Guardian Ad Litem

Qualifications

GALs that contract with OOG must:

• Be licensed or permitted to practice law in New Mexico;
• Maintain professional liability insurance;
• Be familiar with the legal requirements for guardianship; and
• Act on the presumption that guardianship is not necessary. 

Responsibilities

GALs are required to act in accordance with the:

• Uniform Probate Code, NMSA 1978, § 45-1-201, Definitions.
• Uniform Probate Code, NMSA 1978, §§ 45-5-101 through 45-5-110, Protection of Persons Under Disability and Their Property: General Provisions.
• Uniform Probate Code, NMSA 1978, §§ 45-5-301 through 45-5-315, Protection of Persons Under Disability and Their Property: Guardians of Incapacitated Persons.
• Uniform Probate Code, NMSA 1978, § 45-5-406, Protection of Persons Under Disability and Their Property: Guardianship and Protective Proceedings; Request for Notice; Interested Person.
• Rules of Civil Procedure for the District Courts, Article 2: Commencement of Action:
  • Rule 1-003.2 NMRA Guardianship and Conservatorship Information Sheet.
  • Rule 1-004.1 NMRA Guardianship and Conservatorship Proceedings Process.
• Rules of Civil Procedure for the District Courts, Article 9: District Courts: Rule 1-079.1 NMRA Public Inspection and Sealing of Court Records in Guardianship and Conservatorship Proceedings.
• Rules of Civil Procedure for the District Courts, Article 14: Guardianship and Conservatorship Proceedings:
  • Rule 1-140 NMRA Mandatory Use of Forms.
  • Rule 1-141 NMRA Determination of Persons Entitled to Notice of Proceedings or Access to Court Records.
  • Rule 1-142 NMRA Proof of Certification of Professional Guardians and Conservators.
  • Rule 1-143 NMRA Appointment of Visitor, Qualified Health Care Professional, and Guardian Ad Litem; Timing and Review of Reports; and
  • Rule 1-144 NMRA Mandatory Viewing of New Mexico Courts’ Guardian and Conservator Orientation Program Videos.
• New Mexico Administrative Code, Title 9 Human Rights, Chapter 4 Persons with Disabilities, Part 21 Guardianship Services (9.4.21.1 through 9.4.21.18 NMAC).
• Rules of Professional Conduct (NMRA Rules 16100 et seq.).
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Duties 

GAL will perform their duties as prescribed by the Uniform Probate Code in guardianship proceedings for adults in need of protection who are alleged to be incapacitated.

• If possible, visit the intended residence of the adult in need of protection.
• Conduct an in-person interview with the individual prior to the hearing.
• Consider the extent and scope of the individual’s abilities and functional capacity.
• If the adult in need of protection has the ability to understand, the GAL may recommend a health care power of attorney, financial power of attorney, or advance health-care directive.
• Interview the:
  • Qualified Health Care Professional;
  • CV;
  • Proposed Guardian; and
  • If necessary, others who know the individual well.
  • Review the medical report submitted by the Qualified Health Care Professional.
  • Review the report by the CV.
  • Obtain independent medical or psychological assessment, or both, if necessary.
• Attempt to locate information regarding the individual (e.g., advance directives, powers of attorney, organ donation documents) to assure that all least restrictive alternatives are considered by the court.
• Coordinate with the PET to ensure that the individual receives copies of all legal documents and appears at all hearings.
• Prepare and file with the court a written GAL report with their recommendations.
• Present the individual’s declared position on guardianship to the court.
• Ensure that if guardianship is determined to be necessary, that the guardian is appointed only if it is the least restrictive alternative for the individual’s care, safety, and supervision.
• Review the contents of the GAL and CV reports with the individual prior to the hearing, as required by Rule 1-143.
• GAL duties and responsibilities are discharged upon the entry of the order appointing the guardian and acceptance of the appointment, unless otherwise ordered by the court.