Right to counsel

Key_development Question_mark

Legislation, Guardianship/Conservatorship of Adults - Protected Person

N.H. Stat. § 464-A:6(I) provides that "The right to legal counsel for any person for whom a temporary guardian or guardianship of the person and estate, or person, or estate, is sought shall be absolute and unconditional."  Additionally, the court "shall appoint counsel," if the proposed ward does not have his or her own counsel.  However, the proposed ward "shall be liable for attorneys fees unless he or she is found indigent by the probate court." N.H. Stat. § 464- A:6(II). In In re Guardianship of Eaton, 42 A.3d 799 (N.H. 2012), the high court found that the language of § 464-A:43 (another part of the guardianship code) did not entitle the petitioner in a guardianship case to recoup attorney's fees from the ward where the petitioner acts in good faith.


The right to counsel in guardianship extends to the termination of guardianship proceeding. N.H. Stat. § 464-A:40(II)(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..."); In Re Williams, 159 N.H. 318 (2009) ("At the termination hearing, conducted in a manner similar to that of the guardianship hearing and with the ward's rights protected by counsel, the burden is on the guardian to prove that the grounds for the appointment of the guardian continue to exist, see RSA 464-A:40, II(c) ...")

Appointment of Counsel: categorical Qualified: no