CHAPTER Gal 500 ETHICAL STANDARDS AND STANDARDS OF
PRACTICE
PART Gal 501 PURPOSE AND SCOPE
Gal 501.01 Purpose. The purpose of this chapter is to:
(a) Inform guardians ad
litem certified in New Hampshire of certain requirements of their roles when
appointed to a case by a court;
(b) Inform members of the public of the ethical
standards and standards of practice applicable to guardians ad litem certified
in New Hampshire; and
(c) Establish ethical standards and standards of
practice to maintain a high standard of integrity and professionalism in the
activities of guardians ad litem certified in this
state.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
Gal 501.02 Scope. These rules shall be binding upon:
(a) Every person who holds board certification of
any type as a guardian ad litem in the state of New Hampshire; and
(b) In accordance with RSA 490-C:4, I (e), formerly certified guardians ad litem alleged to
have engaged in acts or omissions prohibited when certified.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
PART Gal 502 DEFINITIONS
Gal
502.01 “Appointing
court” means a court which appoints a guardian ad litem to serve in a
particular case.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
Gal 502.02 “Central
registry of founded abuse and neglect reports” means the registry established
under RSA 169-C:35.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
Gal 502.03 “Constituent” means
a person who is a resident of a community represented by an elected official.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff 10-21-16
Gal 502.04 “Elected
official” means any person who has been elected to a public office of any type,
whether at the local, school district, county, state, federal, or any other
level.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
Gal 502.05 “Frivolous”
means without merit and without a good faith justification in fact, allegations
of fact, law, or reason.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
Gal 502.06 “Good faith”
means a subjective state of mind or a set of circumstances involving an honest
belief that is:
(a) Based upon reason and facts or allegations of
fact; and
(b) Not formed to accomplish a violation of the
law, to advance a malicious objective, or to advance an objective that is not
allowed by law.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
Gal 502.07 “Party” means a
person or entity against or by whom a civil, criminal, equity or other court
proceeding of any type is directly brought or maintained, or who intervenes in
such proceeding and is granted the status of a party, and not the attorney of
that person or entity.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
Gal 502.08 “Publicly-funded
case” means a case in which the costs or expenses of one or more of the parties
are paid by the state, or any political subdivision of the state, whether or
not those costs or expenses are subsequently reimbursed.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
Gal 502.09 “Specific
court” means the particular court that hears cases arising in a defined
geographical area, such as a particular superior court which hears cases that
arise in a particular county, for example, the Superior Court of Merrimack
County, or a particular district court hearing cases that arise in a particular
municipality or group of municipalities, for example, the Claremont District
Court.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
Gal 502.10 “Writing”
means a hard-copy paper document, an e-mail, a facsimile transmission, or an
electronic communication of words in other than an oral format, which can be
printed onto paper.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
PART Gal 503 GENERAL ETHICAL STANDARDS AND
STANDARDS OF PRACTICE
Gal 503.01 Applicability
of Sanctions for Violations of Ethical Standards and Standards of Practice.
(a) All guardians ad litem certified by the board
shall abide by the ethical standards and standards of practice set forth in
this chapter.
(b) All persons presently or formerly certified
under RSA 490-C shall be deemed to have knowledge of the existence of these
ethical standards and standards of practice and to have familiarity with their
provisions.
(c) A finding by the board that a guardian ad litem
presently certified by the board has violated these ethical standards and
standards of practice shall result in the imposition of sanctions unless the
board determines that the matter involves extenuating circumstances, determined
according to the standards set forth in paragraph (e) below.
(d) In accordance with RSA 490-C:4, I (e), a finding by the board that a formerly certified
guardian ad litem alleged to have engaged in acts or omissions prohibited when
certified has violated these ethical standards and standards of practice shall
result in the imposition of sanctions unless the board determines that the
matter involves extenuating circumstances, determined according to the
standards set forth in paragraph (e) below.
(e) The board shall find that extenuating
circumstances exist if it determines that:
(1) Imposing
sanctions would not assist the person in conforming
his or her future conduct to the requirements of these rules or other
applicable law;
(2) The
purposes that would be served by imposing sanctions have been fully fulfilled;
(3) The absence
of imposing sanctions would be unlikely to pose a risk of harm to the interests
or welfare of any recipient of services or potential recipient of services; and
(4) The reasons
supporting the decision not to impose sanctions outweigh any adverse impact on
general deterrence or on public perception that may arise from the absence of
sanctions.
(f) Unless the board determines that extenuating
circumstances exist under paragraph (e) above, a finding by an appointing court
that a guardian ad litem, or formerly certified guardian ad litem within the
meaning of RSA 490-C:4, I (e), has violated any of the
following shall be grounds for discipline and shall result in sanctions by the
board under these ethical standards and standards of practice:
(1) Any statute
relating to the duties and activities of, or the procedures applicable to,
guardians ad litem, either in general or in regard to the particular type of
case to which he or she has been appointed;
(2) The rules,
standing orders or administrative orders of the appointing court, including any
applicable guidelines for guardians ad litem adopted under RSA 461-A:16 or
other law; or
(3) Any
standards of court practice or protocols found by the court to be applicable to
the guardian ad litem in the case to which he or she has been appointed.
