4/12/01...0738s

31may01...1171h

2001 SESSION

01-0409

09/01

SENATE BILL 62

COMMITTEE: Judiciary

ANALYSIS

This bill requires that the probate court check the criminal record of any proposed guardian and check for records of child abuse or neglect in the case of a proposed guardian of a minor. The bill establishes new probate court procedures for termination of guardianships and the transfer of foreign guardianship orders. The bill also increases the filing time for the annual report of the person in guardianships for incapacitated persons.

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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

4/12/01...0738s

31may01...1171h

01-0409

09/01

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand One

Be it Enacted by the Senate and House of Representatives in General Court convened:

146:1 New Paragraph; Procedure for Appointment of Guardians of Minors; Criminal Records and Abuse and Neglect Registry Check. Amend RSA 463:5 by inserting after paragraph V the following new paragraph:

VI.(a) In all guardianships of the person, except when an agency or institution is named as the proposed guardian, the court shall review the proposed guardian's record of criminal convictions maintained by the New Hampshire division of state police and any record of founded complaints of child abuse or neglect by the proposed guardian in the child abuse and neglect registry maintained by the department of health and human services.

(b) The petitioner shall file releases provided by the court and signed by the proposed guardian authorizing the release of any record of criminal convictions and a search of the abuse and neglect registry. The court may, in its discretion, accept a petition without the signed releases and may appoint a guardian prior to receiving the proposed guardian's record of criminal convictions or the results of the search of the abuse and neglect registry or both. When the court appoints a guardian prior to the receipt of the records, the court shall review the records upon their receipt and may reexamine the appointment of the guardian based on the information contained in the records.

(c) The court may, in its discretion, request the same information from similar agencies in other states as appropriate.

146:2 New Subdivision; Transfer of Foreign Guardianship Orders. Amend RSA 463 by inserting after section 32 the following new subdivision:

Transfer of Foreign Guardianship Orders

463:32-a Temporary Recognition of Foreign Guardianships of the Person. Any person who has been appointed guardian of the person of a minor by a foreign court of competent jurisdiction, for a minor who is temporarily in this state, shall be accorded the powers of guardianship as reflected in the order appointing the guardian, with full faith and credit, for a period of time not exceeding 120 days.

463:32-b Transfer of Guardianships from Foreign Jurisdictions.

I. Any person who has been appointed guardian of the person or estate or both, by a foreign court of competent jurisdiction, for a minor who has become a resident of this state, or who intends to move to this state, shall be accorded the powers of guardianship as reflected in the order appointing the guardian, with full faith and credit, for a period of time not exceeding 120 days following the date of the ward's residence in this state. If a petition for transfer of the guardianship is filed within 120 days of the date of the minor's residence in this state, such guardianship shall continue until an order is issued on the petition for transfer.

II. The transfer of an existing guardianship that has been established by a foreign court of competent jurisdiction shall not require this state's court to make a determination of the appropriateness of the guardian's appointment or assigned powers and responsibilities unless the court is specifically requested to do so.

III. All procedure and notice requirements in RSA 463:5 and 463:6 shall apply to a petition to transfer an existing guardianship; except that the statement required in RSA 463:5, V shall be limited to the reason or reasons for the transfer of the guardianship.

IV. The petition for transfer of an existing guardianship shall be accompanied by a certified copy of the original appointment and any amendments or modifications to the foreign guardianship order entered subsequent to the original order.

463:32-c Transfer of Guardianships to Foreign Jurisdictions.

I.(a) If a minor has moved permanently to a foreign jurisdiction, the guardian shall file a motion to transfer the guardianship to a foreign court of competent jurisdiction.

(b) A minor shall be presumed to have moved permanently if he or she has resided in the foreign jurisdiction for more than 12 consecutive months, or if the guardian notifies the court that the minor intends to move or has moved permanently to the foreign jurisdiction.

(c) A motion to transfer a guardianship to a foreign jurisdiction shall include documentation from the foreign court accepting the guardianship or a certified copy of an appointment of guardianship issued by the foreign court of competent jurisdiction.

II. Upon receipt and acceptance of a motion to transfer to a foreign jurisdiction:

(a) A guardian of the person shall be discharged; and

(b) A guardian of the estate shall file a final account with the court within 90 days after the date of the court order accepting the motion to transfer. Upon approval of the account, the guardian shall be discharged and his or her bond released.

