Frequently Asked Questions
Q: As a guardian, what forms are required for reports to the court?
A: Guardians must use Form 4-996 NMRA for filing annual or final reports and for the initial 90-day report that much be submitted within 90 days of the guardian’s appointment by a court.
Q: As a conservator, what forms are mandatory for reports to the court?
A: Conservators must use Form 4-998 NMRA for filing annual or final reports with a court. A conservator is required to use Form 4-997 NMRA when filing an inventory of a protected person’s estate within 90 days of the conservator’s appointment by the court.
Q: How and where do I submit required reports to the court?
A: Reports are to be filed with the court clerk’s office in the district court that appointed the guardian or conservator. State law also requires copies of reports to be mailed to the appointing judge or the judge’s successor, to the incapacitated person and their conservator or guardian, if any.
The guardian or conservator is responsible for remembering the date to file all reports with the court.
Contact information for district courts is available on the Judiciary’s website at https://www.nmcourts.gov/find-a-court.
Q: Is a surety bond required for conservators?
A: All newly appointed conservators for a protected person must obtain and file a surety bond with the court, unless the court (1) approves another alternative asset-protection arrangement, or (2) waives the bonding requirement after a determination that a bond is unnecessary to safeguard the protected person’s interests. The bond is similar to an insurance policy, serving to protect an individual’s estate against losses from possible mismanagement or fraud.
Conservators appointed before July 1, 2018, may be required to obtain a surety bond by the judge assigned to the case.
A conservator must submit a notice of bonding to the court using Form 4-995 NMRA. A statement must be completed by the corporate surety using Form 4-995.1 NMRA and must be attached to the conservator’s notice of bonding.
Access to Court Hearings and Records
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.
Q: What is a surety bond?
A: A surety bond is similar to an insurance policy purchased by a conservator to protect the assets of an incapacitated person that is under conservatorship. A bonding company will issue a bond on behalf of the court-appointed conservator to insure that the conservator fulfills the legal responsibilities to manage the financial assets of the protected person appropriately. If a conservator misuses or steals the assets of the protected person, the bond company will pay actual losses, up to the value of the bond, to the protected person’s estate.
Q: What changes in state law now require the posting of a bond?
A: Section 45-5-411, NMSA 1978, which became effective July 1, 2018, requires the posting of a surety bond with the court for all newly appointed conservators, unless the court (1) approves another alternative asset-protection arrangement, or (2) waives the bonding requirement after a determination that a bond is unnecessary to safeguard the protected person’s interests. Conservators appointed before July 1, 2018 may be required to obtain a surety bond if ordered by the judge assigned to the case.
Q: Who pays the costs of a bond?
A: The judge will determine whether the estate of the protected person or the court-appointed conservator will pay the cost of a surety bond. The estate of the protected person may be required to pay the cost of a surety bond because the bond insures the protected person against loss or theft. The surety bond is similar to home or car insurance, purchased by the car or home owner.
Q: How much do surety bonds typically costs?
A: A surety bond usually costs between 1-10% of the amount of coverage requested, depending on the conservator’s overall credit rating.
Q: What happens if the estate of the protected person does not have sufficient funds to pay for a surety bond?
A: If the protected person’s estate is small or does not have sufficient funds to pay for a surety bond, the court can waive the bond requirement since there are limited assets that need protection.
Q: What if the protected person only has a court-appointed guardian?
A: If the protected person does not have any significant assets, then the appointment of a conservator is not necessary. A surety bond is meant to provide the protected person with additional safeguards if misuse or theft of their assets occurs. State law does not require a surety bond for court-appointed guardians.
Q: What companies issue surety bonds?
A: Most major insurance companies provide surety bonds.
Oversight & Audit
Q: What type of oversight do judges have in guardianship and conservatorship case?
A: Any person who believes that a guardian or conservator is not fulfilling their legal duties and obligations may notify the judge assigned to the case by filing a letter with the court. In addition, effective July 1, 2018, new revised annual reports for guardians and conservators are required for all new and existing cases. These revised annual reports require the guardian and conservator to provide detailed information about a protected person’s assets and annual expenditures, living conditions, medical treatment, and visitation with others. The annual report will provide essential information to the presiding judge regarding the personal, healthcare, and financial decisions made on behalf of the protected person. The judge will review all of the information submitted in the annual reports and may set a hearing to further question the guardian or conservator. If questions still remain after the judge holds this hearing, the judge may refer a case to the Office of the State Auditor for additional review.
Q: How will a financial review and audit of a case occur?
A: The Office of the State Auditor and the Administrative Office of the Courts have entered into an MOU that allows the Office of the State Auditor to review certain cases involving a conservatorship. The MOU creates a pilot program with one-time funding from the legislature that is available to use through June 30, 2019. After holding a hearing, a judge may refer a case to the State Auditor for additional review. The State Auditor may conduct an initial financial review of a case to assess whether to conduct a full audit. If a full audit is warranted, the State Auditor has subpoena powers to obtain access to all of the protected person’s financial records. If any possible criminal activity is detected, the State Auditor will contact local law enforcement for further investigation and will advise the presiding judge of the audit findings.
Q: What types of cases can the State Auditor’s Office review and audit?
A: Under the pilot project, only judges may refer conservatorship cases to the State Auditor’s Office for a review and evaluation of a protected person’s estate and financial affairs. The State Auditor already has the authority to randomly conduct financial and compliance audits for guardians assigned through the New Mexico Developmental Disabilities Planning Council/Office of Guardianship since these cases involve state funds.
Q: Who can investigate other types of abuse?
A: If physical or sexual abuse is suspected, local law enforcement should be notified immediately for further investigation. The district attorney’s office has the authority to charge individuals for physical abuse or neglect, sexual abuse and financial exploitation. Judges can remove a guardian or conservator from a case but they do not have the power to file criminal charges.