(g) Pursuant to RSA 490-C:4,
I (g), upon the receipt of a written allegation or complaint against a
certified or formerly certified guardian ad litem who holds, held or may hold
an appointment in a case under the authority of a court, the board may refer
that matter to the appropriate court for investigation, resolution or other
action, either in lieu of, or in addition to, the investigatory or disciplinary
procedures of the board.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
Gal 503.02 General
Obligations of All Guardians Ad Litem.
(a) Unless otherwise specified in an order or
other instruction of the appointing court, a guardian ad litem shall at all
times act as a reasonable person would in the best interests of the recipient
of services.
(b) A guardian ad litem shall reach an
independent conclusion about what is in the best interest of the recipient of
services or such other matter as may be required by the orders or instructions
of the appointing court.
(c) A guardian ad litem shall perform those
duties assigned to him or her by the appointing court.
(d) A guardian ad litem shall, in good faith:
(1) Formulate a
recommendation, or such other report as is directed by the appointing court, as
is intended to address the best interests of the recipient of services or such
other matter as directed by the orders or other instructions of the appointing
court; and
(2) Develop a
presentation to the court that is designed to achieve results that are in the best
interests of the recipient of services or such other result as set forth in the
orders or other instructions of the appointing court.
(e) A guardian ad litem who believes that he or
she is deficient in skill or knowledge regarding a material issue in a case
shall take such action as he or she, in good faith, believes:
(1) Will enable
him or her to obtain such skill or knowledge; and
(2) Is
consistent with the best interests of the recipient of services.
(f) A guardian ad litem shall seek to enlist the
assistance of a person or persons that the guardian ad litem believes, in good
faith, possesses skill and knowledge relative to a material issue if the
guardian ad litem believes that to do so is necessary under paragraph (e)
above.
(g) If a guardian ad litem believes, in good
faith, that there is no action that will enable him or her to obtain the skill
or knowledge necessary under paragraph (e) above, the guardian ad litem shall
so advise the appointing court.
(h) A guardian ad litem shall comply with all
statutes and case law relating to the duties and activities of, and the
procedures applicable to, guardians ad litem in general and to the duties and
activities of, and procedures applicable to, guardians
ad litem in the particular type of case to which he or she has been appointed.
(i) A guardian ad
litem shall be able to identify the material legal and factual issues raised in
the proceeding in which he or she serves.
(j) A guardian ad litem shall make those reports
required by the Child Protection Act, RSA 169-C:29.
(k) A guardian ad litem shall make those reports
required by RSA 161-F: 46.
Source. #8941,
eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
Gal 503.03 Timeliness. A guardian ad litem shall:
(a) Undertake actions on behalf of a recipient of
services in a manner that is sufficiently timely to avoid prejudice to the best
interests of the recipient of services or such other object of appointment as
specified in the orders or other instructions of the appointing court;
(b) Adhere to all applicable deadlines imposed by
an appointing court or by statute;
(c) Timely appear for all scheduled hearings,
conferences, mediation sessions and other court proceedings, unless excused by
the court; and
(d) Timely appear for all appointments with a
recipient of services, witness, attorneys, or other individual involved in a
case to which a guardian ad litem has been appointed, unless:
(1) Alternative arrangements have been made in advance
of the time scheduled for an appointment; or
(2) The
inability to timely appear for the appointment is due to circumstances beyond the
control of the guardian ad litem and the reasons for the inability to appear
are conveyed as soon as is practicable to the person with whom the appointment
was made.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
Gal 503.04 Competency.
(a) A guardian ad litem shall carry out the
duties of his or her appointment with sufficient competence to complete the
work without avoidable harm to the best interests of the recipient of services.
(b) The competence required by (a) above shall
include:
(1) Diligence,
attention to detail, and promptness in the scheduling and performance of the
duties of the appointment;
(2) Preparation
for the meetings, interviews, and court appearances required by the
appointment;
(3) Knowledge
of the New Hampshire statutory and case law applicable to the duties of a
guardian ad litem in the type of case to which he or she has been appointed;
(4) Knowledge
of these rules; and
(5) Knowledge
of the procedures and requirements of the appointing court sufficient to carry
out the duties of the appointment.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
Gal 503.05 Advocacy.
(a) A guardian ad litem shall not adopt or assert
a position, or make a recommendation, unless he or she possesses a basis for doing
so that is not frivolous.
(b) A position adopted or asserted under (a)
above may include a good faith argument for the extension, modification, or
reversal of existing law.
(c) A guardian ad litem shall endeavor to expedite
the conclusion of the case to the extent that he or she, in good faith,
believes that to do so is consistent with the best interests of the recipient
of services or such other purpose of his or her appointment as is set forth in
the orders or other instructions of the appointing court.
Source. #8941, eff 9-15-07,
EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
Gal 503.06 Disclosures,
Conflicts of Interest and Appearances of Impropriety.
(a) A guardian ad litem who is aware that he or
she possesses a prior acquaintance of any type, including but not limited to a
professional, personal, or financial relationship, with any party in a case,
shall:
(1) At or
before the time of appointment, disclose such fact to the parties and the
appointing court, either orally or in writing; and
(2) If such an
acquaintance becomes known only after appointment, immediately disclose such fact
to the parties and the appointing court, either orally or in writing.
