§560:5-303 Appointment of guardian by will or other writing; effectiveness; acceptance; confirmation. (a) The appointment of a guardian under section 560:5-302 becomes effective upon:

(1) The death of the appointing parent, spouse, or reciprocal beneficiary;

(2) The adjudication of incapacity of the appointing parent, spouse, or reciprocal beneficiary; or

(3) A written determination by a physician who has examined the appointing parent, spouse, or reciprocal beneficiary that the appointing parent, spouse, or reciprocal beneficiary is no longer able to care for the incapacitated person,

whichever first occurs.

(b) Unless a person having priority under section 560:5-310 has filed an acceptance of appointment, a guardian appointed under section 560:5-302 becomes eligible to act upon the filing of an acceptance of appointment, which shall be filed within thirty days after the guardian's appointment becomes effective. The guardian shall:

(1) File the notice of acceptance of appointment and a copy of the will with the court of the circuit in which the will was or could be probated or, in the case of another appointing instrument, file the acceptance of appointment and the appointing instrument with the court in the circuit in which the incapacitated person resides or is present; and

(2) Give written notice of the acceptance of appointment to the appointing parent, spouse, or reciprocal beneficiary if living, the incapacitated person, a person having care or custody of the incapacitated person other than the appointing parent, spouse, or reciprocal beneficiary, and the adult nearest in kinship.

(c) Unless the appointment was previously confirmed by the court, the notice given under subsection (b)(2) shall include a statement of the right of those notified to terminate the appointment by filing a written objection as provided in section 560:5-302.

(d) An appointment effected by filing the guardian's acceptance under a will probated in the state of the testator's domicile is effective in this State.

(e) Unless the appointment was previously confirmed by the court, within thirty days after filing the notice and the appointing instrument, a guardian appointed under section 560:5-302 shall file a petition in the court for confirmation of the appointment. The petition shall include the information required under section 560:5-304 and detail the special circumstances of the appointment by a parent, spouse, or reciprocal beneficiary. Notice of the filing shall be given in the manner provided in section 560:5-309.

(f) The authority of a guardian appointed under section 560:5-302 terminates upon the appointment of a guardian by the court or the giving of written notice to the guardian of the filing of an objection pursuant to section 560:5-302, whichever first occurs.

(g) The appointment of a guardian under this section is not a determination of incapacity.

(h) The powers of a guardian who timely complies with the requirements of subsections (b) and (e) relate back to give acts by the guardian, which are of benefit to the incapacitated person and occurred on or after the date the appointment became effective, the same effect as those that occurred after the filing of the acceptance of appointment. [L 2004, c 161, pt of §1]

Case Notes

Under subsection (b), family court did not err in maintaining the appointment of a temporary guardian ad litem in view of the allegations of potential abuse and undue influence, as part of its continuing duty to protect the interest of the ward before the issues of the ward's capacity were resolved. 113 H. 211, 151 P.3d 692 (2007).