146:3 New Paragraph; Procedure for Court Appointment of Guardian of Incapacitated Person; Criminal Record Check. Amend RSA 464-A:4 by inserting after paragraph IV the following new paragraph:

V.(a) In all guardianships of the person, except when an agency or institution is named as the proposed guardian, the court shall review the proposed guardian's record of criminal convictions maintained by the New Hampshire division of state police.

(b) The petitioner shall file a release provided by the court and signed by the proposed guardian authorizing the release of any record of criminal convictions. The court may, in its discretion, accept a petition without the signed release and may appoint a guardian prior to receiving the proposed guardian's record of criminal convictions. When the court appoints a guardian prior to the receipt of the record of criminal convictions, the court shall review the record upon receipt and may reexamine the appointment of the guardian based on the information contained in the record.

(c) The court may, in its discretion, request a search of the abuse and neglect registry maintained by the department of health and human services.

(d) The court may, in its discretion, request the same information from similar agencies in other states as appropriate.

146:4 Annual Report of Guardian of the Person; Increased Time Allowed for Filing. Amend the introductory paragraph of RSA 464-A:35, I to read as follows:

I. A guardian of the person shall file an annual report under oath with the court within [30] 90 days after the anniversary date of the guardian's appointment, or be in default. The register of probate shall give notice of the default to the guardian by first class mail within 10 days after the default. The register of probate shall issue a citation notice in accordance with RSA 548:5-a. The report shall contain a brief summary of the present status of the ward including, but not limited to:

146:5 New Paragraph; Termination of Temporary Guardianship. Amend RSA 464-A:12 by inserting after paragraph V the following new paragraph:

VI. The appointment of a guardian pursuant to RSA 464-A:9 terminates the powers of a temporary guardian appointed under this section, except for the rendering of the final account of the temporary guardian.

146:6 Resignation, Removal, or Death of Guardian. RSA 464-A:39 is repealed and reenacted to read as follows:

464-A:39 Resignation, Removal, or Death of Guardian.

I. Any person appointed as guardian of the person or an estate or both shall serve until:

(a) His or her resignation is accepted by the court;

(b) He or she dies;

(c) The court finds removal of the guardian to be in the ward's best interests; or

(d) The guardianship is terminated pursuant to this section or RSA 464-A:40.

II. A guardian seeking to resign shall file a motion for court approval of the resignation. Resignation of a guardian is not effective until accepted by the court and a successor guardian is appointed or the guardianship is terminated.

III. The ward or any person interested in the ward's welfare may file a motion for the removal of the guardian of the person or the estate or both, if removal would be in the ward's best interests.

IV. The guardianship shall not terminate with the resignation, removal, or death of the guardian, unless the court order expressly terminates the guardianship. If the guardianship is not terminated, the court shall appoint a successor guardian.

V. The resignation accepted by the court, removal, death of the guardian, or termination of the guardianship shall terminate the authority of the guardian, but shall not release the guardian from responsibility for any act or omission occurring during the period of the guardian's appointment.

VI. Any resignation or removal may be conditioned on such requirements or occurrences as the court may specify in the exercise of its reasonable discretion. The court may make such further orders as may be appropriate, including requiring a final account.

146:7 Termination of Guardianship. RSA 464-A:40 is repealed and reenacted to read as follows:

464-A:40 Termination of Guardianship.

I. A guardianship of the person or of the estate shall terminate upon order of the court, the death of the ward, or upon a finding by the court that the ward is no longer incapacitated.

II.(a) The ward or any person interested in the ward's welfare may, at any time, file a motion for the termination of the guardianship based upon a finding that the ward is no longer incapacitated. Provided, however, an order adjudicating incapacity may specify a minimum period, not exceeding one year, during which no motion concerning such adjudication may be filed without special leave.

(b) A ward may request the termination of the guardianship based on a finding that he or she is no longer incapacitated in an informal letter to the court or judge. Persons directly responsible for the care and supervision of the ward may assist the ward in preparing a letter of this kind. Any person who knowingly interferes with a transmission made by, or on behalf of, a ward to the court or judge may be adjudged guilty of contempt of court.

(c) Unless the motion is without merit, the court shall hold a hearing similar to that provided for in RSA 464-A:8 and RSA 464-A:9 at which the guardian shall be required to prove that the grounds for appointment of a guardian provided in RSA 464-A:9 continue to exist.

III. Upon termination of a guardianship of the estate, the guardian shall file a final account with the court within 90 days after the date of termination, or as ordered by the court. When the guardianship is terminated as a result of the ward's death, the guardian shall include a copy of the death certificate. Upon approval of the account, the guardian shall be discharged and his or her bond released.