(b) A guardian ad litem shall:
(1) Seek to
decline appointment in a proceeding where he or she has a present or prior
personal, professional, business or legal relationship with any party involved
in the proceeding that the guardian reasonably believes would adversely impact
upon his or her ability to perform the functions of a guardian ad litem in
accordance with these rules and in accordance with any requirements of the appointing
court; and
(2) If a
relationship described in (a) (1) above arises after appointment, advise the
court of the existence of such a relationship and seek an order regarding
whether or not he or she must withdraw.
(c) If it is alleged by a party to any proceeding
in which a guardian ad litem is appointed that the guardian ad litem has failed
to disclose any present or prior acquaintance of any type that impacts upon his
or her objectivity, or upon his or her ability to perform the functions of a guardian
ad litem in accordance with these rules or in accordance with requirements of
the appointing court, the guardian ad litem shall:
(1) Inform the
appointing court that the allegation has been made; and
(2) Respond
either orally or in writing to the appointing court and to all parties
regarding the nature of the present or prior acquaintance, if any.
(d) A guardian ad litem shall immediately
disclose to the appointing court and to the board the existence of any civil,
equity or other writ or petition, or criminal charge, of which he or she is
aware alleging that any of the following persons have engaged in child abuse or
neglect, as that term is used within the meaning of RSA 169-C, or that any of
the following persons have engaged in adult abuse, as that term is used within
the meaning of RSA 161-F:
(1) The
guardian ad litem him or herself;
(2) The
guardian ad litem’s spouse;
(3) The parent
or guardian of a child of the guardian ad litem where the child is the alleged
victim; or
(4) Any person
with whom the guardian ad litem resides.
(e) Unless otherwise allowed by the appointing
court after disclosure by the guardian ad litem, no guardian ad litem shall
serve on any case if a civil, equity or other writ or petition, or criminal charge,
of child abuse or neglect, or adult abuse in violation of RSA 161-F, is pending
against him or her.
(f) If a guardian ad litem is a party to any case
in a specific court, other than in his or her capacity as a guardian ad litem,
he or she shall not serve as a guardian ad litem in that specific court
unless:
(1) He or she
immediately discloses to the judge making the appointment that he or she is a
party to a case in the specific court, as well as the name and nature of any such
case and requests direction from the appointing court as to service or
continued service as a guardian ad litem; and
(2) After such
disclosure, the judge appoints the person to serve as a guardian ad litem, or
consents to the person’s continued service as a guardian ad litem, provided
that during the pendency of any decision by the appointing court as to
continued service, the guardian ad litem may continue to serve.
(g) No person shall serve as a guardian ad litem
if that person is a party to a pending, contested matter, other than in his or
her capacity as a guardian ad litem, involving issues of fact or law similar
to, or the same as, those that may be raised in a case to which the person may
be appointed as guardian ad litem unless:
(1) He or she
immediately discloses to the judge making the appointment that he or she is a
party to the pending, contested matter involving issues of fact or law similar
to, or the same as, those that might be raised in a case to which the person
might be appointed as guardian ad litem, as well as the name and nature of any
such case and requests direction from the appointing court as to service or
continued service as a guardian ad litem; and
(2) After such
disclosure, the judge appoints the person to serve as a guardian ad litem, or
consents to the person’s continued service as a guardian ad litem, provided
that during the pendency of any decision by the appointing court as to
continued service, the guardian ad litem may continue to serve.
(h) Whenever a guardian ad litem is, or becomes,
a party, except solely by virtue of his or her appointment as a guardian ad
litem, to any proceeding in any court, regardless of the capacity in which he
or she is named as a party, the guardian ad litem shall immediately notify the
following authorities of the existence of the case, describing the nature of
the case in such notification:
(1) The
appointing court;
(2) The
administrative judge designated under New Hampshire supreme court rule 54 for
each court in which the person is serving as a guardian ad litem, or, if the
guardian ad litem is appearing before the supreme court, the clerk of the
supreme court; and
(3) The board.
(i) A guardian ad
litem shall not serve in a case if he or she has any financial relationship
with any counsel on the case or any material witness unless:
(1) He or she
immediately discloses to the judge making the appointment that he or she has
such a financial relationship, as well as the nature of any such relationship
and requests direction from the appointing court as to service or continued
service as a guardian ad litem; and
(2) After such
disclosure, the judge appoints the person to serve as a guardian ad litem, or
consents to the person’s continued service as a guardian ad litem provided that
during the pendency of any decision by the appointing court as to continued
service, the guardian ad litem may continue to serve.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
Gal 503.07 Business
Transactions.
(a) Except for the guardian ad litem’s fee agreement, a guardian ad litem shall not,
during the term of his or her appointment, enter into any business transaction
with a recipient of services, a party, counsel for a
party, or a material witness.
(b) A guardian ad litem shall not possess an
ownership, possessory, security, or other pecuniary interest of any type that
is unfavorable to a recipient of services, unless the appointing court, after
full disclosure to it of the nature of the interest, allows the guardian ad
litem to serve while still in the possession of the interest.
