New Hampshire Revised Statutes 564-E:116 – Judicial Relief
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(a) The following persons may petition a court to determine whether a power of attorney is in effect, to determine whether a power of attorney has terminated, to determine whether an agent’s authority has terminated, to determine whether a particular gift is authorized as provided in subsection (g), to determine whether a particular transaction is authorized, to construe a power of attorney or to review the agent’s conduct, and to grant appropriate relief:
(1) the principal;
(2) the agent;
(3) a guardian, conservator, or other fiduciary acting for the principal;
(4) a person authorized to make health-care decisions for the principal;
(5) the principal’s spouse, parent, or descendant;
(6) a person who would take property of the principal under the laws of intestate succession if the principal were to die at the time the petition is filed, whether or not the principal has a will;
(7) a person named as a beneficiary to receive any property, benefit, or contractual right on the principal’s death or as a beneficiary of a trust created by or for the principal that has a financial interest in the principal’s estate;
(8) the department of justice, the department of health and human services, the county attorney, or any other governmental agency having regulatory authority to protect the welfare of the principal.
(b) If there is no person specified in subsection (a) who is able or willing to file a petition for a purposes specified in subsection (a), then the court may entertain a petition for such purpose from any other interested party who or which demonstrates to the satisfaction of the court the following:
(1) sufficient knowledge of the principal to demonstrate interest in the welfare of the principal; and
(2) the lack of capacity of the principal to bring such a petition.
(c) Upon motion by the principal, the court shall dismiss a petition filed under this section, unless the court finds that the principal lacks capacity to revoke the agent’s authority or the power of attorney.
(d) The court may hold hearings, issue injunctions, make orders and decrees, and take other actions that are necessary or proper in making determinations and providing relief on matters presented by a petition filed under this section.
(e) In a proceeding under this section commenced by the filing of a petition by a person other than the agent, the court may order the agent to pay reasonable attorney’s fees to the petitioner if the court determines that the agent has clearly violated the agent’s fiduciary duties under the power of attorney or has failed without any reasonable cause or justification to submit accounts or reports after written request pursuant to N.H. Rev. Stat. § 564-E:114(h).
(f) Unless good cause is shown, court hearings conducted on a petition filed under this section shall be closed to the general public. Only the parties, their counsel, witnesses, and representatives of agencies who are present to perform their official duties shall be admitted. The records, reports, and evidence presented to the court shall be confidential. The final decision of the court shall be a public record.
(g) With regard to a petition to determine whether a particular gift is authorized,
(1) the court shall appoint a guardian ad litem if the proposed gift would benefit the agent personally or otherwise create a potential conflict of interest between the principal’s interests and the agent’s personal interests;
(2) the court shall consider all relevant factors, including, without limitation, the factors set forth in N.H. Rev. Stat. § 564-E:217(b); and
(3) the gift shall be presumed to be lawful if the power of attorney is accompanied by the disclosure statement under N.H. Rev. Stat. § 564-E:105 and the agent’s acknowledgment under N.H. Rev. Stat. § 564-E:113 and expressly grants the agent the authority to make the gift under N.H. Rev. Stat. § 564-E:201(a)(2) or (b); otherwise, the agent shall be required to prove by a preponderance of evidence that the gift was authorized and was not a result of undue influence, fraud, or misrepresentation.
(h) The department of justice, the department of health and human services, and the county attorney, shall be notified and shall have the opportunity to address the court in any proceeding under this section if the court has concerns relative to:
(1) The impact on the principal of any period of Medicaid ineligibility that would result from a proposed gift; or
(2) Whether the principal has been the victim of a crime or has been or is at risk of being abused, neglected, or exploited within the meaning of N.H. Rev. Stat. § 161-F:43.
(1) the principal;
Terms Used In New Hampshire Revised Statutes 564-E:116
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Fiduciary: A trustee, executor, or administrator.
- following: when used by way of reference to any section of these laws, shall mean the section next preceding or following that in which such reference is made, unless some other is expressly designated. See New Hampshire Revised Statutes 21:13
- Fraud: Intentional deception resulting in injury to another.
