Office of Public Guardian | Concord, NH
Frequently Asked Questions
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Who needs a guardian and why?
Adults whose decision-making ability is significantly compromised due to cognitive impairment from severe and persistent mental illness, traumatic brain injury, developmental/intellectual disability and/or dementia may need a guardian if they pose a risk to themselves or others. Examples of risk include but are not limited to inability to manage one’s activities of daily living (dressing, bathing, toileting, eating, grooming, etc.), inability to care for oneself, one’s home or pets as evidenced by hoarding, filth, poor hygiene, unpaid bills, lack of utilities, and inability or unwillingness to engage in necessary medical care, to name only a few.
What is the difference between guardianship of the person and guardianship of the estate?
Guardianship of the person allows the guardian to make certain decisions about the personal well-being of the client such as where to live, what medical treatment to receive, and whether to enter into legal proceedings. If the individual receives any type of Social Security benefits, the appointment of a Guardian of the person also requires the appointment of a Social Security representative payee (POMS (Program Operations Manual System) GN 00502.023A) to collect and manage the individual’s Social Security benefits.
Guardianship over the estate is needed if the individual has real property, automobiles, wages or other sources of income besides Social Security. No estate guardianship is merited if the individual has no real or personal property and no other income beyond public benefits.
How are guardians appointed?
Guardianship is a legal construct and as such, only a court may determine if someone’s impairment is incapacitating enough to merit appointing a guardian. A petition for guardianship must allege the specific impairment and how it creates risk of harm to the individual or others. Though guardianship is a civil proceeding overseen by Probate Court, the burden of proof is beyond a reasonable doubt because the loss of certain civil and legal rights is not taken lightly. Additionally, a person for whom guardianship is pursued is entitled to court appointed counsel.
How is OPG paid for services?
OPG has contracts with the Department of Health and Human Services to serve individuals who are already connected to community-based care systems such as Area Agency system for individuals with developmental disabilities or traumatic brain injuries, Community Mental Health system for individuals with severe mental illness, or those who have an open Adult Protective Services investigation.
OPG also serves hospitalized individuals whose incapacity prevents them from participating in discharge planning through a separate contract with the state Department of Health and Human Services.
OPG has a contract with the state Department of Corrections to provide guardianship services for incarcerated individuals. OPG also offers fee-for-service options like professional services agreements or private pay.
How do I apply for an OPG guardian?
Visit the referral/intake page and complete the intake form to the best of your ability. The more information you can provide, the easier it will be for us to make a determination of eligibility and availability. Please note, it is nearly impossible to accept a referral without a social security number. After you submit your intake form, a member of our intake team will reach out for a preliminary conversation to learn more about the situation. If we determine the proposed client may be eligible for service under one of our state contracts, we will do a warm hand-off to the correct state contact.
What oversight do OPG guardians receive?
All OPG guardians are expected to become certified by the Center for Guardianship Certification and all OPG guardians follow the NGA Professional Standards in carrying out their responsibilities. Additionally, guardianships are under Probate Court supervision and guardians must file an annual report to the court and fiduciaries must file annual accountings of financial transactions. Persons under guardianship may petition to terminate or amend their guardianship at any time, providing another check and balance in the form of judicial review of guardian performance.
How are professional guardians trained?
Most guardians have a human services background and are very familiar with the delivery systems that serve vulnerable adults in New Hampshire. Many professional guardians are Master’s prepared. New guardians receive intensive on-the-job training for at least one year, at which time, if they are ready, they will prepare for the certification exam. Certified guardians must complete continuing education credits annually that keeps their credential current and also provides information and training on developments in the practice of professional guardianship. Fiduciaries come from many backgrounds and receive comprehensive training on public benefits, guardianship, and can develop to manage trust and estate cases.
How do OPG guardians make decisions for clients?
OPG guardians follow the NGA Professional Standards. Among other provisions, guardians must employ ‘substituted decision making’ whenever possible. Substituted decision making means that the guardian will make a decision on a client’s behalf that reflects the client’s own wishes. For example, if a client has informed their guardian that they would like to remain in their home instead of a facility, the guardian will prioritize a service plan that fulfills the client’s wishes. However, if a client is refusing medication or treatment that will have an adverse impact on their well-being, a guardian will use the ‘best interests’ standard to consent to treatment on behalf of the client.
For more information, see the decision-making rubric.
What is the difference between a professional guardian and a family/friend who serves as a guardian?
Professional guardians and fiduciaries are held to a much higher standard in rendering guardianship services and must always remain objective, whereas a parent who is guardian for their adult child, for example, will be persuaded by different factors in their decision making given their dual role as parent and guardian. Professional guardians may not provide direct care, attend physician appointments, transportation or the like, whereas family/friend guardians may do so.