HB1322 (2008) Detail

Relative to hearings for incapacitated persons admitted to state institutions by their guardians.


HB 1322 – AS INTRODUCED

2008 SESSION

08-2529

09/01

HOUSE BILL 1322

AN ACT relative to hearings for incapacitated persons admitted to state institutions by their guardians.

SPONSORS: Rep. Baxley, Merr 6; Sen. Hassan, Dist 23

COMMITTEE: Judiciary

ANALYSIS

This bill establishes certain time frames and procedures for probate courts holding hearings on incapacitated persons admitted to state institutions by their guardians without probate court approval prior to the admission.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

08-2529

09/01

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Eight

AN ACT relative to hearings for incapacitated persons admitted to state institutions by their guardians.

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

1 Powers and Duties of Guardians of Incapacitated Persons; Admission to State Institution. Amend RSA 464-A:25, I(a)(2) to read as follows:

(2) A guardian may admit a ward to a state institution without prior approval of the probate court upon written certification by a physician licensed in the state of New Hampshire, or, in the case of placement in New Hampshire hospital, by a psychiatrist licensed in the state of New Hampshire, that the placement is in the ward’s best interest and is the least restrictive placement available. Within 36 hours, excluding Saturdays, Sundays and legal holidays, of such an admission of a ward to a state institution, the guardian shall submit to the probate court notice of the admission and the reasons therefor, together with a copy of the certificate by the physician or psychiatrist. Within 2 business days of receipt of the notice of admission the court shall [promptly] appoint counsel for the ward [and], provide copies of the notice and related documents to the ward and the appointed counsel, and schedule a hearing on the matter. The hearing shall be held within 5 business days of receipt of the guardian’s notice of admission. At such hearing, the guardian shall have the burden of proving, beyond a reasonable doubt, that the placement is in the ward’s best interest and is the least restrictive placement available. Immediately following the hearing, the probate court shall issue findings on the question of whether the placement is in the ward’s best interest and whether it is the least restrictive placement available. If the court finds that the placement is either not in the best interest of the ward or is not the least restrictive available placement, the court shall order the release of the ward from the placement. With the assistance of counsel, a ward may waive the hearing by filing an express written waiver with the probate court. For purposes of proceedings under this subparagraph, the ward shall have the right to legal counsel in the same manner as provided in RSA 464-A:6. The court shall also provide the ward a notice stating that the ward has the right to appointed counsel, the right to oppose the admission by the guardian, and the right to a hearing and to present evidence at that hearing. A guardian may not admit a ward to a state institution for more than 60 days for any single admission or more than 90 days in any 12-month period upon certification of a physician or psychiatrist without filing a petition requesting approval of the probate court.

2 Effective Date. This act shall take effect January 1, 2009.