In New Hampshire, a child who turns eighteen (18) is considered an adult regardless of capacity. After that “magic” age, parents (or other family members or interested parties filling in the role of parents) no longer have the legal authority, without written authorization, to speak with a child’s doctors about medical treatment or work with the school system on such child’s behalf. Depending upon your child’s ability to manage his or her affairs independently, you may need to consider filing for guardianship in order to continue assisting your child with daily decision making
There are two basic types of guardianship: (a) guardianship over the estate; and (b) guardianship over the person. To the extent a child owns assets, guardianship over the estate may be required to authorize a parent to handle such assets and make other financial decisions. In contrast, guardianship over the person encompasses the broad range of other life decisions, including education and health care, as well as where a child will live. Parents may file for either type of guardianship, or both simultaneously, and may request that a guardianship be either temporary or enduring depending on the circumstances.
In order to grant a petition for guardianship, the probate court must find that the proposed ward (i.e., the adult child) is “incapacitated.” An adult person may be declared legally incapacitated if such person “has suffered, is suffering or is likely to suffer substantial harm due to an inability to provide for his personal needs for food, clothing, shelter, health care or safety or an inability to manage his or her property or financial affairs.” Before a court appoints a guardian, the person filing for guardianship must provide evidence that the child cannot provide for his or her own personal needs and safety, or manage finances and property. Instances of behavior showing the need for a guardian must exist during the past six months, and at least one instance must have occurred within 20 days immediately before the petition is filed. A single instance of bad decision making generally will not be enough for a court to appoint a guardian.
In order to preserve a child’s rights once he or she turns 18, the probate court must find that guardianship is the “least restrictive form of intervention” needed to protect the child. If a child has the mental capacity to make financial and/or health care decisions but otherwise would benefit from a parent’s continued assistance after age 18, guardianship may be too restrictive. A less restrictive alternative may be for the child to sign HIPAA releases granting the parent access to confidential health care information, as well as a power of attorney document that is limited in scope so the parent may continue to assist the child, as needed, with educational and financial matters.