2005-005, IN RE GUARDIANSHIP OF THEODORE KAPITULA

and appointed the office of public guardian as guardian over his person. RSA 464-A:9, III(a)-(d) (2004), that the respondent was incapacitated,

respondent. On December 7, 2004, the probate court found, pursuant to

psychiatrist, respectively, from July to November 2004; and from the

Corson, M.D., the respondent’s primary nurse and attending the probate court heard testimony from Tracey Parks, R.N., and David Hospital filed a petition for guardianship. At the hearing on the petition,

an eighteen-month period. In November 2004, the New Hampshire

of the court's home page is: http://www.courts.state.nh.us/supreme. Internet by 9:00 a.m. on the morning of their release. The direct address address: reporter@courts.state.nh.us. Opinions are available on the

involuntarily admitted to the New Hampshire Hospital in August 2004 for The record supports the following. The respondent was

the person of the respondent, Theodore Kapitula. We affirm. Merrimack County Probate Court (Hampe, J.) appointing a guardian over BRODERICK, C.J. This appeal arises from an order of the

for the respondent, Theodore Kapitula. Soltani/Mosca P.L.L.C., of Epsom (Edward C. Mosca on the brief), opinion goes to press. Errors may be reported by E-mail at the following

attorney general, on the brief), for the State. Kelly A. Ayotte, attorney general (Lynmarie C. Cusack, assistant

any editorial errors in order that corrections may be made before the No. 2005-005 New Hampshire, One Noble Drive, Concord, New Hampshire 03301, of Merrimack County Probate Court Reports. Readers are requested to notify the Reporter, Supreme Court of

as well as formal revision before publication in the New Hampshire NOTICE: This opinion is subject to motions for rehearing under Rule 22 involve the language of RSA 464-A:9, III.

p. 2 support those findings beyond a reasonable doubt. These two issues indication of legislative intent. the proposed guardian, or appoint co-guardians, one of the either insufficient to support the probate court findings, or insufficient to in the petition and confer specific powers of guardianship on the respondent has made no argument that the evidence presented was

dismiss the petition. capacity to care for himself or his estate, the court shall

unambiguous, then we need not look beyond it for further person and estate, or the person or the estate, as requested enough weight on [his] testimony.” With regard to his first two issues, III. Alternatively, the court may appoint a guardian of the

include. court’s decision II. If it is determined that the proposed ward possesses the legislature might have said nor add words that it did not see fit to herself or his or her estate.

(b) Ascertain his or her capacity to care for himself or limitations of the proposed ward; and (a) Inquire into the nature and extent of the functional shall: I. The court, at a hearing convened under this chapter, language of the statute itself. If the language is plain and as a whole. We begin our analysis by looking to the The statute at issue reads, in pertinent part: and (3) it “placed too much weight on the petitioner’s witnesses and not legislature as expressed in the words of a statute considered

findings that were not expressly stated to be beyond a reasonable doubt; April 7, 2006). provisions”; (2) it ordered a guardianship over the person based upon In re Juvenile 2004-789-A, 153 N.H. ___, ___ (decided interpretation, which is a matter of law, we review the trial Further, in construing a statute, we will neither consider what the State v. Merriam, 150 N.H. 548, 549 (2004) (citations omitted).

interpretation, we are the final arbiter of the intent of the

Because resolution of [these issues] requires statutory

order and thus failed to satisfy that statute’s requirements that the it employed “rote recitation” of RSA 464-A:9, III(a)-(d) in its guardianship The respondent contends that the probate court erred because: (1)

This appeal followed. extent of the functional limitations of the proposed ward, and ascertain p. 3 hold a hearing, at which the court must inquire into the nature and

by RSA 464-A:9, III(a)-(d), namely:

‘in the record.’” We disagree. The statute requires that the probate court

ward’s civil rights and liberties.

thereon, the court renders the following findings as required property and financial affairs. finding . . . [because the statute] states that such a finding is to be made ultimate determinations” and “an express ‘beyond a reasonable doubt’ make “findings of basic or essential facts sufficient to support its property and financial affairs. The respondent contends that RSA 464-A:9 requires the court to rehabilitation and for the prudent management of the ward’s (Emphasis omitted.)

form of intervention consistent with the preservation of the (d) Guardianship is appropriate as the least restrictive New Hampshire Hospital and all the evidence proffered rehabilitation and for the prudent management of the ward’s consideration of the petition for guardianship filed by . . . are suitable with respect to the ward’s welfare, safety or (c) There are no available alternative resources which

for the ward’s continuing care, supervision, and (b) Guardianship is necessary as a means of providing (a) . . . Theodore Kapitula (“ward”) is incapacitated.

