Guardianship In New Mexico For People With Disabilities

In New Mexico, it is generally assumed that when young people reach 18 years of age, they are adults and can legally make their own decisions, even if they have a disability.

When a person lacks the ability to understand information and communicate decisions, or to manage their own affairs, the person may be considered incapacitated. A guardian is a person who has been given the right, by a court order, to make decisions for an incapacitated person and to supervise certain aspects of their life.

Most adults with mental or physical disabilities can make some or all of their own decisions. There is no law that requires people with disabilities to have a guardian. Even if an adult is incapacitated, no one else can act as their guardian unless they have been appointed by a court order.

Guardianship can help protect and assist an incapacitated person. A parent, relative, friend or other interested person can ask the court to appoint a guardian for someone if they believe that person is incapacitated and in need of a guardian.

A person's right to make their own decisions is limited when they have a guardian. For this reason, the law sets standards for appointment of guardians and their powers.

The court will not appoint a guardian unless it has been shown by "clear and convincing evidence" that the person cannot make major life decisions or care for their personal welfare.

The guardian's powers should be limited to those decisions that the incapacitated person cannot make for themselves.

A WARD is an incapacitated person who may need the assistance of a guardian.

A FULL or PLENARY GUARDIAN is responsible for all major decision-making for the incapacitated person. Even with a full guardianship, the guardian must consider the wishes of the incapacitated person. A separate hearing must take place for decisions about sterilization or termination of pregnancy.

The court may assign a LIMITED GUARDIAN if the incapacitated person is able to make some, but not all, major life decisions or for guardianships that are time-limited. The court order will say which decisions the guardian is responsible for making.

A TEMPORARY GUARDIAN can be appointed for up to 60 days if a rapid decision must be made regarding the health or safety of an incapacitated person.

A TREATMENT GUARDIAN is appointed by a court to make decisions regarding mental health medications and mental health treatment only under the Mental Health and Developmental Disabilities Code rather than under the Probate Code as is the case for other types of guardianships.

A TESTAMENTARY GUARDIAN is named and appointed in a will of the legal guardian or parent. The guardianship goes into effect after the parent or legal guardian dies and after the will has been accepted in court. The appointment will be terminated immediately if the incapacitated person gives a written objection to the court.

A GUARDIAN AD LITEM(GAL) is a lawyer appointed by the court to represent the best interests of the incapacitated person in legal proceedings including guardianship and conservatorship hearings.

A CONSERVATOR is a person appointed by the court under the Probate Code to manage the property and/or the financial affairs of an incapacitated person. A conservator can have limited or full powers, like a guardian.

A CORPORATE GUARDIAN is a private agency authorized to serve as a guardian for an incapacitated person.

Other methods of providing support to the incapacitated person should be considered before the guardianship process is used. Examples of other ways to provide assistance are through the use of a power of attorney or a representative payee.

1. Once the decision is made that a person may need a guardian, anyone (a parent, spouse, sibling, or other relative, friend, case manager or a representative of the provider agency) can ask the court to appoint a guardian.
2. After a Petition and other necessary papers are filed in the appropriate District Court and the filing fees are paid, the Court will set a date for a hearing on the Petition.
3. At, or before the hearing, the court will require reports from a qualified health care professional, a Visitor, and the Guardian Ad Litem(GAL). The qualified health care professional can be an MD, a psychiatrist, psychologist, or a nurse practitioner. The health care professional must examine the proposed Ward and submit a written report to the court describing the proposed Ward's level of intellectual and developmental functioning and whether there may be a deficit in any area.
4. A Visitor is usually a social worker or a similar individual who must interview the proposed Guardian, visit the proposed Ward’s home and report to the court on the proposed Ward’s needs and the appropriateness of the Guardianship.
5. The court will appoint a Guardian Ad Litem(GAL) to represent and protect the rights of the individual for whom guardianship is proposed. The GAL must visit the incapacitated person before the hearing. It is the Guardian Ad Litem’s role to ensure that a guardian is appointed only if necessary and guardianship is in the person’s best interest.
6. Everyone listed above, including the incapacitated person and the proposed Guardian, will be notified and is entitled to attend the hearing. The health care professional is required to send a written report. The court may ask anyone to testify and/or answer questions about the proposed Ward’s limitations and capacity for self-care. The court will not grant the Petition unless the Petitioner proves the allegations of the Petition with clear and convincing evidence.
7. The hearing can be held in the county where the proposed Ward lives and there is an option for a jury trial.
8. If the court agrees that a Guardian is needed, the court will issue an order appointing a Limited or Plenary Guardian.
9. The Guardian must submit an annual report to the court documenting how the Ward is doing and the Guardian's work and efforts on the Ward's behalf. The report is due on or before the anniversary of the date the Guardianship was granted. The court is authorized to assess a fine for filing this report late.
10. To initiate a change in or a termination of the guardianship, the Ward or other interested party may write to the court requesting the change or petition for the requested relief.

Regardless of the type of guardianship ordered, an incapacitated person retains their human, civil, and constitutional rights except for those limits specified in the Order. These rights cannot be abridged, modified, or violated by a Guardianship Order.