Defining Legal Guardianship
It’s generally accepted that most adults in New Mexico have the ability to make decisions about every aspect of their life. However, as a person ages or as a result of incapacity, it may become necessary to involve another person in the decision-making process. This person is referred to as you legal guardian and the decision to grant legal guardianship requires a detailed examination of both the person needing a guardian as well as the prospective guardian.
In New Mexico, legal guardianship provides the legally appointed person with the authority to act on behalf of another person. Legal guardianship does not, however , provide the person with the ability to act on behalf of a legally competent person.
Most commonly, legal guardianship is used for parents to assign a legal guardian of a disabled child when they both die. That means the legal guardian becomes the parent of a disabled child until the child reaches the age of majority. It can also be used by a terminally ill person to choose a guardian for his or her affairs. There are other circumstances for which legal guardianship may be appropriate.
Legal Guardianship is complicated. There is a guardianship panel that must review and approve the application to a District Court before a legal guardian can be appointed.
Types of Legal Guardianship in New Mexico
There are different types of guardianship in New Mexico and the United States. For instance, in the area of guardianship of the person, which is what most people think of when they think of guardianship, there are generally two types of guardianships: for minors and for adults. In addition to these, there are temporary guardianships and emergency guardianships. All of these types of guardianship are, in essence, Court orders that allow someone to make decisions on behalf of another individual. The guardian of a minor child is a person or an entity who is appointed by the Court to care for and provide for the needs of a minor child. Minors are children under the age of eighteen (18) years; therefore, a minor is someone who is not yet an adult under the law. Often, there are suits filed with the Court to terminate parental rights, and the guardian is appointed in order to provide care, medical attention, education and other needs for the child while the suit is pending. They may also be appointed in other scenarios when parents can no longer care for the child due to their incapacity, neglect, abuse or other reason. Sometimes, guardians are appointed in the event that both parents are deceased and have not provided legal authority for someone to care for their children. The second type of guardian is that of the adult. When someone is appointed as a guardian over an adult, it means that they are appointed to make decisions on the behalf of that person – adult – who is now unable to make decisions regarding their financial and/or health issues. An adult guardianship can be full, partial or limited, depending upon the decision made by the Court. When seeking to appoint a guardian over an adult, the Court must establish that the person being proposed actually has a disability or condition that would warrant someone having authority over them, their finances and their personal care, in order to be able to grant the request. A temporary or provisional guardianship can be requested and appointed by the Court at any time during a guardianship hearing. This type of guardianship allows the temporary guardian to only have authority during the pendency of that particular hearing only. This type of authority may be granted in an emergency situation to provide for the temporary care of the person or their property, for example. It is important to understand that a temporary guardianship ceases upon the issuance of an order of a final guardianship the final order of guardianship. An emergency guardianship is one that is imposed in the event of an emergency to immediately provide for the personal care of someone who is deemed to be incompetent and in need of immediate assistance. The duration of the emergency guardianship is temporary, and lasts only during the pendency of a hearing for a provisional guardianship ordered by the Court. New Mexico law provides for legal mechanisms and authoritative control over a person’s affairs when they become incompetent or incapacitated. This control can either be guardianship (or conservatorship in the case of financial guardianship) over a minor or an adult, or authority granted to a parent or parents over a minor.
How to Seek Guardianship
To apply for legal guardianship in New Mexico, you must first determine the exact type of guardianship required based on the assessed need of the person. Then you must file a petition in the probate court in the county where the incapacitated person resides, specifying the reason for the request and providing supporting evidence and documentation. The court requires strict adherence to a list of required information and deadlines for filing certain documents that is available through the New Mexico Probate Court. It’s preferable to retain the services of an attorney to help you navigate the complicated process.
Make your petition as thorough and detailed as possible, providing the court with all the necessary information about the person you are requesting that the court appoint a guardian for. This includes their current address, purpose for the guardianship, the reasoning behind it, and information about the person’s family. You may also need to submit psychological and/or medical evaluations, the proposed bond amount and any other required documentation.
