Section 506:7 Powers of Attorney; Limitations on the Agent.
I. A petition may be filed in the superior court or the probate court for any of the purposes listed in paragraph III of this section by any of the following persons:
(a) The agent;
(b) The principal;
(c) The spouse, child, or parent of the principal;
(d) Any person who would take property of the principal under the laws of intestate succession if the principal died at the time the petition is filed, whether or not the principal has a will;
(e) Any person named in the principal's will;
(f) A treating health care provider;
(g) The department of justice, the department of health and human services, or the county attorney.
II. If there is no person specified in subparagraph I(a)-(g) who is able or willing to file a petition for the purposes listed in paragraph III, the court may entertain a petition from any other interested party who demonstrates to the satisfaction of the court the following:
(a) Sufficient knowledge of the principal to demonstrate interest in the welfare of the principal; and
(b) The lack of capacity of the principal to bring such a petition.
III. A petition may be filed for any of the following purposes:
(a) To determine whether a power of attorney is in effect or has been terminated.
(b) To determine the legality of acts, proposed acts, or omissions of the agent.
(c) To compel the agent to submit an accounting or to report his acts as agent to any of the persons designated in subparagraph I(a)-(g), if such person has made a written request of the agent for an accounting or a report and the agent has not complied with the request within 60 days after the request was made. The 60-day period shall be shortened to 7 days, if the decision at issue relates to a decision affecting health care. The time limit in this subparagraph may be shortened by court order for good cause.
(d) To declare that the power of attorney shall be terminated upon determination by the court that:
(1) The agent has violated or is unfit to perform his fiduciary duties under the power of attorney; and
(2) At the time of the determination by the court, the principal lacks the capacity to give or to revoke a power of attorney; and
(3) The termination of the power of attorney is in the best interest of the principal or of the principal's estate.
(e) To determine that particular gifts or other transactions are authorized. In determining the authority of an agent to make a gift, the court shall consider:
(1) Evidence of the principal's intent;
(2) The principal's personal history of making or joining in the making of lifetime gifts;
(3) The principal's estate plan;
(4) The principal's foreseeable obligations and maintenance needs and the impact of the proposed gift on the principal's housing options, access to care and services, and general welfare;
(5) The income, gift, estate or inheritance tax consequences of the transaction;
(6) Whether the proposed gift creates a foreseeable risk that the principal will be deprived of sufficient assets to cover his or her needs during any period of Medicaid ineligibility that would result from the proposed gift; and
(7) Whether the proposed gift is likely to result in premature or unnecessary nursing home placement or institutionalization of the principal, or compromise the principal's access to care or services in the least restrictive setting in which his or her needs can be met.
IV. (a) 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 paragraph III.
(b) When a gift or transfer made by an agent under a durable general power of attorney is challenged in a petition filed under paragraph III of this section, the gift or transfer shall be presumed to be lawful if the durable power of attorney is accompanied by the disclosure statement and acknowledgement drafted in accordance with RSA 506:6, VI and VII, and explicitly authorizes such gifts or transfers as set forth in RSA 506:6, V. However, if the petitioner establishes that the agent made a transfer for less than adequate consideration, and the transfer is not explicitly authorized by a durable power of attorney drafted in accordance with RSA 506:6, VI and VII, the agent shall be required to prove by a preponderance of evidence that the transfer was authorized and was not a result of undue influence, fraud, or misrepresentation.
V. 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 his fiduciary duties under the power of attorney or has failed without any reasonable cause or justification to submit accounts or reports after written request.
VI. 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.
VII. The probate court, prior to authorizing a lifetime gift in a proceeding under this section, 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.
VIII. The department of health and human services, county attorney, and the department of justice 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:
(a) The impact on the principal of any period of Medicaid ineligibility that would result from the proposed gift; or
(b) 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 RSA 161-F:43.
Source. 1987, 138:1. 1989, 7:3, eff. Jan. 1, 1990. 2001, 38:1-3, eff. Jan. 1, 2002; 257:2, eff. Jan. 1, 2002, at 12:01 a.m. 2003, 312:5-8, eff. Jan. 1, 2004. 2005, 71:7, eff. May 31, 2005.