IV. Upon termination of a guardianship of the person resulting from the death of the ward, the guardian shall provide a copy of the death certificate to the court within 30 days of the ward's death. Upon receipt of the death certificate, the guardian shall be discharged.

146:8 Temporary Recognition of Foreign Guardianships and Conservatorships. RSA 464-A:44 is repealed and reenacted to read as follows:

464-A:44 Temporary Recognition of Foreign Guardianships and Conservatorships.

I. Any person who has been appointed guardian of the estate or conservator for any ward by a court of competent jurisdiction in any other state shall, upon petition and filing of a certified copy of that appointment with the court, be appointed guardian of the estate or conservator of the ward in this state without further notice or hearing. The court, as a condition of appointment, may require the guardian or conservator to post an adequate surety bond to insure the faithful performance of his or her duties. Upon such appointment, the foreign guardian of the estate or conservator may deal with the estate of the ward situated in this state in the same manner as a resident guardian of the estate or conservator and in accordance with RSA 464-A:27. The foreign guardian of the estate or conservator shall account to the court of his or her original appointment for the proceeds from the sale of any of the ward's estate situated in this state. A certified copy of the approved account shall be filed with the court in this state prior to discharge of the guardian of the estate or conservator. In lieu of a certified copy of an approved account, the guardian or conservator may file an affidavit stating that the assets of the ward situated in this state have been transferred to the estate of the ward in the foreign jurisdiction. Upon receipt of the affidavit, the court in this state shall discharge the guardian of the estate or conservator. No term of guardianship or conservatorship under this section shall exceed 30 months, unless for good cause shown and within the discretion of the court.

II. Any person who has been appointed guardian of the person for a person who is temporarily in this state by a court of competent jurisdiction in any other state shall be accorded the powers of guardianship as reflected in the order appointing the guardian, with full faith and credit.

146:9 New Sections; Procedures for Transfers of Foreign Guardianship Orders. Amend RSA 464-A by inserting after section 44 the following new sections:

464-A:45 Transfer of Guardianships From Foreign Jurisdictions.

I. Any person who has been appointed guardian of the person or estate or both by a foreign court of competent jurisdiction, for a person who has become a resident of this state, or who intends to move to this state, shall be accorded the powers of guardianship as reflected in the order appointing the guardian, with full faith and credit, for 120 days following the date of the ward's residence in this state or until an order is issued on a petition for transfer of the guardianship filed within 120 days of the date of the ward's residence in this state.

II. The transfer of an existing guardianship that has been established by a foreign court of competent jurisdiction shall not require this state's court to make a determination of the ward's incapacity or the appropriateness of the guardian's appointment or assigned powers and responsibilities unless the court is specifically requested to do so.

III. All procedure and notice requirements found in RSA 464-A:4 and RSA 464-A:5 shall apply to a petition to transfer an existing guardianship; except that the statement required in RSA 464-A:4, III shall be limited to the reason or reasons for the transfer of the guardianship.

IV. The petition for transfer of an existing guardianship shall be accompanied by a certified copy of the original appointment and any amendments or modifications to the foreign guardianship order entered subsequent to the original order.

464-A:46 Transfer of Guardianships to Foreign Jurisdictions.

I.(a) If a ward has moved permanently to a foreign jurisdiction, the guardian shall file a motion to transfer the guardianship to a foreign court of competent jurisdiction.

(b) A ward shall be presumed to have moved permanently if he or she has resided in the foreign jurisdiction for more than 12 consecutive months, or if the guardian notifies the court that the ward intends to move or has moved permanently to the foreign jurisdiction.

(c) A motion to transfer a guardianship to a foreign jurisdiction shall include documentation from the foreign court accepting the guardianship or a certified copy of an appointment of guardianship issued by the foreign court of competent jurisdiction.

II. Upon receipt and acceptance of a motion to transfer to a foreign jurisdiction:

(a) A guardian of the person shall be discharged; and

(b) A guardian of the estate shall file a final account with the court within 90 days after the date of the court order accepting the motion to transfer. Upon approval of the account, the guardian shall be discharged and his or her bond released.

464-A:47 Appeals to Supreme Court. Appeals under this chapter to the supreme court shall be made in accordance with RSA 567-A. However, no order of the probate court shall be stayed pending appeal except by order of the probate court judge or the supreme court.

146:10 Effective Date. This act shall take effect January 1, 2002.

(Approved: June 29, 2001)

(Effective Date: January 1, 2002)