After a hearing held at this court, and upon due financial affairs of the incapacitated person; and RSA 464-A:9. The probate court order reads, in pertinent part: the individual, or the management of the property and

ward. preservation of the civil rights and liberties of the proposed restrictive form of intervention consistent with the (d) The guardianship is appropriate as the least management of his or her property and financial affairs; and welfare, safety, and rehabilitation or the prudent are suitable with respect to the incapacitated person’s (c) There are no available alternative resources which

providing continuing care, supervision, and rehabilitation of (b) The guardianship is necessary as a means of is incapacitated; and (a) The person for whom a guardian is to be appointed based on evidence beyond a reasonable doubt that: person and one of the estate, after finding in the record of the evidence.

p. 4 of law must be submitted to the judge of probate at the close

guardianship, we decline to read such a requirement into RSA 464-A:9. probate court’s ultimate determination concerning the need for a have obtained written findings of the material facts supporting the

paragraph III (a) through (d), and not to a recitation of the level of proof. statutory phrase “in the record” refers to the ultimate findings of

requests for findings and rulings and written memorandum decision. Unless otherwise ordered for good cause shown, all entitled to appeal therefrom made before the entry of such

has provided the specific mechanism by which the respondent could “requires an express ‘beyond a reasonable doubt’ finding.” The

determination was proved beyond a reasonable doubt. Instead, the

found by him and his rulings of law, on request of any party

made a request for findings of fact and rulings of law. As the legislature (1982), in support of his argument that the language of RSA 464-A:9 The respondent next cites State v. Radziewicz, 122 N.H. 205, 211

probate court make an express written finding that its ultimate supporting the findings”). shall be filed and recorded. to paragraph III (a) through (d). Nor does the statute require that the provide “concise and explicit statement of the underlying facts illumination of all facts used in making its ultimate findings with regard Cf. RSA 541-A:35 (1997 & Supp. 2005) (requiring administrative body to

grant or denial was made shall report the material facts

states in pertinent part: In the instant case, nothing in the record indicates that either party

writing, stating the facts found and his rulings of law, which

language of the statute requires that the probate court provide written

The judge of probate by whom a decree, order, appointment,

Similarly, RSA 567-A:4 (1997), which governs probate court proceedings,

491:14 shall, if either party requests it, give his decision in The court or justice trying causes under RSA 491:13 and beyond a reasonable doubt. That, too, was done. Nothing in the plain in the record, and must have been based upon evidence supporting them RSA 491:15 (1997) pertains to findings in the superior court and states: findings set forth in paragraph III (a) through (d). These findings must be The respondent points to RSA 491:15 as supporting his argument.

probate court may appoint a guardian over the person if it makes the the proposed ward’s capacity to care for himself. That was done. The future. p. 5 from their guardianship orders that could cause such confusion in the

we urge the probate courts to excise any unnecessary “form” language

ward”; and the notice to the ward clearly indicates the same. However, appoints the office of public guardian as “guardian over the person of the OVER THE PERSON ORDER”; the order states that the probate court

guardianship; the probate court order is captioned as a “GUARDIAN

clearly sought a guardianship over the person in its petition for

issues as resolving conflicts in testimony, measuring the credibility of recognizes in his brief, we defer to a trial court’s judgment on such

the respondent’s property or financial affairs. New Hampshire Hospital case. The record is clear that neither party elicited testimony concerning in the order for guardianship does not constitute reversible error in this

reasonably made.” RSA 567-A:4. Further, and as the respondent

not being effectuated here. The inclusion of such superfluous language

final unless they are so plainly erroneous that such findings could not be testimony.” We disagree. “The findings of fact of the judge of probate are

financial affairs, suggest that the purposes of RSA chapter 464-A were findings, in the absence of any testimony concerning his property and management of his property and financial affairs. He argues that such

much weight on the petitioner’s witnesses and not enough weight on [his] Finally, the respondent contends that the probate court “placed too

resources for, and that guardianship was necessary for, the prudent

statute where the legislature has chosen not to do so.”

decree. court is presumed to have made all findings necessary to support its “boilerplate form,” also found that there were no suitable alternative The respondent notes that the probate court, through the use of a

2004-789-A, 153 N.H. at ___.

interpreted here, should be amended, “as we will not put words into the doubt. We leave it to the legislature to determine whether the statute, as that its findings were made based upon evidence beyond a reasonable additional procedural requirement that the probate court expressly recite situation in Radziewicz, here there is no reason for us to impose the

In re Jonathan T., 148 N.H. 296, 304 (2002). Thus, unlike the

based upon that standard. Further, in the absence of specific findings, a standard of proof and mandates that the probate court make its findings standard of proof.” Id. RSA 464-A:9 explicitly sets forth the proper appeal before us disclose that the trial court has applied the proper procedural requirement that we “imposed to insure that records on N.H. at 211. We made clear in Radziewicz, however, that this was a confession was voluntary beyond a reasonable doubt. Radziewicz, 122 Miranda rights, see Miranda v. Arizona, 384 U.S. 436 (1966), and any enter an express finding that the oral or written waiver of a defendant’s respondent is correct that in Radziewicz, we instructed trial courts to whole or in part, whatever evidence was presented.”

p. 6 is, however, “within the province of the trial court to accept or reject, in

that the probate court did in this case.

had the potential to make sufficiently informed health care decisions.” It “arguable that the Probate Court simply ignored [his testimony] that [he] were subject to cross-examination. The respondent contends that it is

cannot find that no reasonable person could have come to the conclusion

DALIANIS, DUGGAN and GALWAY, JJ., concurred.

Hospital in July 2004 until late November 2004. All three individuals Affirmed.

Prison, 139 N.H. 530, 532 (1995).

149 N.H. 774, 780 (2003). Based upon our review of the record, we

treated the respondent from his admission to the New Hampshire his primary nurse, and his attending psychiatrist. Both of the latter had guardianship, the probate court heard testimony from the respondent, v. Arcidy, 138 N.H. 20, 24 (1993). At the hearing on the petition for witnesses, and determining the weight to be given to testimony. McCabe