draft documents correctly.
Disclaimer
Disclaimer: This article provides general information on New Hampshire law. It does not constitute legal advice. For guidance tailored to your situation, consult a licensed New Hampshire attorney.
Helpful Hints
- Discuss your wishes with family and chosen agents in advance.
- Have a doctor evaluate capacity before signing documents.
- Keep original documents in a secure location and share copies with agents.
- Review and update powers of attorney every 3–5 years or after major life events.
- Consider separate agents for finances and health care to avoid conflicts.
- Understand court fees and bond requirements before initiating guardianship.