Obtaining a guardianship over an elderly or incapacitated person requires the filing of a petition and a hearing in the probate court. This can be intimidating for people who have never been involved in the court process and for this reason, people often seek the advice of a lawyer but wonder how they will pay for it. A new bill (that has been adopted by the New Hampshire House and Senate and sent to the Governor for her signature) makes it clear that court costs, expenses and attorney’s fees will be paid by the proposed ward in most cases.
In 2012, the New Hampshire Supreme Court issued a decision in In re Guardianship of Mary Louise Eaton, and held that the statute that governs the payment of fees in guardianship cases did not require the ward to pay for attorney’s fees incurred by the person petitioning for guardianship over the proposed ward.
After much debate about whether the Eaton decision would discourage people from petitioning for guardianship over an individual clearly in need of one because they couldn’t afford it, the legislature adopted HB426. Under the new bill, unless a petition for guardianship is filed in bad faith, the petitioner’s attorney’s fees and costs will be borne by the ward if: (1) the petition is ultimately granted; (2) the payment of costs and fees will not cause undue hardship to the ward; and (3) the costs and fees are reasonable and were necessary to protect the ward.
If HB426 is signed by the Governor, it will become effective on January 1, 2015. If you have questions about how to obtain a guardianship over a loved one or a friend, please contact any of our estate planning attorneys.