What is Guardianship?

Guardianship is the legal process by which a person is deemed “incapacitated” by the Court, and appoints a guardian to make decisions in their place. “Incapacitated” means the person is unable to make or communicate decisions about their life.

Guardianship is the most restrictive form of decision-making support, and should only be used as a last resort, when less restrictive ways of helping — such as a Supported Decision-Making Agreement, a Power of Attorney, or an Advance Directive — have not worked.

Guardianship Types to Know

• Temporary Guardian 
  The process for appointment of a guardian typically takes at least 60 days from the date the Petition for Guardianship is filed. However, if the Allegedly Incapacitated Person faces serious, immediate, and irreparable harm to their health, safety, or welfare. The Temporary Guardian is granted some decision-making authority to make decisions to prevent any irreparable harm. After the Temporary Guardian’s appointment, the regular procedures are followed to determine if the guardianship should be permanent.
• Limited Guardian 
  The court appoints a Limited Guardian when a person is able to make decisions in some of their personal and financial affairs. The Limited Guardian is given decision-making authority for only those matters the Protected Person is unable to manage on their own.  The Protected Person keeps all their legal rights except those specifically given by the Court to the guardian. Limited guardianships are less restrictive than full guardianships, and are preferred under New Mexico law. 
• Full (or “Plenary”) Guardian 
  A Full Guardian (sometimes called a “Plenary Guaridan”) has complete authority from the Court to make all decisions for a Protected Person who is unable to make their own decisions.  
• Successor Guardian 
  A Successor Guardian is appointed to replace a guardian who is no longer willing or able to continue serving as the Protected Person’s guardian. 
• Mental Health Treatment Guardian 
  A Mental Health Treatment Guardian is a special type of guardian who only has authority to make decisions about mental health treatment (including medications) for someone who cannot give informed consent. Mental Health Treatment Guardians also are only appointed for one year, although their appointment can be renewed.

Conservator 

A Conservator is similar to a Guardian, except that a Conservator is appointed only to make financial decisions, and only when a person is unable to effectively manage their estate and financial affairs. Please note: The Office of Guardianship does not provide conservatorship services.

What does a Guardian do?

A guardian supports the Protected Person with decision-making. To the greatest extent possible, the guardian is required to follow the Protected Person’s wishes and preferences, while also protecting the person’s health and safety. The guardian also must act within the specific scope of authority described in the Order appointing the guardian. The guardianship appointment order may include decision-making and responsibilities related to areas such as:

• ensuring the Protected Person’s legal and civil rights are protected;
• ensuring the basic needs of the Protected Person are met;
• monitoring the Protected Person’s services for abuse, neglect, exploitation or fraud;
• residential placement;
• healthcare or medical care; and
• finances.

Who Can Serve as a Guardian?

New Mexico law specifies the order of priority for people who may be appointed as guardian. Starting with the highest-priority option, the following people may be appointed as guardian:

• Someone who has been appointed guardian by a court in another jurisdiction;
• A person nominated or designated in writing by an incapacitated person prior to their incapacity, if the nomination/designation has not been revoked by the person or terminated by a court;
• The incapacitated person’s spouse;
• An adult child of the incapacitated person;
• A parent of the incapacitated person, or a person nominated by will or other signed writing made by a deceased parent;
• Any other relative with whom the incapacitated person resided for more than six months;
• A person nominated by whomever is caring for the incapacitated person or paying benefits to them; and
• Any other person.

When considering who to appoint as guardian, a court may pass over someone having higher priority if doing so is in the protected person’s best interests. The court should consider:

• The incapacitated person’s preferences, giving weight to preferences expressed in writing by the person while having capacity;
• The proposed guardian’s geographic location;
• The relationship of the proposed guardian to the incapacitated person;
• The ability of the proposed guardian to carry out the powers and duties of guardianship; and
• Potential conflicts of interest between the incapacitated person and proposed guardian.

Not everyone has family or close friends available. Other times, their family or friends may not be appropriate to serve as guardian, or they might not be ready or interested in being appointed. In those situations, a professional guardian may be appointed. Professional guardians are certified by the Center for Guardianship Certification, and must take continuing education classes every year to maintain their certification. Professional guardians are paid for their services.