(c) Except for the guardian ad litem’s fee agreement, a guardian ad litem shall not,
without the express written agreement of all of the parties, enter into a
business relationship of any type with any of the following persons during the
time of the guardian ad litem’s appointment in a case,
or for a period of 6 months after the appointment has ended:
(1) The
recipient of services; or
(2) If the case
to which the guardian ad litem was appointed involved child custody, any party
to the case.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
Gal 503.08 Special Rules Regarding
Guardians Ad Litem Who Are Elected Officials. A guardian ad litem who is an elected
official shall, if one or more but not all parties to the proceeding are his or
her constituents, disclose this fact to the appointing court and to all parties
to the proceeding, either orally or in writing, at or before the time of
appointment, or, if elected after appointment in an ongoing matter, at the time
of election.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
Gal 503.09 Communication
of Information About Services and Qualifications. A guardian ad litem shall not knowingly
misrepresent his or her experience, education, certifications, or skills.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
Gal 503.10 Fees.
(a) A guardian ad litem appointed by a court and paid
by public funds shall not accept any additional payment from any party or other
source for services performed on the case, unless otherwise authorized by the
court, provided, nonetheless, that a guardian ad litem who has been served with
a subpoena may accept a witness or mileage fee authorized by statute, court
rule, or other law for appearance pursuant to a subpoena.
(b) If a guardian ad litem in any publicly-funded
case files any motion to exceed any cap or limit on fees, the guardian ad litem
shall, at or before the time of filing, provide a copy of the motion to the
person or persons who may be responsible for the reimbursement of the public
funds.
(c) In the case of a private fee arrangement
relating to the services of a guardian ad litem, the guardian ad litem shall:
(1) Execute
with the responsible parties or party an agreement in writing regarding fees
and expenses which specifies:
a.
The person or persons
responsible for payment;
b.
The amount of the rate to
be charged;
c.
The method for calculating
the fees and expenses billed; and
d.
Either:
1. An estimate of the cost of anticipated expenses and
services expected to be performed; or
2. A specific
amount to be charged which will not be exceeded absent an order of the court;
(2) Specify in
any agreement in writing under (c) (1) above either:
a.
The allocation of
responsibility for payment between or among the parties; or
b.
That the designation or
allocation of responsibility for payment may be made by the court and that the
court’s order relative to payment shall be binding; and
(3) Provide a
copy of the agreement in writing described in (c) (1) above to all parties to
the agreement.
(d) In the case of a private fee agreement where
it is necessary for the guardian ad litem, in order to fulfill his or her
obligations, to charge fees in excess of the estimated cost of anticipated
expenses and services, or in excess of the specified amount, originally stated
under (c) (1) d. above, the guardian ad litem shall:
(1) Provide, in
writing, to the parties either:
a.
An adjusted written
estimate of the cost of anticipated expenses and services expected to be
performed; or
b.
A new specific amount to be
charged which will not be exceeded absent an order of the court;
(2) File a
motion with the appointing court requesting authorization to charge a specific
amount in excess of the initial fee agreement, specifying therein:
a.
The amount of the original
estimate or specification;
b.
The specific amount in
excess of the original estimate or specification that the guardian ad litem
wishes to charge and the reason for the adjustment; and
c.
A statement as to whether
or not each of the responsible party or parties consents to the motion; and
(3) Provide a
copy of the motion to the person or persons who is or may be responsible for
the payment of any fee or cost, at or before the time of the filing of the
motion identified in (d) (2) above.
(e) In the case of a private fee agreement that
has once been altered under paragraph (d) above in which it is necessary for
the guardian ad litem, in order to fulfill his or her obligations, to again
exceed any amended amount, the guardian ad litem shall proceed in accordance
with paragraph (d) above as to any further agreement.
(f) If, at the conclusion of a case, the guardian
ad litem is in possession of any unearned fees, he or she shall return those
fees to the person who paid them to the guardian ad litem,
or in such other manner as that person or the fee agreement may direct.
(g) A guardian ad litem shall not enter into any
contingent fee agreement for his or her services.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16 (from Gal 503.11)
Gal 503.11 Gathering
and Reporting Facts and Other Information.
(a) A guardian ad litem shall gather such facts
and information regarding the family history, background, current circumstances,
concerns and wishes of the recipient of services, from the recipient of
services and from other sources, as will enable the guardian ad litem to:
(1) Form a good
faith conclusion about the best interests of the recipient of services or about
such other matters as directed by the orders or instructions of the appointing
court; and
(2) Conduct his
or her duties in conformity with these rules and the instructions of the
appointing court.
(b) Unless otherwise instructed by the appointing
court, in applying the provisions of (a) above, a guardian ad litem shall:
(1) Not be
obligated to contact each witness or reference appearing on any list supplied
by any person;
(2) In good faith,
exercise independent judgment as to whether or not contact with a particular
witness is necessary under the facts of the case; and
(3) Adhere to
any specific duties that may arise in the particular type of case to which the
guardian ad litem may be appointed, such as those duties regarding contacts and
witnesses in domestic relations cases set forth in Gal 504.03.
(c) Unless specifically authorized by the
appointing court, any conclusions intentionally sought from a witness during
the course of an investigation shall either be:
(1) Obtained in
writing; or
(2) Obtained orally by the guardian ad litem him or herself
personally contacting the witness.
