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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
6th Circuit Court-Concord Probate Division
No. 2021-0118
IN RE GUARDIANSHIP OF C.R.
Submitted: January 13, 2022
Opinion Issued: February 8, 2022
John M. Formella, attorney general (Laura E. B. Lombardi, senior
assistant attorney general, on the memorandum of law), for the petitioner.
Amy B. Davidson, of Contoocook, by brief, for the respondent.
Tracy M. Culberson, of Concord, for the Office of Public Guardian, filed
no brief.
HICKS, J. The respondent, C.R. (ward), appeals an order of the Circuit
Court (Maloney, J.) appointing a guardian over her person. See RSA 464-A:9
(2018). She argues that the petitioner, New Hampshire Hospital (NHH), failed
to prove beyond a reasonable doubt that she is incapacitated. See RSA 464-
A:9, III. She also argues that the trial court’s findings of incapacity exceeded
the scope of the pleadings and evidence at trial, thereby depriving her of notice
and an opportunity to be heard. We affirm in part, vacate in part, and remand.
I. Facts
The trial court could have found the following facts. The ward suffers
from schizoaffective disorder, and, in November 2020, was involuntarily
admitted to NHH for a two-year period. At the time, she subscribed to a variety
of paranoid beliefs.
NHH obtained emergency treatment authorization to provide the ward
with psychiatric medication without her consent, see N.H. Admin. R., He-M
306, and, although her condition improved, the medication caused side effects
that required a reduction in dosage. The ward declined to take any medication
to treat the side effects or any alternative medication that would not cause the
side effects. The ward does not believe that she has a mental illness or that
she needs medication.
The emergency treatment authorization expired on January 4, 2021. In
the two weeks before the February 2021 guardianship proceeding, the ward
started exhibiting worsening thoughts that people were trying to target her, and
her mood fluctuated more, spurring concerns that the current medication was
insufficient.
NHH filed the instant guardianship petition at the end of January 2021,
alleging, among other things, that a guardianship is necessary because the
ward “states daily that she doesn’t need” her medications, “thinks she owns the
apartment building from which she was evicted,” “needs assistance in her day-
to-day activities,” and “cannot weigh the risks vs. benefits of treatment.”
Following a hearing at which the ward appeared with counsel, the trial court
granted NHH’s petition, appointing the Office of Public Guardian as guardian
over her person. This appeal followed.
II. Analysis
To obtain a guardianship under RSA chapter 464-A, the petitioner must
prove that:
(a) The person for whom a guardian is to be appointed is
incapacitated; and
(b) The guardianship is necessary as a means of providing
continuing care, supervision, and rehabilitation of the individual,
or the management of the property and financial affairs of the
incapacitated person; and
(c) There are no available alternative resources which are suitable
with respect to the incapacitated person’s welfare, safety, and
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rehabilitation or the prudent management of his or her property
and financial affairs; and
(d) The guardianship is appropriate as the least restrictive form of
intervention consistent with the preservation of the civil rights and
liberties of the proposed ward.
RSA 464-A:9, III. “[T]here is a legal presumption of capacity,” and the
petitioner must prove “the allegations set forth in the petition by competent
evidence.” RSA 464-A:8, IV (2018). “Such proof must be established beyond
reasonable doubt that the proposed ward is incapacitated and in need of a
guardian.” Id. Following the hearing, the court shall dismiss the proceedings if
it determines that the proposed ward has the capacity to care for herself, RSA
464-A:9, II, or may “enter any other appropriate order” consistent with its
findings, RSA 464-A:9, VI.
Our standard of review is established by statute. See RSA 567-A:4
(2019); see also RSA 464-A:47 (2018) (providing that appeals under RSA
chapter 464-A are governed by RSA chapter 567-A). When reviewing a trial
court decision to appoint a guardian, the trial court’s factual findings “are final
unless they are so plainly erroneous that such findings could not be reasonably
made.” RSA 567-A:4; see RSA 490-F:3 (Supp. 2021) (granting the circuit court
the jurisdiction, powers, and duties conferred on the former probate and
district courts and upon the former family division), :18 (Supp. 2021)
(providing that references to the probate or district courts or family division
shall be deemed to be to the circuit court where it has exclusive jurisdiction of
a subject matter).