Once the application is filed, the court will schedule a hearing at which time you must provide further proof that the person has become incapacitated, often through witness testimony. After hearing the case and reviewing all available evidence, the court will issue an order granting or denying guardianship, which can be delayed if the petitioner does not meet the requirements or the court finds that financial disclosure requirements are not met.
If the court grants the guardianship, the appointed guardian may be required to post a bond with the court to guarantee that they will act in the best interests of the usurped party. If the order is denied, the petitioner may be able to appeal the court’s decision. Once a guardian is appointed, they must retain the services of an attorney to assist with periodic accounting and compliance requirements.
The Court Process and Hearings
Court procedures in guardianship cases require the appointment of an attorney as initial "Guardian’s Ad Litem," who will represent the Respondent at the initial hearing and serve as counsel for the Respondent until the Court makes its initial appointment of a Guardian; investigations, including interviews with the proposed guardian, the Respondent, and third parties that know the Respondent, including the Respondent’s doctors; a detailed report reviewing how the Respondent can be supported without guardianship and whether a guardianship would be in the Respondent’s best interest is filed on behalf of the Respondent with the Court; a hearing where all of the evidence will be presented; and a decision by the Court including detailed findings.
For more detail on these steps including the information to be included in the report and role of the Guardian Ad Litem, see NMSA 1978 Section 45-5 Age 22-405, entitled "Appointment of guardian ad litem in guardianship proceedings; duties; physician’s report; service; requirements."
After the initial hearing, assuming a Guardian or Conservator is appointed by the Court, the Court will schedule one or more subsequent hearings and the Guardian or Conservator must file reports with the Court for review and approval on a regular basis. NMSA 1978 Section 45-5-601, entitled "Investigations and reporting authority." The Court can schedule multiple hearings to consider reports on different topics. For example, where the Court appoints a Guardian, the Court may schedule a hearing every 6 months to review the Guardian’s duties and actions and a hearing each year to approve the accounting as requested by the Court. The Court will often schedule both hearings at the same time.
Guardian Rights and Responsibilities
A legal guardian for an incapacitated person or minor is granted a great deal of authority, but also subject to a great amount of responsibility. There is no free lunch. A recent New Mexico Court of Appeals case, In re Parentage of James M, illustrates this point.
In the past I have referred to the powers of a guardian as being those powers which an adult parent generally has over his or her child. But unlike a parent, a guardian is not able to voluntarily step back and let other people raise the child. It is a lifetime obligation, and the Court expects a guardian to act in accordance with the best interest of the child (or incapacitated adult). Unlike parenting, a guardian is held to the standard of a "prudent" guardian, we are told.
Here are some rights and duties of a guardian:
New Mexico statutes are pretty clear regarding what a guardian can do, but they leave quite a lot up to a judge regarding what a guardian cannot do . Generally speaking, a guardian cannot take any action that would result in a deprivation of the ward’s liberty, without advance approval (although the court can ratify the action after the fact).
Thus, a guardian’s duties must be carried out under the watchful eye of the Court. The guardian must file regular reports, which will be reviewed in detail by the Court. And at any time, the ward or any interested person can ask a Court to review the guardian’s actions. If there is a problem, the Court may immediately suspend the guardian or modify the guardian’s powers before ultimately deciding the case.
New Mexico Judges expect a high level of accountability from guardians of minors, and this accountability must be sustained for the lifetime of the guardian. Breach of a duty or failure to comply with a court order could open the door to financial liability (without regard to actual damages), as well as removal as guardian.
Generally, a guardian will want to operate with the guidance of an attorney and with full disclosure to reviewing Court.
