New Rules of Civil Procedure for the District Courts
1-003.2. Commencement of action; guardianship and conservatorship information sheet.
An information sheet identifying persons entitled to notice and access to court records in a proceeding under Chapter 45, Article 5, Parts 3 or 4 NMSA 1978 shall be submitted by the petitioner upon the filing of a petition to appoint a guardian or conservator. The information sheet shall be substantially in the form approved by the Supreme Court.
[Approved by Supreme Court Order No. 18-8300-005, effective for all cases filed, or pending but not adjudicated, on or after July 1, 2018.]
Committee commentary. — The information sheet required under this rule, Form 4-992 NMRA, is for administrative use only and is not made part of the record. The purpose of the information sheet is to assist court staff with identifying persons entitled to notice and access to court records under Rule 1-079.1(B)(2) and (C)(2) NMRA prior to the appointment of a guardian or conservator. See also NMSA 1978, §§ 45-5-303(K), 45-5-407(N) (providing that a person entitled to notice may access court records of the proceeding and resulting guardianship or conservatorship).
[Approved by Supreme Court Order No. 18-8300-005, effective for all cases filed, or pending but not adjudicated, on or after July 1, 2018.]
1-140. Guardianship and conservatorship proceedings; mandatory use of forms.
A. Order determining persons entitled to notice of proceedings and access to court records. When the court files an order appointing a guardian or conservator, the court shall file a separate order using Form 4-993 NMRA to identify all persons entitled to notice of the proceedings and access to court records following the appointment.
B. Order to secure or waive bond. When the court files an order appointing a conservator, the court shall file a separate order using Form 4-994 NMRA directing the conservator to secure bonding or an alternative asset-protection arrangement or waiving the bonding requirement, as provided in Section 45-5-411 NMSA 1978.
C. Notice of bonding and corporate surety statement. Unless waived by the court, a conservator shall file a separate notice of bonding using Form 4-995 NMRA. The notice of bonding shall be filed at the same time that an inventory or report is filed under Paragraphs E or F of this rule. A statement completed by the corporate surety using Form 4-995.1 NMRA shall be attached to a notice of bonding filed under this paragraph.
D. Guardian’s report. A guardian filing a ninety (90)-day, annual, or final report under Section 45-5-314 NMSA 1978 shall use Form 4-996 NMRA.
E. Conservator’s inventory. A conservator filing a ninety (90)-day inventory under Section 45-5-418 NMSA 1978 shall use Form 4-997 NMRA.
F. Conservator’s report. A conservator filing an annual or final report under Section 45-5-409 NMSA 1978 shall use Form 4-998 NMRA.
G. Notice of hearing and rights. A person filing a petition to appoint a guardian or conservator shall use Form 4-999 NMRA to provide notice of the hearing on the petition and notice of the rights of the alleged incapacitated person as required under Sections 45-5-309 and 45-5-405 NMSA 1978.
[Approved by Supreme Court Order No. 18-8300-005, effective for all cases on or after July 1, 2018; provisionally amended by Supreme Court Order No. 18-8300-007, effective for all cases filed on or after October 15, 2018; approved by Supreme Court Order No. 19-8300-001, effective January 14, 2019.]
1-141. Guardianship and conservatorship proceedings; determination of persons entitled to notice of proceedings or access to court records.
Any determination by the court of persons entitled to notice of the proceedings or access to court records shall be made by a separate, written order. The order shall not address any other matter in the proceeding.
[Approved by Supreme Court Order No. 18-8300-005, effective for all cases on or after July 1, 2018.]
1-142. Guardianship and conservatorship proceedings; proof of certification of professional guardians and conservators.
A. Scope. This rule establishes qualification requirements under Sections 45-5-311 and 45-5 410 NMSA 1978 for an individual or entity who may be appointed as a professional guardian or conservator.
B. Definition. For purposes of this rule, a “professional guardian or conservator” means an individual or entity that serves as guardian or conservator for more than two individuals who are not related to the guardian or conservator by marriage, adoption, or third degree of blood or affinity.
C. Proof of certification. An order appointing a professional guardian or conservator under Chapter 45, Article 5, Parts 3 or 4 NMSA 1978, shall include a provision that requires the professional guardian or conservator to submit proof that the individual who has been assigned the duties of guardian or conservator for the protected person is certified and in good standing with the Center for Guardianship Certification. The proof required under this paragraph shall be submitted to the court not later than the first to occur of the following:
(1) Ninety (90) days after the filing of the order of appointment; or
(2) The filing of the initial report required under Section 45-5-314(A) NMSA 1978 or the inventory required under Section 45-5-418(A) NMSA 1978.
