§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.