Difficulties and Key Issues
Despite the many advantages of legal guardianship, it comes with its own unique challenges and considerations. As mentioned previously, a guardian has various responsibilities and, in many cases, financial obligations. This means that any potential guardian needs to be prepared to handle these responsibilities. They need to be financially solvent themselves, and they should be very willing to take on the role, as it still requires quite a significant time investment. It is also important to consider the impact of guardianship may have on your personal life. For instance, you may sacrifice some portion of your personal freedom, especially if the ward lives with you. While no one should become a guardian for the free room and board, the arrangement should be mutually beneficial. Therefore, clients should consider how much of their home and free time they are able and willing to dedicate to the responsibility — and then some — for the required period of time. You will also need to contact the credit bureaus to have the identities of both the guardian and the ward added to any relevant credit files. This is necessary to ensure ongoing protection from identity theft committed in the name of the ward. Similarly, you may need to check in with Social Security if your ward receives any benefits from this organization. Being a legal guardian may also affect the estate plan of the guardian. In some cases, the rights of the guardian may even conflict with the appointed duties. Therefore, if you are currently named as a beneficiary or executor in your estate plan, it may be time for an update to account for this new role.
Guardianship Alternatives
Alternative arrangements to legal guardianship exist in New Mexico. One of them is a power of attorney. A power of attorney is a document that allows a trusted person to act on behalf of a person who is still living, but the legal authority given can be very broad. A good power of attorney often includes the following:
In New Mexico a power of attorney can be used for financial matters and healthcare matters. A power of attorney for healthcare will allow a person’s healthcare agent to make decisions regarding medical treatment and end of life issues.
A conservatorship is another alternative form of guardianship. A conservatorship is more limited than a guardianship in scope. If someone is determined to not have capacity to handle their financial estate, a conservator can be appointed and only protect the assets of an individual. A conservator cannot make personal or healthcare decisions for the protected individual.
Another alternative to guardianship is called supported-decision making. Supported-decision making is an informal arrangement prescribed in New Mexico law that allows a person with a disability to choose someone to be there with them when major decisions are needed. The supporter is there to ensure the decision maker has all the relevant facts and understands the consequences of the decision. The supporter is not making the decision, but is there to provide support so that the decision maker can make their own decision. Supported-decision making is intended to be used when a person is able to understand all the relevant facts and make their own decision, but just needs some extra help.
If traditional guardianship is necessary there are alternatives to the plenary guardian. There are alternatives to a complete plenary guardian. The limited guardian appointed by the court is an alternative arrangement to a plenary guardian. For instance if a person’s needs are mostly for financial reasons, the appointment of a limited guardian for financial matters may be the solution instead of a plenary guardian. A limited guardian can also be appointed for personal needs only. The powers given to the limited guardian can be as narrow or as broad as needed.
Helpful Resources and Guidance for Guardians
For those who serve as guardians in New Mexico, a multitude of resources and support systems are available to help navigate their responsibilities. Local government agencies, non-profit organizations, and legal assistance programs provide invaluable aid.
The Office of Guardianship in New Mexico, a division of the New Mexico Department of Human Services, serves to coordinate services for individuals who are financially and/or physically incapable of caring for themselves. The office is responsible for investigating cases, managing financial matters, and overseeing individuals’ personal care needs. They also provide local resources and referrals for community care.
The Developmental Disabilities Supports Division (DDSD) under the New Mexico Human Services Department offers valuable resources for guardians of individuals with developmental disabilities. They provide a family-centered approach , emphasizing the importance of family and community involvement in the care of individuals with developmental disabilities.
Non-profit organizations like the Arc of New Mexico provide support, advocacy, and resources specifically for people with intellectual and developmental disabilities and their families. Their services include information on funding options, service coordination, advocacy support, and community education programs.
Legal aid services such as the New Mexico Center for Law and Poverty can assist with navigating complex legal issues, filing for government benefits, and understanding guardianship laws. They offer a range of services and resources for low-income individuals and families.
The State Bar of New Mexico offers a wealth of information online for individuals seeking legal assistance. Their Lawyer Referral for the Elderly Program connects seniors and their caregivers with attorneys willing to provide legal guidance in areas such as guardianship. The State Bar also provides a Legal Assistance Referral Program for disability-related legal matters.