D. Continuing duty. A professional guardian or conservator must submit proof annually that the certification required under Paragraph C of this Rule is in good standing.
E. Applicability. This rule shall apply to all professional guardians and conservators appointed on or after the effective date of this rule. Professional guardians or conservators appointed before the effective date of this rule shall provide the proof required under Paragraph C of this rule within six months of the effective date of this rule and as further required by Paragraph D.
[Adopted by Supreme Court Order No. 19-8300-001, effective for all cases on or after July 1, 2019.]
Committee commentary. — The definition of a professional guardian or conservator focuses on the number of non-relatives who are under the care of the guardian or conservator. The definition therefore excludes, for example, a guardian or conservator appointed to care only for relatives, regardless of number. Similarly, the definition excludes a guardian or conservator appointed to care for one or two non-relatives. The definition limits relatives by blood or affinity to the third degree of relationship to the guardian or conservator, which includes the guardian’s or conservator’s spouse, parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin, or any person denoted by the prefix “grand” or “great,” or the spouse or former spouse of the persons specified. NMSA 1978, § 40-10B-3(E).
The Center for Guardianship Certification (CGC) provides certification to guardians and conservators who demonstrate “sufficient skill, knowledge and understanding of the universal guardianship principles to be worthy of the responsibility entrusted to him or her.” Center for Guardianship Certification, https://guardianshipcert.org/about-us/. Certification by the CGC demonstrates that the guardian or conservator has met certain professional and ethical standards, including the following:
Certification entitles the guardian [or conservator] to represent to the courts and the public that he or she is eligible to be appointed, is not disqualified by prior conduct, agrees to abide by universal ethical standards governing a person with fiduciary responsibilities, submits to a disciplinary process, and can demonstrate through a written test an understanding of basic guardianship principles and laws.
Id. To view the CGC’s certification requirements, visit https://guardianshipcert.org/ certification-requirements/.
Under Paragraph C of this rule, an order appointing a professional guardian or conservator shall require the professional guardian or conservator to submit proof within ninety (90) days that the person who has been assigned the duties of a guardian or conservator has been certified with the CGC. A person assigned the duties of a guardian or conservator is the individual who makes decisions on behalf of the protected person, including but not limited to the professional guardian’s or conservator’s employee, subcontractor, agent, case manager, guardianship coordinator, or an individual who signs a report submitted under NMSA 1978, Sections 45-5-314, 45-5-409, or 45-5-418. If a corporate entity is appointed as a guardian or conservator, the identity of the person who will be assigned the duties of a guardian or conservator may not be known at the time that the order of appointment is issued. The ninety (90) day time limit set forth in Paragraph C is intended to provide a reasonable amount of time for a corporate entity to assign the duties of a guardian or conservator to a specific individual and to submit proof that the individual is certified.
[Adopted by Supreme Court Order No. 19-8300-001, effective for all cases on or after July 1, 2019.]
1-143. Guardianship and conservatorship proceedings; appointment of visitor, qualified health care professional, and guardian ad litem; timing and review of reports.
A. Scope; computation of time. This rule governs the appointment of and filing of reports by a visitor, qualified health care professional, and guardian ad litem in a guardianship or conservatorship proceeding under Chapter 45, Article 5, Parts 3 and 4 NMSA 1978. All time periods set forth in this rule, regardless of length, shall be computed using calendar days as provided in Rule 1-006(A)(1) NMRA.
B. Appointment. Upon the filing of a petition for the appointment of a guardian or conservator, the court shall appoint a qualified health care professional, visitor, and if necessary, a guardian ad litem.
C. Timing of reports. An order of appointment under Paragraph B of this rule shall require the appointee to file a report as follows.
(1) Qualified health care professional. A qualified health care professional shall file the report required under Section 45-5-303(E) or 45-5-407(C) NMSA 1978 no later than fourteen (14) days before the hearing on a petition to appoint a guardian or conservator.
(2) Visitor. A visitor shall file the report required under Section 45-5-303(F) or 45-5-407(D) NMSA 1978 no later than eleven (11) days before the hearing on a petition to appoint a guardian or conservator.
