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Bar News - March 22, 2017

Elder, Estate Planning & Probate Law: Advising Clients on Guardianships of Minors in Light of the Opiate Epidemic


The number of cases filed in pursuit of guardianship over minors in the Probate and Family divisions of the NH Circuit Court increased by 23 percent from 2011 to 2015, according to state court records. The New Hampshire Department of Health and Human Services reports that the number of people in New Hampshire who died of drug overdoses, mostly from opioids, was two and a half times greater in 2015 than in 2011. Additionally, a recent study by the Carsey School of Public Policy found that the majority of deaths for white males in New Hampshire aged 25 to 34, a population of potential fathers, resulted from drugs, alcohol, or suicide between 2010 and 2014.

Although the need for supplementation or substitution of parental rights arises in other circumstances, the impact of substance abuse on parenting cannot be ignored.

This correlation was discussed in Bar News Editor Kristen Senz’s article, “Child Welfare & Opioid Addiction - Part 2: System Strain: Impacts on Foster Care & the Courts,” published in the June 15, 2016 issue of Bar News. The article specifically highlighted the opiate epidemic’s impact on the New Hampshire Division of Children Youth and Families (DCYF), noting that nearly half of the children DCYF removed from their homes in 2015 were removed following allegations involving parental substance abuse. The opiate epidemic’s impact on users’ children may be even greater, as many children may be cared for, short of removal, by extended family or friends, through guardianships or informal arrangements.

According to a recent report from Generations United, a collaborator with the ABA Center on Children and the Law, national data suggests that for every child living in foster care with a relative, 20 children are raised by relatives outside the foster care system. That report found that 104 children living in the New Hampshire foster care system in 2014 lived with a relative. Thus, if national data supports a similar correlation here, data relating to children monitored by DCYF is only the beginning, as there could be more than 2,000 children living with relatives outside the foster care system.

Attorneys practicing in this area should be aware that a potentially large group of individuals are taking on parental responsibilities outside the foster care system and may seek legal advice on instituting a guardianship proceeding or alternative solutions if a guardianship seems too extreme for a particular family crisis.

When advising a new client contemplating the initiation of a guardianship action, an attorney’s initial goal should be to listen, asking probing questions to obtain a proper understanding of the family crisis. Information on the child’s needs, parents’ challenges, family dynamics, and client concerns is essential to properly identify the client’s goals. Based upon those goals and the severity of the family crisis, the attorney can properly assess the client’s options.

Proper explanation of the process, procedure, and legal standard for instituting a guardianship is required for a client to adequately determine how to manage his or her family situation. As attorneys practicing in this area are well aware, if both parents consent to the guardianship, RSA 463:8, III(a) only requires that the court find by a preponderance of the evidence that the guardianship will serve the best interests of the child, and that the proposed guardian is an appropriate one. If a parent objects, the court must still find that the proposed guardian is an appropriate one, but under RSA 463:8, III(b), the petitioner must “establish by clear and convincing evidence that the best interests of the minor require substitution or supplementation of parental care and supervision to provide for the essential physical and safety needs of the minor or to prevent specific, significant psychological harm to the minor.”

Thus, if a parent objects, the elevated standard for ordering a guardianship may be difficult to prove and often requires intrusion into private family matters for relevant evidence, which can negatively impact family dynamics. Given these realities, the standard can be misconstrued or misapplied if the client and/or the attorney do not appreciate the burden of proof and evidence required to meet that burden.

Potential guardians (and adults in the household), even family members, also must submit to checks on criminal background or reports of abuse, their finances can be reviewed, and their motives questioned if the guardianship is contested. Thus, the family member’s willingness to step up to care for a child can be rewarded with an unexpected invasion of privacy. Attorneys practicing in this area should advise clients that the process can be daunting and provide a realistic opinion on the likelihood of success.

Soon, House Bill 629 may impact this analysis. If passed, it would require a grandparent seeking a guardianship over a parent’s objection, due to a parent’s substance abuse or dependence, only to establish that he or she is an appropriate guardian and that, by a preponderance of the evidence, a guardianship is in the best interest of the child. Further, the bill would create a preference for appointment of a grandparent as guardian in such cases. This proposed standard would make instituting a guardianship much easier for this sector of concerned adults, and perhaps, make a guardianship their best option.

But, for now, the high standard for instituting a guardianship over a parent’s objection remains. Thus, after explaining the guardianship process and understanding the client’s goals and familial context, proper legal advice may include explaining creative alternatives to a guardianship.

A power of attorney, coupled with a residential schedule, may be appropriate for short parental absences, or where a parent only needs temporary assistance in managing parental responsibilities. Where one or both parents have a concern regarding the other’s ability to parent, innovative provisions in parenting plans may be appropriate to incorporate supervision or alternate care upon specific occurrences. If drafted properly, both alternatives provide adequate safeguards for the child’s needs through a reliable schedule and decision-making authority while also preserving parental rights.

Attorneys should be sensitive to the potentially large group of relatives who seek guardianships or informally take on parental roles, especially in the midst of the opiate epidemic. Attorneys advising clients who seek advice for managing their family crisis should be realistic in explaining the procedure and proof required for instituting a guardianship over a parent’s objection. Attorneys should also gain a proper understanding of the family crisis and pay careful attention to client goals to provide complete legal advice, which may include suggesting alternative options to a guardianship.

To learn more about the opiate epidemic and its impact on users’ children, consult:

Anna Hantz

Nicole Faille

Anna Barbara Hantz is a shareholder at Sheehan Phinney Bass & Green in Manchester. Her practice includes land use litigation, trust and estate litigation, and family law.

Nicole A. Faille is an attorney at Sheehan Phinney Bass & Green in Manchester, practicing in the areas of probate, estate planning, and family law.

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