With our aging population, it is not uncommon for the probate division in New Hampshire to see petitions for guardianship. In these petitions, an individual (often a family member) seeks an order from the court declaring an elderly (the proposed ward) to be incapacitated and in need of a guardian. Before a guardianship will be ordered, the court must hold a hearing and conclude based on the evidence presented that the incapacity warrants a guardianship. This is an involuntary process, requiring the proposed ward to also retain counsel. It can be a somewhat involved process, and with the order of guardianship, the ward is effectively stripped of his or her civil rights – including the right to manage finances, enter into contracts, etc.
In order to protect an elderly and to ensure an elderly individual is able to manage finances, there is another court-involved option. Although not nearly as prevalent, the proposed ward may voluntarily request that the court issue a conservatorship order. With such a voluntary petition, the elderly individual basically informs the court of the need for assistance with managing and maintaining finances. The petition requests that the court appoint a conservator who then has the power and the obligation to manage the finances. The benefit to this approach is that it is a voluntary procedure. Of course, the elderly must not be incapacitated. Because it is voluntary, the elderly may, at any point, effectively revoke the conservatorship order and take over the finances again. In addition, a conservatorship provides court oversight. The appointed conservator will have an obligation to provide an initial inventory, identifying all assets that fall under the conservatorship. In addition, the conservator will be required to submit an accounting to the court on an annual basis. Conservatorship is not used with great frequency but it can, in the appropriate circumstances, be an effective way to lessen the burden on an aging family member, while providing court oversight and protection over the finances as well.