(d) Unless otherwise specifically authorized by
the appointing court, a guardian ad litem shall state the sources of
information contained in the guardian ad litem’s
report and final recommendation and identify the name and title of the person
who gathered such information.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16 (from Gal 403.12)
Gal 503.12 Meetings
and Communications With and Regarding the Recipient of Services.
(a) Unless otherwise provided by the appointing
court, a guardian ad litem shall, on at least one occasion prior to making a
final recommendation to the appointing court, personally meet in person with
the recipient of services.
(b) A guardian ad litem shall provide a recipient
of services with that degree of information about the status of a case as the
guardian ad litem, in good faith, believes is:
(1) Necessary
in order for the recipient of services to understand the status of the case;
and
(2) In the best
interest of the recipient of services.
(c) In making the determination set forth in (b)
above, the guardian ad litem shall consider the recipient of service’s age,
mental state, level of maturity and any other facts bearing upon the ability of
the recipient of services to understand information that is conveyed to him or
her.
(d) The guardian ad litem shall maintain the
confidentiality of communications with the recipient of services, except that
such communications may be conveyed to the extent permitted by law, including
but not limited to the extent permitted in any of the following circumstances:
(1) To the
parties to the case and the appointing court;
(2) Pursuant to
an order or authorization of a court;
(3) To other employees of the office in which the
guardian ad litem is employed, if such communication is in furtherance of the
guardian ad litem’s assignment in the case;
(4) To another
guardian ad litem when delivering the guardian ad litem’s
file to another or successor guardian ad litem in the same or a related
proceeding;
(5) To
counselors, therapists, medical doctors, educators, or other professionals who
provide, provided or intend to provide services to the recipient of services;
or
(6) In those circumstances
allowed pursuant to RSA 490-C:5-b, II, subject to such
orders, prohibitions or limitations as may be issued by the board or its
presiding officer under RSA 490-C:5-b, IV through VIII.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16 (from Gal 503.13)
Gal 503.13 Duties
to Persons Other than Recipients of Service and GAL Communications Regarding
Cases.
(a) In dealing with a person or party who is not
represented by counsel, a guardian ad litem shall disclose his or her role as a
guardian ad litem.
(b) When a guardian ad litem believes that a person
who is not represented by counsel misunderstands the guardian ad litem’s role in the matter, the guardian ad litem shall
make a good faith effort to correct the misunderstanding.
(c) The guardian ad litem may clarify and explain
the limits of the guardian ad litem’s role to any
person.
(d) A guardian ad litem shall, to the extent
required by law, maintain the confidentiality of communications that are
confidential under federal law or the law of the state of New Hampshire or
which are specified as confidential by the appointing court.
(e) A guardian ad litem shall not disclose any
information regarding the case which may serve to identify the particular case
unless:
(1) The
disclosure is allowed pursuant to RSA 490-C:5-b, II,
subject to such orders, prohibitions or limitations as may be issued by the
board or its presiding officer under RSA 490-C:5-b, IV through VIII; or
(2) The
disclosure is:
a.
Not otherwise prohibited by
these rules, the orders or instructions of the appointing court or state or
federal law; and
b.
Necessary to fulfill his or
her duties in the case.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff 10-21-16
(from Gal 503.14)
Gal 503.14 Termination
of Representation.
(a) Upon the termination of a guardian ad litem’s appointment, the guardian ad litem shall take such
steps as he or she in good faith believes are necessary to protect the best
interests of the recipient of services.
(b) The steps described in (a) above shall
include, but not be limited to, the following:
(1)
Surrendering papers and property to which the recipient of services, the
parties, or the court may be entitled;
(2) Refunding
and transferring any unearned fees; and
(3) To the
extent possible, taking action in a sufficiently timely manner as to allow time
for appointment of another guardian ad litem.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16 (from Gal 503.15)
Gal 503.15 Provision
of Information to the Board and the Appointing Court.
(a) A guardian ad litem shall:
(1) Submit
truthful and accurate information in any initial, renewal, or reinstatement
application, or any other writing submitted to the board;
(2) Make truthful and accurate statements in any oral
communication to the board and court;
(3) Be forthright,
candid, and not misleading in his or her oral statements or written submissions
to the board and court; and
(4) Submit
truthful and accurate information in all reports, pleadings, or other writing
submitted to the court.
(b) A guardian ad litem shall within 5 days
advise the board and court, in writing, of the following information relating
to the guardian ad litem:
(1) Conviction
of, or a plea of guilty to, any felony in any jurisdiction;
(2) Conviction
of, or a plea of guilty to, any misdemeanor in any jurisdiction involving a
child or incapacitated adult as a victim or, in the case of offenses involving
attempt, conspiracy, or solicitation, as the intended victim;
(3)
Conviction of, or a plea of guilty to:
a.
Any misdemeanor involving
domestic violence as defined in RSA 173-B:1, IX and as further specified in RSA
173-B:1, I so as to include either commission or attempted commission of an
offense;
b.
Solicitation or conspiracy
to commit a misdemeanor involving domestic violence under (3) a. above; or
c. A
misdemeanor committed contrary to the law of a jurisdiction other than the
state of New Hampshire which would constitute domestic violence under a. above,
or a solicitation or conspiracy to commit that offense, if committed in, or
charged by, the state of New Hampshire;
(4) Conviction
of, or a plea of guilty to, any misdemeanor arising under:
a.