(3) Guardian ad litem. A guardian ad litem shall file the report required under Section 45-5-303.1(A) or 45-5-404.1(A) NMSA 1978 no later than seven (7) days before the hearing on a petition to appoint a guardian or conservator.
D. Provision of reports. Within three (3) days of the filing of a report required under Paragraph C of this rule, the petitioner shall provide a copy of the report to the alleged incapacitated person, the visitor, the guardian ad litem, any attorney of record, any agent under a power of attorney unless the court orders otherwise, and any other person the court determines under Rule 1-079.1(B)(4) or (C)(4) NMRA. The report may be provided to such persons in any manner reasonably calculated to afford a meaningful opportunity to review the report before the hearing on the petition to appoint a guardian or conservator.
E. Review. Prior to the hearing, the guardian ad litem shall review the reports with the alleged incapacitated person by making the alleged incapacitated person aware of the contents of the reports and their significance.
[Adopted by Supreme Court Order No. 19-8300-005, effective July 1, 2019.]
Committee commentary. — The time limits and review requirements set forth in this rule are intended to provide an opportunity for meaningful communication about the content and recommendations contained in the reports before the hearing on the petition for the alleged incapacitated person and any other person entitled to access the reports under Rule 1-079.1 NMRA.
[Adopted by Supreme Court Order No. 19-8300-005, effective July 1, 2019.]
1-144. Guardianship and conservatorship proceedings; mandatory viewing of New Mexico Courts’ Guardian and Conservator Orientation Program videos.
A. Scope. This rule establishes the requirement that any proposed guardian or conservator of an alleged incapacitated person must view the New Mexico Courts’ Guardian and Conservator Orientation Program videos prior to being appointed guardian or conservator.
B. Applicability. This rule applies to proposed guardians and conservators and to proposed professional guardians or conservators.
C. Definitions. For the purpose of this rule, a “professional guardian or conservator” means an individual or entity that serves as guardian or conservator for more than two individuals who are not related to the guardian or conservator by marriage, adoption, or third degree of blood or affinity.
D. Required videos for proposed guardian. Prior to the Court appointing a guardian, the proposed guardian must view the following videos of the New Mexico Courts’ Guardian and Conservator Orientation Program:
(1) Introduction;
(2) Guardian Orientation;
(3) How to Complete the Guardian’s Report;
(4) Guide to Filing and Distributing Guardian and Conservator’s Reports;
(5) Abuse and Neglect; and
(6) How to File a Grievance.
E. Required videos for proposed conservator. Prior to the Court appointing a conservator, the proposed conservator must view the following videos of the New Mexico Courts’ Guardian and Conservator Orientation Program:
(1) Introduction;
(2) Conservator Orientation;
(3) Overview of Conservator’s Report and Bonding Requirements;
(4) How to Complete the Conservator’s Inventory;
(5) How to Complete the Conservator’s Report;
(6) Guide to Filing and Distributing Guardian and Conservator’s Reports;
(7) Abuse and Neglect; and
(8) How to File a Grievance.
F. Proof of viewing. No later than five (5) calendar days before the hearing on a petition to appoint a guardian or conservator, the proposed guardian or conservator shall file a certificate with the court stating that the required videos have been viewed.
[Adopted by Supreme Court Order No. 21-8300-001, effective for cases filed on or after February 1, 2021.]
1-145. Conservatorship proceedings; professional conservators; procedures and time limits for filing reports and financial statements.
A. Scope; computation of time. This rule governs the filing of reports by a professional conservator in a conservatorship proceeding under Section 45-5-409 NMSA 1978. See Rule 1-142(B) NMRA (defining the term “professional . . . conservator”). All time periods set forth in this rule shall be computed in accordance with the provisions of Rule 1-006(A) NMRA, unless otherwise indicated.
B. Appointment. On the filing of a petition for the appointment of a conservator the court, taking into account the priorities set forth in Section 45-5-410(A) NMSA 1978, may appoint a professional conservator.
C. Timing of reports. An order of appointment under Paragraph B of this rule shall require the professional conservator to file a report, substantially in compliance with Form 4-998 NMRA, within the following time limits:
(1) in the case of an annual report, within thirty (30) days after the anniversary date of the professional conservator’s appointment;
(2) in the case of all other reports, within sixty (60) days after the professional conservator’s resignation, removal, or termination, whichever is applicable; or
(3) a reasonable period of time as determined by the court beyond the deadlines specified in Subparagraphs (1) and (2) of this paragraph.