- Gift: A voluntary transfer or conveyance of property without consideration, or for less than full and adequate consideration based on fair market value.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Intestate: Dying without leaving a will.
- justice: when applied to a magistrate, shall mean a justice of a municipal court, or a justice of the peace having jurisdiction over the subject-matter. See New Hampshire Revised Statutes 21:12
- person: may extend and be applied to bodies corporate and politic as well as to individuals. See New Hampshire Revised Statutes 21:9
- petition: when used in connection with the equity jurisdiction of the superior court, and referring to a document filed with the court, shall mean complaint, and "petitioner" shall mean plaintiff. See New Hampshire Revised Statutes 21:51
- petitioner: shall mean plaintiff. See New Hampshire Revised Statutes 21:51
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
(2) the agent;
(3) a guardian, conservator, or other fiduciary acting for the principal;
(4) a person authorized to make health-care decisions for the principal;
(5) the principal’s spouse, parent, or descendant;
(6) a person who would take property of the principal under the laws of intestate succession if the principal were to die at the time the petition is filed, whether or not the principal has a will;
(7) a person named as a beneficiary to receive any property, benefit, or contractual right on the principal’s death or as a beneficiary of a trust created by or for the principal that has a financial interest in the principal’s estate;
(8) the department of justice, the department of health and human services, the county attorney, or any other governmental agency having regulatory authority to protect the welfare of the principal.
(b) If there is no person specified in subsection (a) who is able or willing to file a petition for a purposes specified in subsection (a), then the court may entertain a petition for such purpose from any other interested party who or which demonstrates to the satisfaction of the court the following:
(1) sufficient knowledge of the principal to demonstrate interest in the welfare of the principal; and
(2) the lack of capacity of the principal to bring such a petition.
(c) Upon motion by the principal, the court shall dismiss a petition filed under this section, unless the court finds that the principal lacks capacity to revoke the agent’s authority or the power of attorney.
(d) The court may hold hearings, issue injunctions, make orders and decrees, and take other actions that are necessary or proper in making determinations and providing relief on matters presented by a petition filed under this section.
(e) In a proceeding under this section commenced by the filing of a petition by a person other than the agent, the court may order the agent to pay reasonable attorney’s fees to the petitioner if the court determines that the agent has clearly violated the agent’s fiduciary duties under the power of attorney or has failed without any reasonable cause or justification to submit accounts or reports after written request pursuant to N.H. Rev. Stat. § 564-E:114(h).
(f) Unless good cause is shown, court hearings conducted on a petition filed under this section shall be closed to the general public. Only the parties, their counsel, witnesses, and representatives of agencies who are present to perform their official duties shall be admitted. The records, reports, and evidence presented to the court shall be confidential. The final decision of the court shall be a public record.
(g) With regard to a petition to determine whether a particular gift is authorized,
(1) the court shall appoint a guardian ad litem if the proposed gift would benefit the agent personally or otherwise create a potential conflict of interest between the principal’s interests and the agent’s personal interests;
(2) the court shall consider all relevant factors, including, without limitation, the factors set forth in N.H. Rev. Stat. § 564-E:217(b); and
(3) the gift shall be presumed to be lawful if the power of attorney is accompanied by the disclosure statement under N.H. Rev. Stat. § 564-E:105 and the agent’s acknowledgment under N.H. Rev. Stat. § 564-E:113 and expressly grants the agent the authority to make the gift under N.H. Rev. Stat. § 564-E:201(a)(2) or (b); otherwise, the agent shall be required to prove by a preponderance of evidence that the gift was authorized and was not a result of undue influence, fraud, or misrepresentation.
(h) The department of justice, the department of health and human services, and the county attorney, shall be notified and shall have the opportunity to address the court in any proceeding under this section if the court has concerns relative to:
(1) The impact on the principal of any period of Medicaid ineligibility that would result from a proposed gift; or
(2) Whether the principal has been the victim of a crime or has been or is at risk of being abused, neglected, or exploited within the meaning of N.H. Rev. Stat. § 161-F:43.