RSA 641:2, false swearing;
b.
RSA 641:3, unsworn
falsification;
c.
RSA 641:4, false reports to
law enforcement;
d.
RSA 645:1, indecent
exposure and lewdness;
e.
RSA 638:1, forgery;
f.
RSA 633:3-a, stalking;
g.
RSA 633:4, interference
with custody;
h.
RSA 644:4, harassment;
i.
RSA 632-A:4, sexual
assault;
j.
RSA 631:2-a, simple
assault;
k.
RSA 631:3, reckless
conduct;
l.
RSA 633:3, false
imprisonment;
m.
RSA 634:1, arson;
n.
RSA 634:2, criminal
mischief;
o.
RSA 635:1, burglary;
p.
RSA 635:2, criminal
trespass;
q.
RSA 637, theft;
r.
RSA 644:8, cruelty to
animals;
s.
RSA 631:2-b, domestic
violence;
t.
RSA 631:2, second degree
assault;
u.
RSA 644:9-a, nonconsensual
dissemination of private sexual images;
v.
RSA 633:7, trafficking in
persons; or
w. The law of a jurisdiction other than the state of
New Hampshire, if the misdemeanor would constitute any of the offenses listed
in clauses (4) a. through q. above if committed in or charged under the
jurisdiction of the state of New Hampshire;
(5)
Conviction of, or a plea of guilty to, any misdemeanor involving an
attempt, conspiracy or solicitation to commit those offenses listed in
subparagraph (4) above;
(6) Conviction
of, or a plea or guilty to, a misdemeanor of any type in any jurisdiction,
which would bring the total number of the person’s misdemeanors to more than 2,
regardless of the jurisdiction or jurisdictions in which any of the
misdemeanors arose;
(7) Current
listing on the central registry of founded abuse and neglect reports or a
report of child abuse or neglect against the person in this or any other jurisdiction;
(8) Suspension
from any activity as a guardian ad litem in this or any other jurisdiction as the result of
misconduct in the performance of his or her duties as a guardian ad litem, or
as the result of a failure to be of good character;
(9) Revocation
of any certification, registration, approval, or appointment as a guardian ad
litem as the result of misconduct in the performance of his or her duties as a
guardian ad litem, or as the result of a failure to be of good character, in
this or any other jurisdiction;
(10) If
presently or formerly authorized to practice as an attorney in this or any
other jurisdiction, disbarment in any jurisdiction;
(11) Denial of
an application for license, certification, registration or approval to practice
as a guardian ad litem in this or any other jurisdiction and the reasons therefore; and
(12) Any change
in the answer to the questions on the most recently submitted application form
described at Gal 302.02(f)(8), (10), or (12), or Gal 401.07(d) regarding
disbarment, revocation, suspension, reprimand, censure, discipline,
disqualification or sanction relative to the practice of a profession;
(c) A guardian ad litem shall within 5 days inform all courts in which he or she is currently appointed,
in writing, copying all parties, of any sanction imposed upon him or her by the
board.
(d) A guardian ad litem shall within 5 days
inform the board of any sanction imposed upon him or her in his or her capacity
as a guardian ad litem by any appointing court.
(e) A guardian ad litem shall within 5 days inform all courts and parties in which
he or she is currently appointed of information which the guardian ad litem is
required to report to the board under paragraph (b) above.
(f) A guardian ad litem shall within 5 days
inform all courts and parties in which he or she is currently appointed if
their guardian ad litem certification has expired or been denied.
(g) A guardian ad litem who is sanctioned by
another board shall within 5 days:
(1) Notify the
board, courts and all parties in which he or she is currently appointed: and
(2) Request a
review with the board.
(h) The guardian ad litem may still continue to
practice pending the board review described in (g)(2)
above.
(i) The Board shall
suspend or revoke certification following disclosure of any item under
paragraph (b) in accordance with Gal 200.
(j) The guardian ad litem whose certification has
been suspended or revoked may request an oral hearing in writing with 30 days
of the date of the letter, provided that the board shall, pursuant to Gal
203.04(d), commence an adjudicative hearing or issue and order of settlement
within 10 days of delivering an order of emergency suspension.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16 (from Gal 503.16)
Gal 503.16 Reporting
of Certain Conduct of Another Guardian ad Litem. A guardian ad litem who possesses specific
and credible information that he or she, in good faith, believes demonstrates
that another guardian ad litem has caused emotional, physical, or psychological
harm to a recipient of services shall inform the following entities of that
belief:
(a) The guardian ad litem board; and
(b) Either:
(1) If the case
involving the harm is pending, the court that appointed the other guardian ad
litem; or
(2) If the case
involving the harm is not pending, the administrative judge designated under
New Hampshire supreme court rule 54 for the court that appointed the other
guardian ad litem in that case.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16 (from Gal 503.17)
Gal 503.17 Cooperation
in Investigations and Compliance with Board Procedures and Orders.
(a) A presently or formerly certified guardian ad
litem shall cooperate in investigations of complaints conducted by the board,
including by providing an executed answer form as required by Gal 203.02 (e) –
(f) within 30 days of the date appearing on the board’s written notification or
such extended period allowed under Gal 203.02 (g).
