HB 723-FN - AS INTRODUCED
1999 SESSION
HOUSE BILL 723-FN
AN ACT relative to standby and emergency guardianship proxies.
COMMITTEE: Children and Family Law
This bill establishes short-term guardianship proxies, which may be appointed to exercise limited guardianship powers over a minor on a temporary or emergency basis.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
99-0777
03/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord One Thousand Nine Hundred and Ninety-Nine
AN ACT relative to standby and emergency guardianship proxies.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Subdivision; Standby and Emergency Guardianship Proxies. Amend RSA 463 by inserting after section 32 the following new subdivision:
Standby and Emergency Guardianship Proxies
463:33 Designation of Standby Guardianship Proxies.
I. A parent or parents may designate, in writing, an adult person or adult persons to be appointed as standby guardianship proxy or proxies of the person or estate, or both, of a minor, whether or not the minor is born at the time of such designation. A person who is not the natural parent of the minor but who has been awarded custody of the minor by a court of competent jurisdiction may also designate a standby guardianship proxy pursuant to this subdivision.
II. The designation of a standby guardianship proxy shall be witnessed by 2 or more persons, at least 18 years of age, neither of whom is to be designated as the proxy. If the designation is signed and sworn in the same manner as a will under RSA 551:2-a, it shall be presumed to be valid.
463:34 Appointment of Standby Guardianship Proxies.
I. Upon the filing of a petition for the appointment of a standby guardianship proxy, the court may appoint a proxy of the person or the estate, or both, of a minor.
II. The petition may be accompanied by an affidavit or affidavits concerning:
(a) The consent of the minor's parent or parents to the appointment of the proxy.
(b) The willingness and ability of the minor's parent or parents to make and carry out day-to-day child care decisions concerning the minor.
(c) The parent's or parents' wishes regarding future custodial arrangements and permanency planning for the minor.
III. In all actions to appoint a proxy, the affidavits and any other documents, papers, or reports filed in connection therewith shall be segregated and shall not be available for inspection unless authorized by the court.
463:35 Commencement and Duration of Standby Guardianship Proxy's Authority.
I. The standby guardianship proxy's authority to act shall commence upon:
(a) The death of the minor's parent or parents;
(b) The consent of the minor's parent or parents; or
(c) The incapacity of the minor's parent or parents to make and carry out day-to-day child care decisions concerning the minor for whom the proxy has been appointed, as established by the written certification of a licensed physician.
II. The duties of the standby guardianship proxy shall be those specified in the order appointing the proxy pursuant to RSA 463:34.
III. The standby guardianship proxy shall have the authority to act as a guardian of the minor without direction of the court for 90 days after appointment, unless the order of appointment provides otherwise or a court of competent jurisdiction terminates the proxy.
IV. A proxy commencing by consent of the parent or parents shall confer only concurrent authority over the minor, and shall not divest the parent or parents of any parental or guardianship rights.
V. Within 90 days of the commencement of the standby guardianships proxy's authority, the proxy shall file or cause to be filed a petition for appointment of a guardian pursuant to RSA 463:5.
463:36 Revocation of Standby Guardianship Proxy Appointment. A petitioner or the proxy appointed by the court may vacate the appointment by filing with the court a written revocation and by promptly notifying all necessary parties of the revocation.
463:37 Suspension of Authority.
I. If a parent who has consented to the commencement of authority of the standby guardianship proxy withdraws such consent, the proxy shall again become inactive and shall return to having standby authority under the same terms and conditions as prior to the commencement of authority, with respect to the minor.
II. If a licensed physician determines that the parent or parents have regained capacity, the authority of the proxy which commenced pursuant to a determination of incapacity shall again become inactive and the proxy shall return to having standby authority under the same terms and conditions as prior to the commencement of authority, with respect to the minor.
463:38 Appointment of Emergency Guardianship Proxies.
I. A parent or parents may appoint, in writing, without court approval, an adult person or adult persons to serve as emergency guardianship proxy or proxies of a minor, whether or not the minor is born at the time of such appointment.
II. The written instrument appointing the emergency guardianship proxy shall be dated and shall identify the appointing parent or parents, the minor, and the person or persons appointed to be the emergency guardianship proxy. The written instrument shall be signed by, or at the direction of, the appointing parent or parents, in the presence of 2 or more witnesses at least 18 years of age, neither of whom is to be appointed as the proxy. The emergency guardianship proxy shall also sign the written instrument, but need not sign at the same time as the appointing parent or parents.
III. A parent shall not appoint an emergency guardianship proxy of a minor, if the minor has another living parent whose parental rights have not been terminated, whose whereabouts are known, and who is willing and able to make and carry out day-to-day child care decisions concerning the minor, unless the nonappointing parent consents to the appointment by signing the written instrument of appointment.
IV. The appointment of the emergency guardianship proxy shall be effective immediately upon the date the written instrument is executed, unless the written instrument provides for the appointment to become effective upon a later specified date or event.
V. The execution of a written instrument appointing an emergency guardianship proxy shall revoke any prior instrument appointing an emergency guardianship proxy for the minor.
463:39 Extent and Duration of Emergency Guardianship Proxy's Authority.
I. Unless specifically limited by the written instrument, the emergency guardianship proxy shall have the authority to act as a guardian of the person of the minor without direction of the court. The emergency guardianship proxy shall not have any authority to act as guardian of the estate of the minor, except that an emergency guardianship proxy shall have the authority to apply for and to receive on behalf of the minor benefits to which the minor may be entitled from or under federal, state, or local organizations or programs.
II. The emergency guardianship proxy shall expire 60 days after appointment, unless the written instrument provides for termination upon an earlier specified date or event or a court of competent jurisdiction terminates the proxy.
III. The appointment of an emergency guardianship proxy shall confer only concurrent authority over the minor, and shall not divest the parent or parents of any parental or guardianship rights.
IV. Every appointment of an emergency guardianship proxy may be amended or revoked by the appointing parent or parents at any time by promptly notifying all necessary parties of the amendment or revocation.
2 Effective Date. This act shall take effect January 1, 2000.
LBAO
99-0777
2/23/99
HB 723-FN - FISCAL NOTE
AN ACT relative to standby and emergency guardianship proxies.
FISCAL IMPACT:
The Judicial Council stated this bill could have an indeterminable impact on state expenditures. The Department of Health and Human Services stated this bill will have no fiscal impact on their department. There will be no impact on state, county and local revenue or county and local expenditures
METHODOLOGY:
The Judicial Council determined this bill will have an indeterminable impact on state expenditures because the probate courts will conduct more hearings, depending upon the number of standby guardianships for which applications are made.
The Department of Health and Human Services stated that creating standby guardianship proxies and emergency guardianship proxies impose no obligations or responsibilities on the Department.