A A A

This website cannot be viewed properly using this version of Internet Explorer.

To ensure your security while viewing this site, please use a modern browser such as Chrome or update to a newer version of Internet Explorer.

Download Chrome (Made by Google)
Update Internet Explorer (Made by Microsoft)

Adult Guardianship

Tutela de adultos

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.]