(b) A presently or formerly certified guardian ad
litem shall abide by orders issued by the board or its presiding officers that
are applicable to the guardian ad litem, including, but not limited to, orders
issued pursuant to RSA 490-C:5-b, VI – VIII.
(c) A presently or formerly certified guardian ad
litem shall provide the board with information requested of him or her pursuant
to Gal 404.01 (b) and (c).
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16 (from Gal 503.19)
PART Gal 504 OBLIGATIONS IN PARTICULAR KINDS OF
CASES
Gal 504.01 Specific
Duties in Abuse and Neglect Cases.
(a) The specific duties of a guardian ad litem in
an abuse and neglect case set forth in this section shall be in addition to the
other obligations and duties of a guardian ad litem set forth in these rules.
(b) A guardian ad litem in an abuse and neglect
case shall independently assess any recommendation made by the department of
health and human services, division for children, youth and families.
(c) The guardian ad litem shall prepare a thorough
and timely report with recommendations to the court when the court directs the
guardian ad litem to file a report, including for, but not limited to,
dispositional, review, permanency and post-permanency hearings.
(d) If a guardian ad litem is aware that a
recipient of services disagrees with a recommendation being made by the
guardian ad litem, the guardian ad litem shall fully advise the appointing
court of this fact.
Source.
#8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
Gal 504.02 Specific
Duties in Criminal Cases.
(a) The specific duties of a guardian ad litem in
a criminal case set forth in this section shall be in addition to the other
obligations and duties of all guardians ad litem as set forth in these rules.
(b) In addition to the other obligations imposed
by these rules or by the appointing court, a guardian ad litem in a criminal
case shall become familiar with the history of the charges involved in the
case, the role of the recipient of services, and the issues which bear upon the
role of the recipient of services.
(c) When possible and consistent with the scope
of the guardian ad litem’s appointment, the guardian
ad litem shall interview the recipient of services, and may interview such
other persons, including counsel, as the guardian ad litem deems necessary.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
Gal 504.03 Specific
Duties in Domestic Relations Cases.
(a) The specific duties of a guardian ad litem in
a domestic relations case set forth in this section shall be in addition to the
other obligations and duties of all guardians ad litem as set forth in these
rules.
(b) Unless otherwise provided by the appointing
court, a guardian ad litem shall, on at least one occasion, meet in person with
each party to the case.
(c) Unless otherwise instructed by the appointing
court, a guardian ad litem shall inquire of each party as to the names of
witnesses who each party believes are essential to the guardian ad litem’s investigation of the case.
(d) A guardian ad litem in a domestic relations
case shall be deemed to have fully discharged his or her duties under this
chapter relative to contacting witnesses or references appearing on any list if
he or she has made a good faith attempt to contact 3 witnesses from the list
supplied by each party, or, if a party specifies less than 3 witnesses or
references, if the guardian ad litem has made a good faith attempt to contact
all witnesses and references listed by that party.
(e) In a domestic relations case, a guardian ad
litem may disclose information under Gal 503.12 (d) (1) or (2) or as is
otherwise permitted by law, only after the guardian ad litem has informed the
recipient of services of the guardian ad litem’s
intent to disclose. Such disclosure
shall not be required in the circumstances specified in Gal 503.12 (d) (3)
though (6).
(f) In a domestic relations case in which the
guardian ad litem is uncertain about whether to disclose potentially confidential
information, the guardian ad litem shall seek court review before disclosing
the information and shall, to the extent consistent with the best interests of
the recipient of services, seek such protective orders as may be required to
limit the disclosure.
(g) If a guardian ad litem is aware that a
recipient of services disagrees with a recommendation being made by the
guardian ad litem, the guardian ad litem shall advise the appointing court of
this fact unless the guardian ad litem believes that to do so may result in
harm to the recipient of services.
(h) In the case of a mature minor as described in
RSA 461-A:11, I (e), if the recipient of services makes known to the guardian
ad litem his or her preferences relative to matters on which the guardian ad
litem is offering a recommendation, the guardian ad litem shall advise the
appointing court of those preferences.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
Gal
504.04 Specific Duties in Cases Involving Termination of Parental Rights,
Adoption and Guardianship.
(a) The specific duties set forth in this section
relative to a guardian ad litem in a case involving termination, adoption and
guardianship shall be in addition to the other obligations and duties of all
guardians ad litem as set forth in these rules.
(b) If the recipient of services makes known to
the guardian ad litem his or her preferences relative to matters on which the
guardian ad litem is offering a recommendation, the guardian ad litem shall
include a reference to those preferences in his or her report.
(c) If a guardian ad litem is aware that a
recipient of services disagrees with a recommendation being made by the
guardian ad litem, the guardian ad litem shall advise the appointing court of
this fact.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
PART Gal 505 RECORDS AND ACCOUNTS
Gal 505.01 Records.
(a) The record retention requirements set forth
in this section pertain to closed files, and shall be in addition to, and shall
not limit, any record retention requirement which may be imposed upon the
guardian ad litem by any other law or professional code to which the guardian
ad litem may be subject.
