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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough County Probate Court No. 2007-294 IN RE GUARDIANSHIP OF PHUONG PHI THI LUONG Argued: April 10, 2008 Opinion Issued: July 2, 2008 John D. MacIntosh, P.C., of Concord (John D. MacIntosh on the brief and orally), for the petitioners. Ransmeier & Spellman, P.C., of Concord (John C. Ransmeier on the brief and orally), for the respondent. DUGGAN, J. The petitioners, the guardians of Phuong Phi Thi Luong, appeal orders of the Hillsborough County Probate Court (Patten, J.) rejecting two estate plans they proposed for Phuong Phi Thi Luong pursuant to RSA 464-A:26-a (2004) and adopting an alternative estate plan drafted by a courtappointed referee. We hold that the probate court was within its discretion to reject the estate plans proposed by the petitioners, but find that the court went beyond its authority in adopting the estate plan drafted by the court-appointed referee. Accordingly, we affirm in part, reverse in part, and remand. I. Factual and Procedural Background

The record reveals the following facts: Phuong Phi Thi Luong (Phi) is a forty-four year old woman who was born in Vietnam and immigrated to the United States in 1994. In 2000, she married the respondent, William Walker,

and, approximately one year later, gave birth to her only child, Catherine. In approximately 2002, Phi and Walker filed for divorce and Phi obtained temporary custody of their daughter. On February 17, 2003, while her divorce to Walker was still pending, Phi suffered irreparable brain damage during the course of elective surgery. As a result, she is now in a persistent vegetative state. Although she is able to breathe on her own, she is unresponsive to stimuli and must be fed artificially. Because she is unable to care for herself, she now resides at a facility where she can receive daily life-sustaining care. Following Phi's incapacitation, her youngest brother, Tan Luong, was appointed her sole guardian. As guardian, Tan Luong initiated a medical malpractice action on Phi's behalf and, on September 8, 2003, filed a petition with the probate court requesting to have a will approved for Phi's estate. See RSA 464-A:26-a, III. Pursuant to Tan Luong's proposed will, Phi's residuary estate would have been divided equally among Phi's parents, a trust in Catherine's name, and Phi's siblings, including Tan Luong. Walker, who had obtained custody of Catherine through finalization of Phi and Walker's divorce, objected to Tan Luong's proposed will in his capacity as Catherine's natural guardian. The probate court then appointed a guardian ad litem to represent Catherine's interests in the matter. However, before the probate court could consider Tan Luong's petition, the attorney representing Phi in the civil suit, Mark A. Abramson, filed a motion requesting that Tan Luong be removed as guardian and a disinterested successor guardian be appointed. In that motion, Abramson asserted that he had obtained a substantial settlement offer from the defendants in Phi's suit, and that, "in spite [of] the fact that he has no legal right to any of the proceeds of the civil suit, . . . [Tan Luong] refuses to authorize settlement because he wishes to obtain personal monetary benefits to which he is not entitled." In addition, Abramson stated that Tan Luong "refused to authorize settlement in an effort to force [Phi's] ex-husband to agree that he, his siblings, and his parents are entitled to portions of the proceeds." The probate court never ruled upon Abramson's motion. Instead, a stipulation was submitted to the court that permitted Tan Luong to select an attorney

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