Q: Is a court hearing to determine whether a person needs a guardian or conservator open to the public?
A: Recent changes to state law, effective July 1, 2018, state that a court hearing to determine whether a guardian or conservator should be appointed “shall be determined by the court at an open hearing unless, for good cause, the court determines otherwise”. Sections 45-5-303(N) and 45-5-407(Q), NMSA 1978. Prior to this change in state law, all hearings were required to be sequestered, or closed to the public. Any party may file a motion to close a hearing and if a judge finds good cause to grant the motion, the hearing will not be open to the public.
Q: What records are open to the public in guardianship and conservatorship cases?
A: Recent changes to state law, effective July 1, 2018, create different levels of access to court records for guardianship and conservatorship cases. In general, the existence of a court case concerning the appointment of a guardian or conservator for an adult is “a matter of public record” unless the court seals the record. The court may seal a case only if (1) the petition is dismissed or (2) the guardianship or conservatorship is terminated and a motion to seal the case is filed.
Documents filed in the case: The register of actions and docket entries in guardianship and conservatorship cases are available to public but this does not include access to the actual documents filed with the court. State law prohibits the disclosure of any records that include diagnostic, treatment and other medical or psychological information. In addition, a report filed by a guardian ad litem is “confidential and shall be sealed on filing”.
Persons entitled to notice of court hearings and to access case documents: Individuals who are identified in the petition and are entitled to receive notice in the guardianship or conservatorship proceeding (such as a spouse, adult children, power of attorney, etc.) have a right to access court records up until the date a court order is issued appointing a guardian or conservator. After the court appoints a guardian or conservator, court records are only available to the protected person, the guardian or conservator, and any other individuals explicitly identified by the court.
A person not otherwise entitled to access court records for good cause may petition the court for access to court records of the guardianship. The court shall grant access if access is in the best interest of the alleged incapacitated person or protected person or furthers the public interest and does not endanger the welfare or financial interest of the alleged incapacitate person or the protected person.