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Guardians and Conservators
The Adult Guardianship and Conservatorship Process
The law dealing with adult guardianship and conservatorship in New Mexico is contained in the Probate Code. The Probate Code can be found in the New Mexico Statutes, Chapter 45. You can click on any underlined text in this section and it will take you directly to that portion of the Probate Code.
The entire adult guardianship and conservatorship law can be found in Article 5 – Protection of Persons Under Disability and Their Property.
The part of the Probate Code that focuses on Guardianship is Part 3 – Guardians of Incapacitated Persons.
The part of the Probate Code that focuses on Conservatorship is Part 4 – Protection of Property of Persons Under Disability and Minors.
How is a Guardian and/or Conservator appointed?
There are many legal steps in the adult guardianship and conservatorship process. A person who may need a guardian and/or a conservator appointed is called an alleged incapacitated person. While the legal process may seem complex, it is meant to ensure that there are multiple checks and balances in place to protect the alleged incapacitated person’s legal and civil rights.
Generally speaking, there are 3 steps in the adult guardianship and conservatorship process:
Step 1 – Filing of the Petition. A petition is a legal document that starts a case. A petition for guardianship/conservatorship is filed in the District Court by any interested party. Due to the complex nature of these cases, there is no standard form (petition) available for use by the general public. You should consult with an attorney if you wish to file a petition for guardianship and/or conservatorship for another adult. An attorney can review whether there are options, other than guardianship, that could be helpful in your situation.
Step 2 – Appointment of Professionals. The law requires that three (3) professionals are appointed in adult guardianship and conservatorship cases. These professionals are: Guardian ad litem (GAL), a qualified health care professional and a visitor. These professionals have different roles but each of these professionals is required to file a report with the court.
Step 3 – Court Hearing. Every petition must have a court hearing scheduled. At the hearing the judge hears testimony from different people. The alleged incapacitated person is required to attend this hearing. A guardian and/or a conservator can only be appointed after the judge receives written reports from all 3 professionals, holds a hearing, hears testimony and considers all of the evidence. Just because a petition for guardianship and/or conservatorship has been filed does not mean that a judge will automatically appointed a guardian and/or a conservator.
Role of a Guardian and/or Conservator
Guardians and conservators are individuals (often family members), companies or organizations appointed by a judge to make decisions for another adult. The adult under guardianship/conservatorship is called a protected person. An adult is placed under guardianship/conservatorship if a judge has found that the protected person is unable to manage their finances, property, health care or living arrangements on their own.
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 customized to the needs of the protected person. The duties of a guardian and a conservator are outlined in the judge’s order that appoints a guardian and/or conservator.
Beginning in 2018, the legislature has passed several bills that have changed the Adult Guardianship and Conservatorship system in New Mexico.
To read the changes in Senate Bill 35, effective July 1, 2022, click here.
To read the changes in House Bill 234, effective July 1, 2021 click here.
To read the changes in Senate Bill 395, effective July 1, 2019, click here.
To read the changes in Senate Bill 19, effective July 1, 2018, click here.
Overview of New Laws
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. The 2018 law increased the late fine for overdue reports to $25 per day.
Since July 1, 2018, 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 imposed 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 (7) years and to fully comply with the requirements of any audit of the protected person’s account, inventory, report, or property.
CERTIFICATION FOR PROFESSIONAL GUARDIANS AND CONSERVATORS. The 2019 law requires professional guardians and professional conservators be certified by the Center for Guardianship Certification. Click here for the Rule Requiring Professional Guardians and Conservators to be Certified.
CONSERVATOR ANNUAL REPORT AUDITS. The 2021 law directs the Office of the State Auditor to review all annual reports filed by conservators, establishes an auditing process and grants the State Auditor the power to subpoena documents necesary to conduct an audit on the contents of conservator’s annual report.
GREATER ACCESS TO INFORMATION. The 2018 law opened court hearings in guardianship and conservatorship proceedings that were previously closed to the public. Access to court records, especially before the appointment of a guardian or conservator, was 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.
GRIEVANCE. The 2019 law created a new grievance process that allows anyone to file a complaint about a 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.
GUARDIAN ANNUAL REPORT REVIEWS.The 2021 law created the Guardianship Annual Report Review Division (GARRD) at the Administrative Office of the Courts. GARRD staff are required to review all annual reports filed by guardians and the results of the review are fowarded to the judge assigned to the guardianship case.
LESS RESTRICTIVE OPTION. The 2021 law requires the guardian ad litem to identify and present all available less restrictive alternatives to guardianship to the judge.
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 authorized by the court by specific order.
A guardian may limit visitation with a protected person for a period up to seven (7) business days with family or with a pre-existing social friend; or for a period of no more than sixty (60) days if the person is not family or have a pre-existing social friendship without a specific court order.
VOLUNTEER COURT VISITOR PROJECT. The 2021 law creates a new pilot project effective July 1, 2022. Three pilot locations have been selected by the Supreme Court to participate in this pilot project: First Judicial District, Fifth Judicial District and Twelfth Judicial District. The Office of Guardianship is responsible for recruiting, training and providing volunteer court visitors (post-adjudication) in randomly selected cases in these pilot judicial districts. The volunteer court visitor shall visit the protected person and submit a report to the assigned judge about whether the guardianship should be continued, changed or dismissed.
WINGS. The 2021 law directed the Supreme Court to create a Working Interdisciplinary Network of Guardianship Stakeholders (WINGS) group to continue reviewing the adult guardianship system in New Mexico. For more information on WINGS, click here to access the WINGS webpage.
New Law Passed in 2022
The legislature passed additional changes to improve the Adult Guardianship system in 2022. To read Senate Bill 35, click here.
Senate Bill 35 makes significant changes to the temporary adult guardianship and conservatorship process. An adult guardianship/conservatorship case begins when a petition is filed at the district court. If harm to the alleged incapacitated person may occur while waiting for the judge to hold a hearing on the petition, the judge may appoint a temporary guardian and/or a temporary conservator. The appointment of a temporary guardian and/or conservator should only be used as an temporary measure to provide immediate protection to the alleged incapacitated person.
Temporary Guardian – A judge may appoint a temporary guardian upon a finding that serious, immediate and irreparable harm to the alleged incapacitated person’s health, safety or welfare would result during the pendency of the petition.
Temporary Conservator – A judge may appoint a temporary conservator upon a finding that serious, immediate and irreparable harm to the alleged incapacitated person’s estate and financial interests would result during the pendency of the petition.
Some of the changes to the temporary guardianship/conservatorship process include:
- Requires the filing of a separate motion for the temporary appointment of a guardian and/or conservator.
- If a temporary guardian and/or conservator is appointed, a hearing must be held within 10 business days.
- If a temporary guardian and/or conservator is appointed, the alleged incapacitated person must be personally served within 24 hours of the appointment.
- A guardian ad litem (GAL) must be appointed if a temporary guardian and/or conservator is appointed and the GAL shall file a report no later than 2 days prior to the 10 day hearing.
- The duration of a temporary guardian/conservator appointment shall not exceed thirty (30) days. However, if after a hearing in which there is a showing of good cause, the court may extend the temporary guardianship and/or conservatorship for no more than an additional sixty (60) days.
- A temporary guardian and/or conservator shall submit an initial written report within fifteen (15) days of appointment and shall file a final written report within fifteen (15) days of the termination of the temporary guardianship/conservatorship.
- A temporary guardian and/or conservator may not sell or dispose of any property belonging to the alleged incapacitated person, or make a change to the housing or placement of the alleged incapacitated person, without specific authorization from the court.