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New Mexico courts can appoint guardians to provide much-needed decision-making and other types of care. While we often think of guardianship as being for older adults, they also serve adults with special needs and children living with someone other than their parents.
Those filing adult cases can expect the process to include several court-appointed professionals who ensure the appointment meets the respondent's needs and best interests. While cases for children rarely include experts, a requirement that the children live with the nominee for 90 days before filing works as a safety mechanism of a different type.
New Mexico divides its protective proceedings cases into two types : guardianships and conservatorships.
Guardianships give someone the power to make medical and care decisions for another person. If the adult or child subject to the guardianship earns minimal income ( like a Social Security benefits) the guardian might be granted limited financial powers as well.
Conservatorships exist for more comprehensive financial powers. Someone might have both a guardian or conservator or only one or the other. Conservatorships can deal with complex financial issues, from managing bank accounts to selling property and even hiring an attorney for the respondent to go through a divorce or other legal proceedings.
When the court issues its appointment order, it classifies each guardianship or conservatorship as full or limited . Full appointments (also called plenary or unrestricted) give the guardian or conservator every power possible under the fiduciary statutes. The court tries to limit its usage of unrestricted appointments in favor of limited guardianships and conservatorships.
The court carves out certain powers that the guardian can or cannot exercise by limiting an appointment. Limited guardianships and conservatorships protect any decision-making abilities that the respondent still has, provide a customized approach to the protective proceedings process, and help prevent fiduciary abuse.
The court can appoint any willing, qualified adult as a guardian or conservator, regardless of the relationship to the respondent. Of course, the court prefers to appoint a close loved one, and state statutes make that official by creating a priority for appointment list.
When deciding between multiple people competing for an appointment, the court can give a little bump of preference to the person with higher priority as determined by statute. Someone nominated by the respondent in writing has the highest priority, followed by the spouse and other relatives.
However, priority does not guarantee an appointment. The court must find that the guardian or conservator is suitable to serve. The court can also skip someone with higher priority for someone with low or even no priority if it finds that it’s in the respondent’s best interests. For example, the court might appoint a professional guardian to serve rather than higher-priority family members if it doubts the family’s ability to act in the respondent’s best interests.
New Mexico provides the forms needed for both adult and minor guardianship and conservatorship cases.
The petition starts the case by letting the court know that you want guardianship or conservatorship. The forms give the information it needs to start and then process the case, so it’s important to fill them out thoroughly and carefully. Filing incomplete or incorrect forms can delay your case.
Take your forms to the correct district court for filing. You file adult cases in the district court for the county where the respondent lives. Or, for conservatorships, you can also file in the district court for the county where the respondent owns property.
For minor guardianship cases, file your case in the district court where the child or their parents live. New Mexico law requires that the child live with the person seeking guardianship for 90 days before the petitioner files the case. However, if both parents consent to guardianship, the court does not require that the child be living with the nominee.
Parents can consent to the appointment of a guardian for an appointment to take effect immediately.
Alternatively, parents can also nominate a guardian for their children in their will. Doing so makes it much easier for the nominated guardian to assume their role than if the parents do nothing. Upon the parent’s death, the guardian simply has to notify the court of their acceptance to put the guardianship into effect. The court can issue letters of guardianship or a certified acceptance as proof of your authority.
Guardianships and conservatorships for minor children work on the same concepts of incapacity as guardianships for adults, but the root of incapacity is their tender age. As a society, we don’t consider children under 18 responsible for their own care and support.
Guardianships, also called kinship guardianship, for minor children allow someone else to step into the shoes of a parent to take care of the child. While we often think of court intervention in a family’s life as being something traumatic and negative, the reasons for guardianship vary wildly.
Families might need guardianship because the parents abandoned the child with another relative. However, parents might consent to guardianship so their child qualifies for a particular school district or so they can join a high-level youth sports program away from home.
Ultimately, the standard for the appointment of a minor guardian is that the parents are unwilling or unable to parent or that they consent to guardianship. So, it can be an entirely voluntary process that meets whatever goals the family has.
Guardianships automatically terminate when the child turns 18. However, parents can also ask the court to end it sooner if they regain the ability to parent.
Conservatorship for minor children provides completely different powers than guardianship and in comparison, is relatively rare. A conservatorship gives an adult the ability to accept and manage large sums of money or property on behalf of the minor.
Conservatorships are very purpose-driven. They operate under the goal of preserving the minor’s property for their benefit when they turn 21. As such, the court oversees and restricts the use of the funds. Typically, the court does not allow the minor’s money to be spent on things that are typically the parents’ responsibility, like food, shelter, and other basic necessities.
After you file a new guardianship or conservatorship case, the court appoints several professionals to help with the case.
First, the court appoints a guardian ad litem “GAL,” an attorney who represents the respondent's best interests. The GAL prepares a written report to the court regarding their recommendations for the appointment.
The court also appoints a qualified healthcare professional who also submits a report to the court. They give the court information about the respondent’s condition and decision-making ability.
Finally, the court also appoints a court visitor. The visitor’s report describes the respondent’s needs and what things they can or cannot manage, and whether some level of assistance would mitigate the problem.
Then, the court holds a hearing to decide what to do. If the court finds that the respondent lacks capacity regarding financial or care decision-making it can appoint a conservator or guardian, respectively.
Unless expressly restricted by the court, wards subject to a guardianship or conservatorship keep several basic rights. This includes the right to receive mail, associate with friends and family, vote, marry, make a will, work with an attorney, and even ask the court to end the guardianship.
Guardianship for adults with special needs follows the same procedure as that for older adults. Most importantly, the court appoints a GAL, court visitor, and qualified healthcare professional.
The families of adults with special needs often anticipate the need for guardianship coming as their child’s 18th birthday approaches. Keep in mind that the court lacks jurisdiction to proceed with an adult guardianship until your child reaches adulthood.
Pursuing guardianship creates significant changes in any family. For further questions and personalized advice, consult a New Mexico attorney.
Temporary guardianship for adults lasts up to 60 days. Temporary guardianships for minors last until the expiration date on the court order appointing the temporary guardian.
It can be overwhelming to decide which type of case to file for a child because the court handles so many child-related case categories. First, remember that conservatorship cases exclusively deal with money and financial powers. So, if your goal is to get an order allowing you to take care of a child, conservatorship won’t help. You’ll usually know that you need to file for conservatorship because someone like an insurance company or estate executor is asking for proof of it.
Guardianship and custody cases both issue orders about the care of a child. Guardianship cases only give an order to a non-parent and do not address conflict between the child’s two parents. So, if you’re trying to sort out parenting time with your ex, a custody case should give you what you need. Custody cases can also be part of divorce cases.
A key difference between guardianship and custody cases is the case's lifespan. Guardianship cases can be terminated, and the case – and its orders – go away. Custody cases remain in effect throughout a child’s minority. The court orders can be changed, but they never completely end.
Only the court can create guardianship because only the court can issue a court order. Guardianships are ultimately just court orders that grant the guardian certain powers. You can nominate someone for guardianship in your will or other written instrument, but the court still has to confirm the guardianship and issue the court order.
The guardianship process leaves many families feeling daunted, both by the consequences to their loved ones and by inviting the court into their lives. Several options exist, but many require planning and action before the respondent reaches incapacity.
Efficient estate planning can prevent the need for a guardian or conservator in later years. Advanced directives, wills, powers of attorney, and trusts provide many of the same powers and decision-making authority as court-ordered protective proceedings.