D. Filing and service of reports. A professional conservator’s report shall be filed in the court in which the case is currently assigned, with copies served on
(1) the protected person, consistent with the provisions of Rule 1-004.1(C) NMRA;
(2) the protected person’s guardian, if any, in accordance with the provisions of Rules 1-004.1(D) and 1-005 NMRA; and
(3) the district judge currently assigned to the case, in accordance with the provisions of Rules 1-004.1(D) and 1-005 NMRA.
E. Required documents; financial statements; separate confidential filing.
(1) Every report filed by a professional conservator shall require a separate confidential filing of financial statements that detail the following:
(a) all income and assets reported, respectively, in Sections II and IV of Form 4-998; and
(b) all expenses and debts reported, respectively, in Sections III and V of Form 4-998.
(2) For purposes of this rule, the term “financial statements” shall mean written documentation in any form from a third-party financial institution that reflects one or more of the relevant individual transactions for or on behalf of the protected person that occurred during the period covered in the report.
(3) Considering the confidential nature of the information contained in the financial statements, the separate confidential filing shall
(a) be filed contemporaneously with Form 4-998;
(b) be automatically sealed by the court, without the need for a separate court order;
(c) include a cover sheet captioned “Sealed—Confidential Information” that indicates the total number of pages, excluding the cover sheet, being filed;
(d) not redact any confidential information;
(e) not be disclosed to any person or entity other than the State Auditor as provided in Paragraph F of this Rule, unless authorized by court order. Absent a court order, and notwithstanding the provisions of Rule 1-079.1(C)(4) NMRA, the confidential filing required under this Paragraph shall not be disclosed to the protected person, the parties to the proceeding, a court-appointed guardian, or counsel of record and their employees.
F. Audit process.
(1) The court shall forward a professional conservator’s report and all financial statements to the State Auditor for review within five (5) days of the court’s receipt of those documents.
(2) The State Auditor shall submit, within fifteen (15) business days of receiving a professional conservator’s report and all financial statements from the court, one of the following:
(a) a letter of review declining to conduct an audit;
(b) a letter of acceptance to conduct an audit; or
(c) a letter requesting that the professional conservator submit additional information or financial statements to help assess whether an audit is warranted or appropriate.
(3) The professional conservator shall comply with any request made by the State Auditor for additional information or financial statements within fifteen (15) business days of receiving the request. For good cause shown, the court may extend the time limit governing the professional conservator’s response for an additional period of up to fifteen (15) business days.
(a) If, in the opinion of the State Auditor, the professional conservator’s response satisfactorily provides the requested information or financial statements missing from the initial submission, the State Auditor shall submit the following within fifteen (15) business days of receiving the response:
(i) a letter of review declining to conduct an audit, or
(ii) a letter of acceptance to conduct an audit.
(b) If the professional conservator fails to respond to the State Auditor’s request or if, in the opinion of the State Auditor, a submitted response lacks the requested information or financial statements, the State Auditor shall promptly notify the court of the professional conservator’s lapse. The court, in turn, shall set the matter for a status conference, at which the professional conservator, appearing through counsel, shall advise the court of the reason for the delayed or inadequate response. Any costs associated with preparing for and appearing at the status conference shall be borne by the professional conservator and shall not be charged to the protected person’s estate. The court may issue any order, up to and including an order holding the professional conservator in contempt, appropriate to promote the efficient processing of the report.
(4) If the State Auditor decides to conduct an audit of the contents in the professional conservator’s report without requesting additional information or financial statements, an audit report shall be filed with the court within ninety (90) days of the State Auditor’s submission of the letter of acceptance to conduct an audit. If the State Auditor decides to conduct an audit of the contents in the professional conservator’s report after requesting and receiving additional information or financial statements, an audit report shall be filed with the court within ninety (90) days of the professional conservator’s submission of the additional information or financial statements.
G. Costs incurred. Any costs incurred by the State Auditor in exercising its authority to subpoena documents, records, or statements under Section 45-5-409(H) NMSA 1978 shall be borne by the professional conservator and shall not be charged to the protected person’s estate.
[Provisionally adopted by Supreme Court Order No. 22-8300-005, effective for all cases pending or filed on or after March 16, 2022.]
