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Guardians and Conservators

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Guardians and conservators are individuals (often family members), companies or organizations appointed by a Judge to make decisions for another adult that is incapacitated and unable to manage their finances, property, health care or living arrangements. An adult that is incapacitated is called a protected person. A guardian may help manage the protected person’s healthcare needs, medical appointments and housing. A conservator may help manage the protected person’s finances, investments and properties. The exact duties of a guardian and conservator are particular to the needs of the protected person. These duties are outlined in the Judge’s order that is issued when a guardianship or conservatorship is granted.

lady justiceNEW LAWS

In recent years, the legislature has passed several bills that have changed the Adult Guardianship system in New Mexico.

To read the changes effective July 1, 2018  click here for link to new law.

To read the changes effective July 1, 2019 click here for link to new law.

To read the changes effective July 1, 2021 click here for link to new law.

Some of these most important changes include:

 

ANNUAL REPORTS. Guardians and conservators are required to submit annual reports which lets the Judge know information about the protected person and decisions that are made on behalf of the protected person. These reports must be filed every year and are due thirty (30) days after the anniversary date that the Judge appointed the guardian and/or conservator.  A judge may assess a late fine of $25 per day for overdue reports. It is mandatory that guardians and conservators use the new forms specified in the court rules. For more information on how to fill out these annual reports, click here to access the Adult Guardian and Conservator Orientation Program (VIDEOS). To access the reports guardians and conservators are required to file, click here to access the new Annual Report forms.

BONDING & AUDITS. Changes in the 2018 law imposes new bonding requirements on conservators to help safeguard the assets of a protected person. The law also requires guardians and conservators to keep the protected person’s financial records for seven years and to fully comply with the requirements of any audit of the protected person’s account, inventory, report, or property.

GREATER ACCESS TO INFORMATION. The 2018 law opens court hearings in guardianship and conservatorship proceedings that were previously closed. Access to court records, especially before the appointment of a guardian or conservator, is expanded for family members and others entitled to notice of guardianship proceedings. Click here to access a chart that outlines the different levels of access to documents in Adult Guardianship cases

VISITATION The 2018 law prevents a guardian from placing limits on visitation with the protected person without approval from the judge.  A guardian for a protected person shall not restrict the ability of the protected person to communicate, visit or interact with others, including receiving visitors and making or receiving telephone calls, personal mail or electronic communications, including through social media or participating in social activities, unless:

(1)       authorized by the court by specific order;

(2)       a less restrictive alternative is in effect that limits contact between the protected person and a person; or

(3)       the guardian has good cause to believe restriction is necessary because interaction with a specified person poses a risk of significant physical, psychological or financial harm to the protected person and the restriction is:

(a) for a period of not more than seven business days if the person has a family or preexisting social relationship with the protected person; or

(b) for a period of not more than sixty days if the person does not have a family or preexisting social relationship with the protected person.

CERTIFICATION FOR PROFESSIONAL GUARDIANS AND CONSERVATORS. The 2019 law adds specific rights of the alleged incapacitated person, requires a professional guardian and conservator be certified (click here for Rule Requiring Professional Guardians and Conservators to be Certified) , and increases fines for overdue interim or annual reports to $25 a day.

GRIEVANCE. The 2019 law also created a new grievance process to file a complaint about a court-appointed guardian or conservator.  Click here to watch a video, How to File a Grievance.  To access a form to file a grievance against a guardian or a conservator, please click here.

New Law Passed in 2021

The legislature passed additional changes to improve the Adult Guardianship system in 2021. To read this new law, click here.

Some of the new changes include:

  • directs the Supreme Court to create a Working Interdisciplinary Network of Guardianship Stakeholders (WINGS) group to further review the adult guardianship system in New Mexico;
  • creates a pilot program, in certain judicial districts, to provide judges with volunteer court visitors (post-adjudication) to visit the protected person and issue a report about whether the guardianship should be continued, changed or dismissed (effective July 1, 2022); 
  • creates the Guardianship Annual Report Review Division (GARRD) at the Administrative Office of the Courts to review all annual reports filed in adult guardianship and conservatorship cases;
  • directs the Office of the State Auditor to review all conservatorship reports, provides for an auditing process and grants the State Auditor the power to subpoena documents necessary to conduct an audit; and
  • requires guardians to consider the least restrictive option for the protected person.