Resolving the issues in this appeal requires us to engage in statutory
interpretation. We look first to the language of the statute itself, and, if
possible, construe that language according to its plain and ordinary meaning.
Anderson v. Robitaille, 172 N.H. 20, 22 (2019). We give effect to every word of
a statute whenever possible and will not consider what the legislature might
have said or add language that the legislature did not see fit to include. In re
J.P., 173 N.H. 453, 460 (2020). We also construe all parts of a statute together
to effectuate its overall purpose and avoid an absurd or unjust result.
Anderson, 172 N.H. at 22-23. We do not construe statutes in isolation;
instead, we attempt to construe them in harmony with the overall statutory
scheme. Id. at 22.
A. Sufficiency of the Evidence
The ward first argues that the evidence was insufficient to support a
finding that she is “incapacitated.” “Incapacity” is a legal, not a medical,
disability, and refers to “any person who has suffered, is suffering or is likely to
suffer substantial harm due to an inability to provide for his [or her] personal
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needs for food, clothing, shelter, health care or safety or an inability to manage
his or her property or financial affairs.” RSA 464-A:2, XI (2018). Incapacity is
measured by “functional limitations,” id., that “impair [an individual’s] ability
to participate in and perform minimal activities of daily living that secure and
maintain proper food, clothing, shelter, health care or safety for himself or
herself.” RSA 464-A:2, VII (2018). “Isolated instances of simple negligence or
improvidence, lack of resources or any act, occurrence or statement if that act,
occurrence or statement is the product of an informed judgment shall not
constitute evidence of inability to provide for personal needs or to manage
property.” RSA 464-A:2, XI.
Because the ward challenges the sufficiency of the evidence, our task is
to review the record to determine whether it supports the trial court’s findings
beyond a reasonable doubt. In re Guardianship of G.S., 157 N.H. 470, 473-74
(2008). In a sufficiency challenge, “we examine whether the [trial] court’s
actual or implicit factual findings on the statutory components required for
guardianship are reasonably supported” by the evidence. Id. at 474. However,
we defer to the court’s judgment on such issues as resolving conflicts in
testimony, measuring the credibility of witnesses, and determining the weight
to be given testimony. Id.
The ward contends that “there was not proof beyond a reasonable doubt
as to [her] incapacity, as NHH did not make a showing of substantial harm due
to inability to provide for needs.” See RSA 464-A:2, XI. We disagree.
The ward’s psychiatrist opined that the ward is unable “to care for herself
with respect to . . . her psychiatric medications, and with respect to medical
treatment.” According to the psychiatrist, the ward is unable to weigh “the
risks and benefits of proposed treatment” and incapable of making informed
decisions regarding her treatment needs. The psychiatrist further testified that
NHH evaluated the ward’s “ability to identify dangers in the home,” budget
finances, care for her home, and complete activities of daily living, and found
that the ward “needed assistance almost across the board.” The psychiatrist
opined that, without a guardianship, the ward was “likely [to] suffer substantial
harm because she can’t provide for her basic needs.” The psychiatrist noted
that, even while at NHH, the ward was unable to care for herself in that she did
not shower for 47 days; wore shoes that were three or four sizes too big, falling
apart, and held together with tape; and refused to allow staff to assess what
appeared to be a fungal infection on her feet.
As a result, the psychiatrist expressed concern about the ward’s ability to
live independently. She noted that the ward intended to return to the
apartment from which she was evicted, although she has refused to agree to
pay the $3,000 in back rent that she owes. The psychiatrist opined that “the
only safe options for discharge” were for the ward to live independently but
with assistance at home, or to live in a group home, or in an assisted living
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facility. The psychiatrist noted that the ward had “declined all of those
options.” The psychiatrist testified that if a guardian were appointed for the
ward, then the ward could be discharged from the hospital safely, she could
stabilize on her medication, and she might be able to return to independent
living. According to the psychiatrist, discharging the ward from the hospital
without a guardian would be unsafe.
