2011-218, In re Guardianship of Raymond B.

The petitioners, Todd and Trent Bemis, appeal an order

orally), for the respondent. Ansell & Anderson, P.A. on the brief and to press. Errors may be reported by E-mail at the following address: Marla B. Matthews on the brief, and Ms. Matthews orally), for the petitioners.

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as needs for health care, food, clothing, shelter, or safety.

p. 2 his or her inability to manage an estate, or to provide for personal specific factual allegations . . . which are claimed to demonstrate the necessity for the appointment of a guardian . . . including

the guardian of the person and estate . . . containing facts showing

A statement shall be filed with the petition for appointment of

for himself. Under RSA 464-A:4, III (2004):

susceptible of a construction that would permit the relief sought. See considered as a whole. Despres v. Hampsey final arbiters of the legislature’s intent as expressed in the words of the statute Guardians and Conservators. In matters of statutory interpretation, we are the 2 petition must contain recent evidence of the proposed ward’s inability to care

ordinary meanings to the words used. Id petition, arguing that it was “per Dr. B. objected to the request for an evaluation and moved to dismiss the dismiss by determining whether the petitioners’ allegations are reasonably

to obtain a guardianship requires interpretation of RSA chapter 464-A,

In this case, the relevant statutes make clear that a guardianship basis for legal relief. Id

is clear on its face, its meaning is not subject to modification. Id.

first examine statutory language, and, when possible, we ascribe the plain and

Evaluation” of Dr. B. Turning first to the motion to dismiss, we review the grant of a motion to

appeal both decisions. Determining whether the petitioners alleged facts that would permit them

filing of the petition.” Id. least one incidence of such behavior must have occurred within 20 days of the the granting of the motion to dismiss if the facts pleaded do not constitute a “must have occurred within 6 months prior to the filing of the petition and at inferences in the light most favorable to the petitioners. See id. We will uphold facts as alleged in the petitioners’ pleadings and construe all reasonable Dana S. Beane & Co., 160 N.H. 708, 711 (2010). We assume the truth of the

petitioners requested that the trial court order a “Geriatric Psychiatric no contact with Dr. B. after he left Florida. After filing their petition, the the seven months he had been living in New Hampshire. The petitioners had and denied the petitioners’ motion for a psychiatric evaluation. The petitioners

requires that all evidence of a proposed ward’s inability to care for himself

petition, however, contained no allegations about the doctor’s behavior during evidence of his legal incapacity at that time. See RSA 464-A:2, XI (2004). The proceedings.” Id

p. 3 the well-being of the proposed ward in involuntarily imposed protective

the guardianship chapter. The chapter’s purpose is “to promote and protect This argument misapprehends the civil liberty protection referred to in

protect through guardianship proceedings.

argue, frustrates the protection of civil rights that the legislature sought to obtaining evidence of his incapacity. Allowing this situation to continue, they constitutes an unsanctioned guardianship that has prevented them from

petition’s deficiency. They contend that the doctor’s current living arrangement

the contrary, adherence to the statutory requirements for a petition avoids

policies underlying the guardianship scheme require that we disregard their allegations of behavior within the statutory time frame, but assert that the In this case, the petitioners appear to concede that their petition lacks

that the proposed ward’s current living situation implicates civil liberties. To

himself furthers – rather than frustrates – the guardianship chapter’s policies, by proposed wards, see

probate court to disregard statutory requirements when a petitioner alleges Thus, the statute does not, as the petitioners argue, empower the

Thus, the statute requiring recent evidence of a ward’s inability to care for This reading is consistent with the presumption of competence enjoyed

past behavior, he is competent now.

3 proceeding, not to protect them from private individuals generally.

them into court without recent evidence that a guardianship is necessary. infringement upon proposed wards’ rights by preventing petitioners from haling guardianship, and must be dismissed. fails to allege such an event lacks an element necessary to obtain a requirements permit the ward to rest upon the presumption that, whatever his evidence of the proposed ward’s need for a guardian, the statutory time When a guardianship petitioner comes before the probate court without recent

unjustified interference with civil liberties as a result of a guardianship guardianship powers.” Id. These policies aim to protect proposed wards from liberties and property rights of a proposed ward or an individual already under

. It “provide[s] procedural and substantive safeguards for civil

occurred within twenty days of the petition’s filing. As a result, a petition that

necessitated by the individual’s functional limitations.” RSA 464-A:1 (2004).

guardianship petitions allege at least one event evidencing incapacity that the petition for guardianship.” Read together, these provisions mandate that incidence of such behavior must have occurred within 20 days of the filing of in the individual . . . and . . . impos[ing] protective orders only to the extent guardianship chapter, which include “encourag[ing] . . . maximum self-reliance

occurred within 6 months prior to the filing of the petition and at least one RSA 464-A:2, XI further requires that “[a]ll evidence of inability must have p. 4 Affirmed

procuring evidence of his alleged incapacity.

unwanted psychological examination outweighed the petitioners’ interests in

4

could have reasonably concluded that the doctor’s interest in freedom from an not unsustainably exercise its discretion by declining to do so. The trial court evaluation despite the inadequacy of the petitioners’ allegations, the court did

Assuming without deciding that the trial court had discretion to order an

determinative in the case; and (3) such an evaluation would be “non-invasive.” agreed the doctor’s capacity was “diminished”; (2) the extent of his capacity was HICKS, CONBOY and LYNN, JJ., concurred. They contend that not ordering an evaluation was error because: (1) the parties

frame, the trial court properly dismissed their petition. See

discretion when it denied their motion for a psychiatric evaluation of Dr. B. The petitioners next argue that the trial court unsustainably exercised its

failed to allege evidence of inability that occurred within the statutory time and we, therefore, reject the petitioners’ argument. Because the petitioners