(b) Unless otherwise ordered by the appointing
court, a guardian ad litem shall retain all records, other than drafts or
duplicates, regarding cases to which he or she was appointed:
(1) If a case
is not appealed, for a minimum of 3 years after the expiration of the appeal
period in the case;
(2) If a case
is appealed and not remanded, a minimum period of 3 years after the expiration
of the period for reconsideration of the decision of the appellate court
finally deciding the case; and
(3) If a case
is appealed and remanded and is not further appealed, for a minimum period of 3
years after the expiration of the appeal period in the case.
(c) Unless otherwise ordered by the appointing
court, a guardian ad litem shall retain records relating to the handling,
maintenance and disposition of funds relating to cases to which he or she is
appointed for a minimum period of 3 years after final distribution of such
funds or any portion thereof.
(d) Unless otherwise allowed by law or ordered by
the appointing court, a guardian ad litem shall maintain the confidentiality of
records that are deemed confidential under federal or state law.
(e) Certified and formerly certified guardians ad
litem shall retain in their possession the documentation specified in Gal
403.09 for a period of 3 years after claiming a
particular activity for continuing education credit.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
Gal 505.02 Accounts.
(a) The requirements regarding accounts set forth
in this section shall be in addition to, and shall not limit, any requirements
regarding accounts or the handling of funds which may be imposed upon the
guardian ad litem by any other law or professional code to which he or she may
be subject.
(b) Unless otherwise ordered by the court, and
except as provided in paragraph (c) below, a guardian ad litem appointed to any
case in which funds of any type are received shall deposit such funds in a
trust account with any bank or savings and loan association authorized to do
business in the state of New Hampshire and insured by the Federal Deposit
Insurance Corporation or the Federal Savings and Loan Insurance Corporation.
(c) The provisions of (b) above shall not apply
to payments received by the guardian ad litem for services that have in the
past been rendered and for which payment is due. A guardian ad litem holding funds in a trust
account under this rule against future costs and fees may withdraw such funds as
they become due.
(d) Funds in any account established under (b)
above shall be subject to withdrawal upon demand.
(e) All cash property received by a guardian ad
litem in which a person other than the guardian ad litem possesses an interest shall
be promptly deposited in one or more accounts described in (b) above, separate
from the guardian ad litem’s own funds.
(f) Upon receiving cash property in which a
person other than the guardian ad litem possesses an interest, the guardian ad litem
shall:
(1) Maintain a
separate ledger regarding deposits, withdrawals and other dispositions to the
account in which the cash property has been placed;
(2) Promptly
record all transactions relative to the cash property; and
(3) Maintain
records in accordance with Gal 505.01 above.
(g) Upon the conclusion of a case, a guardian ad
litem shall return any unearned fees in his or her possession to the person who
paid them to the guardian ad litem, or in such other manner as that person or
the written fee agreement may direct.
Source. #8941, eff 9-15-07, EXPIRED: 9-15-15
New. #11075, INTERIM,
eff 4-18-16, EXPIRED: 10-15-16
New. #12010, eff
10-21-16
APPENDIX
RULE
|
STATUTE
|
|
|
Gal 501.01 |
RSA 490-C: 4, I (e); RSA
490-C: 5, I (g); RSA 541-A: 7 |
Ga1 501.02 |
RSA 490-C: 4, I (e), (f),
II (j); RSA 490-C: 5, I (g) (j), II (g) |
Ga1 502.01 – Gal 502.10 |
RSA 541-A: 7 |
Gal 503.01 |
RSA 490-C: 4, I (e), (f), (g);
RSA 490-C: 4, II (b), (j); RSA 490-C: 5, I (g), (j); RSA 169-C: 10, III; RSA
541-A: 7 |
Gal 503.02 |
RSA 490-C: 4, I (e); RSA
490-C: 5, I (g); RSA 541-A: 16, I (b); RSA 461-A: 16; RSA 169-C:
29; RSA 161-F: 46 |
Gal 503.07 – Gal 503.12 |
RSA 490-C: 4, I (e); RSA
490-C: 5, I (g) |
Gal 503.13 – Gal 503.14 |
RSA 490-C: 4, I (e); RSA
490-C: 5, I (g); RSA 490-C: 5-b |
Gal 503.15 |
RSA 490-C: 4, I (e); RSA
490-C: 5, I (g) |
Gal 503.16 |
RSA 490-C: 4, I (c), (e);
RSA 490-C: 5, I (b), (c), (g); RSA 490-C: 5-a, I; |
Gal 503.17 |
RSA 490-C: 4, I (e); RSA
490-C: 5, I (g); RSA 490-C: 5-b |
|
|
Gal 504.01 |
RSA 490-C: 4, I (e); RSA
490-C: 5, I (g); RSA 169-C; |
Gal 504.02 |
RSA 490-C: 4, I (e); RSA
490-C: 5, I (g); |
Gal 504.03 |
RSA 490-C: 4, I (e); RSA
490-C: 5, I (g); RSA 461-A; |
Gal 504.04 |
RSA 490-C: 4, I (e); RSA
490-C: 5, I (g); RSA 170-B; RSA 170-C; RSA 463:8 |
Gal 505.01 – Gal 505.02 |
RSA 490-C: 4, I (e); RSA 490-C:
5, I (g) |