Based upon this record, we conclude that the evidence was sufficient for
the trial court to have found, beyond a reasonable doubt, that the ward “is
likely to suffer substantial harm due to an inability to provide for [her] personal
needs for food, clothing, shelter, health care or safety or an inability to manage
. . . her property or financial affairs.” RSA 464-A:2, XI; see In re Guardianship
of Peter R., 159 N.H. 562, 563-64 (2009) (ruling that evidence that ward
refused to take medication recommended by his psychiatrist, had been
involuntarily admitted to NHH for a period of no more than one year with a
conditional discharge, and suffered from a psychotic disorder was sufficient to
support trial court’s finding of incapacity).
The ward next asserts that “[t]here was also insufficient testimony that
guardianship was necessary, appropriate, or least restrictive.” Before imposing
a guardianship, the trial court must find, beyond a reasonable doubt, that
“[t[he guardianship is appropriate as the least restrictive form of intervention
consistent with the preservation of the civil rights and liberties of the proposed
ward.” RSA 464-A:9, III(d). “Least restrictive form of intervention” means that
the guardianship imposed “represents only those limitations necessary to
provide him or her with needed care and rehabilitative services, and that the
ward shall enjoy the greatest amount of personal freedom and civil liberties
consistent with his or her mental and physical limitations.” RSA 464-A:2, XIV
(2018).
Contrary to the ward’s conclusory assertion, there is support in the
record for the trial court’s finding that guardianship is the least restrictive
intervention for the ward. The ward’s treating psychiatrist specifically testified
that guardianship is the least restrictive “treatment option right now” in that it
is “less restrictive than her remaining in the hospital.” The psychiatrist
explained that if a guardian were appointed, NHH “would be able to discharge
[the ward] from the hospital” and “be able to stabilize her on the psychiatric
medication.” She expressed the hope that “with the right medication,” the
ward might be able to return “to independent living, which is what she wants.”
This testimony is sufficient to support the trial court’s finding that “[t]he
guardianship is appropriate as the least restrictive form of intervention
consistent with the preservation of the civil rights and liberties of the proposed
ward.” RSA 464-A:9, III(d).
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B. Notice and Opportunity to be Heard
Next, we consider the ward’s argument that she was deprived of notice
and an opportunity to be heard as to the following legal rights that were not
specified in NHH’s petition for guardianship: (1) the right to marry or divorce;
(2) the right to make a will or waive the provisions of a will; (3) the right to hold
or obtain a motor vehicle operator’s license; (4) the right to initiate, defend, or
settle lawsuits; and (5) the right to make decisions concerning education
matters and training. The ward contends that the trial court’s finding that she
was incapacitated with regard to these rights “was tantamount to creating new
claims, without affording [her] any opportunity to oppose them before her
liberty and autonomy were further significantly curtailed.” Because we decide
cases on constitutional grounds only when necessary, see Hughes v. N.H. Div.
of Aeronautics, 152 N.H. 30, 35 (2005), we interpret the ward’s argument to be
that she did not receive the notice required by RSA chapter 464-A, and we
agree with her.
NHH correctly observes that the ward did not preserve this argument for
our review by raising it in the trial court in a motion for reconsideration. See
N.H. Dep’t of Corrections v. Butland, 147 N.H. 676, 679 (2002). “Nonetheless,
we elect to address the issue on appeal because preservation is a limitation
upon the parties to an appeal, not upon the reviewing court, and because the
appeal issue constitutes a discrete issue of statutory interpretation, requiring
no further factual development.” State v. Kardonsky, 169 N.H. 150, 152
(2016).
The goal of RSA chapter 464-A is to “protect proposed wards from
unjustified interference with civil liberties as a result of a guardianship
proceeding.” In re Guardianship of Raymond B., 163 N.H. 502, 505 (2012).
