The Legal and Emotional Challenges of Adult Guardianship

Aug 2, 2017

As baby boomers age, and the opioid crisis continues to ravage the state, there is a rising need for guardians of people older than 18. But taking on someone else's financial and/or healthcare needs can be costly and emotionally taxing. We'll find out about the process in New Hampshire. 


GUESTS:

  • Scott McGuffin - Attorney at McGuffin Law in Laconia, where he specializes in guardianship. McGuffin is also a guardian for an adult. 
  • Douglas McNutt - Associate State Director of Advocacy with AARP, where he is working to pass legislation that would assist adult caregivers. 
  • Susanne Chisholm - Founding attorney with Lawson, Persson & Chisolm. She is a probate and estate planning lawyer. 

Why might an adult need a guardian?

According to New Hampshire and national law, a person may become a "ward" of another person, who serves as guardian, if he or she is not capable of making financial or healthcare related decisions independently. There are a number of reasons this may be the case: intellectual or developmental disability (when the individual turns 18), mental illness or a mental health crisis, or a serious accident or illness (such as a stroke or dementia). 

Often, a guardian is either a family member or court-appointed public official that oversees someone's care to make sure they receive adequate health services and/or that their assets and finances are properly managed. This can include elderly adults at risk of financial fraud. 

What are the different types of guardianship?

Susanne Chisholm: 

There are two separate sets of guardianships - there's over the person, which is to make medical decisions and make decisions about placement, versus financial decisions, where someone can't pay their bills or manage their assets anymore. 

What I've been seeing a lot in my practice with [regards to] financial guardianships are elders who are being taken advantage of in scam situations.

What is the difference between "power of attorney" and "guardianship?"

Power of attorney is appointed by the person who wants someone else to manage their healthcare and finances in the event of a crisis or change of health status. For example, an aging parent may grant power of attorney to a child, but could later decide to change that power of attorney to a different person without having to go through a judge. Guardianship is appointed by a judge to a person or several people who have filed on behalf of a ward. 

Scott McGuffin:

Under any circumstances, the power of attorney can be revoked by the individual even if they are quite demented. A guardianship is indelible. The only time it can be changed is through a court proceeding process where there's a request to either modify or terminate the guardianship. 

Are there regulations to prevent abuse of guardianship?

Douglas McNutt:

The Uniform Adult Guardianship Protective Proceeding and Jurisdiction Act - it's a mouthful - but one of the things that it prevents is so-called "granny snatching." There used to be these instances where somebody would take their grandparent to another state and pursue guardianship. And so this is proposed to prevent that. It's kind of, in some ways, like a child custody jurisdiction...where the courts will look at where that person is...where they should be, and where should the guardianship be? 

Why does the guardianship process take so long to complete?

Guardianship can take anywhere from a few days or weeks (in an expedited situation) to many months to complete. 

Susanne Chisholm:

The courts are often overwhelmed, and there's not enough judges and staff to see all kinds of cases...with the expedited [hearing], you're supposed to be able to get in front of the court within two weeks. 

Scott McGuffin:

My experience is that over the last five years, expedited guardianships have been denied as a matter of course unless there is really something compelling. Now why is that? Judicial time, lack of resources. The other thing to mention is there is also a temporary guardianship, which is good for 60 days. 

Is guardianship expensive?

Susanne Chisholm:

It's expensive in the sense that, generally, if finances are involved, the bonding companies are requiring that you be represented by counsel. They have been burned far too many times by individual guardians not represented by counsel, not doing what they're supposed to be doing... There are legal fees involved... once you're appointed as a guardian you have to file annual reports with the court of how the money is being spent. And if you're the guardian of a person you have to also file a report about where the person is, what they're care is, what's going on with the person medically.

What is the emotional strain of guardianship?

Douglas McNutt:

I remember this distinguished businessman who was on the stand testifying about his mother-in-law, and he broke into tears. I wasn't expecting it. But you have to realize that this is an incredibly emotionally taxing process. It's also complicated for a layperson to walk into that court and figure out how to do a petition, how to put together a case. 

Find out more about the guardianship process in New Hampshire here