“Th[e] chapter is designed to provide procedural and substantive safeguards for
civil liberties and property rights of a proposed ward or an individual already
under guardianship powers.” RSA 464-A:1 (2018). Thus, for instance, a
petition for a guardianship, similar to a petition for juvenile delinquency or a
criminal complaint, In re DeLucca, 121 N.H. 71, 72 (1981), must provide the
ward with “adequate notice of the substance of the proceedings.” In re Russell
C., 120 N.H. 260, 262 (1980) (referring to a juvenile petition). The petition
must include sufficient information “to enable [the ward] to prepare a defense.”
In re DeLucca, 121 N.H. at 72.
Thus, RSA 464-A:5 requires that the ward be informed about “the
nature, purpose, and legal effects of the appointment of a guardian of the
person and estate, or the person, or estate.” RSA 464-A:5, I (2018) (emphasis
added). The trial court complies with this statutory requirement by appending
the petition to the orders of notice.
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NHH argues that although it provided the ward with “a list of the rights
NHH requested that the court find [the ward] incapable of exercising, the
statute does not require” that such a list be provided. (Citation omitted.) NHH
reasons, therefore, that the statute did not entitle the ward to notice of “each
and every right that the court might find the proposed ward incapable of
exercising.” We disagree.
To determine what is meant by the “legal effects of the appointment of a
guardian,” RSA 464-A:5, I, we consider RSA chapter 464-A as a whole. See
Anderson, 172 N.H. at 22-23. In so doing, we find RSA 464-A:9, IV instructive.
That provision provides:
No person determined to be incapacitated and thus requiring the
appointment of a guardian of the person and estate, or the person,
or the estate, shall be deprived of any legal rights, including the
right to marry, to obtain a motor vehicle operator’s license, to testify
in any judicial or administrative proceedings, to make a will, to
convey or hold property, or to contract, except upon specific
findings of the court. The court shall enumerate in its findings
which legal rights the proposed ward is incapable of exercising.
RSA 464-A:9, IV (2018).
Reading RSA 464-A:5, I, together with RSA 464-A:9, IV, and relying upon
the plain meaning of the language used, we conclude that the “legal effects of
the appointment of a guardian” include the “legal rights the proposed ward” is
deemed “incapable of exercising.” In other words, one of the legal effects of a
guardianship is to deprive a ward of specified legal rights.
Pursuant to RSA 464-A:5, I, therefore, the proposed ward must be
informed of the particular legal rights of which the guardianship may deprive
her. Cf. In re DeLucca, 121 N.H. at 72. Accordingly, contrary to NHH’s
argument, NHH was required to inform the ward of the specific rights it
requested the court find her to be incapable of exercising. The statute’s notice
requirement is consistent with the overall purposes of RSA chapter 464-A,
which are “to encourage the development of maximum self-reliance in the
individual; . . . encourage rehabilitative care, rather than custodial care for
incapacitated individuals; and . . . impose protective orders only to the extent
necessitated by the individual’s functional limitations.” RSA 464-A:1
(emphasis added).
Here, NHH alleged that the ward was incapable of exercising five specific
legal rights: (1) the right to travel or decide where to live; (2) the right to refuse
or consent to medical or other professional care, counseling, treatment, or
service; (3) the right to have access to, grant release of, withhold, deny, or
refuse authorization for the guardian to obtain access and release her
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confidential records and papers; (4) the right to cancel, reject, or oppose any
authority or power granted to the guardian; and (5) the right to make contracts
or grant power of attorney or other authorizations.
Although the petition informed the ward that the trial court could
“impose additional orders as a result of the hearing,” it did not inform her that
NHH was asking the court to find her incapable of exercising her rights to
marry or divorce, make a will or waive a will’s provisions, hold or obtain a
motor vehicle operator’s license, initiate/defend/settle lawsuits, or make
decisions concerning educational matters or training. (Capitalization omitted.)
Under these circumstances, we hold that the ward did not receive the notice
contemplated by RSA 464-A:5, I, as to those rights. Cf. RSA 464-A:9, IV.
Therefore, we vacate the guardianship order to the extent that it deprived her of
those rights. We otherwise affirm the order appointing a guardian over the
person of the ward and remand.
Affirmed in part; vacated in part;
and remanded.
MACDONALD, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred.
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