When circumstances create difficulties for a loved one who lives in Albuquerque, they may be unable to make decisions on their own behalf or manage their daily affairs. In these situations, it may be appropriate for someone to request to act as the individual’s guardian.
Guardianship is a court-appointed status. It is only applied in situations where it can be proven to a neutral body that the protected person in question genuinely lacks “capacity”. Capacity, in the legal sense, refers to a person’s ability to make decisions regarding their legal affairs or to manage their daily affairs in general. Common scenarios include an older individual who has a degenerative brain disease (like Alzheimer’s) or an individual who has suffered from a medical condition that incapacitates them.
If you are someone seeking to obtain guardianship, know that an attorney is considered vital to the process. Also know that you must be prepared to respect the legal rights of the protected person and that you must uphold certain legal obligations, such as the filing of annual reports within 30 days of the date the guardianship was awarded.
New Mexico Financial & Family Law can assist families and individuals with navigating the oft-overwhelming process of obtaining guardianship over a loved one. We also represent individuals who have concerns with a guardian who may not be acting in their loved one’s best interests.
You can schedule a confidential case evaluation and consultation with our experienced adult guardianship attorney in Albuquerque when you call (505) 503-1637 or contact us online.
The process for being designated as a court-appointed guardian is outlined in a section further below.
If you are applying to become someone’s guardian (or filing a complaint regarding guardianship) in Albuquerque, then it is highly likely that your case will be handled through the Second District Court of New Mexico, located within the Downtown Courthouse complex on 400 Lomas Blvd.
All guardians and conservators are required by New Mexico law to submit annual reports within 30 days of the anniversary of their initial court appointment. The report must follow the format dictated within form Form 4-996 NMRA for guardians and Form 4-998 NMRA for conservators. Conservators must also submit an annual report inventorying the assets contained within their protected person’s estate using Form 4-997 NMRA within 90 days of the conservator’s initial appointment date.
A law passed in 2021 by the New Mexico state legislature implemented a pilot program whose purpose is to periodically review guardianship/conservatorship appointments and determine if they are still needed. The program is currently scheduled to begin on July 1, 2022, and is being conducted within certain state court districts. It is possible that cases held within the Second District Court of New Mexico could be subject to this periodic review. Refer to your respective judge or clerk of the court for updates, or ask an experienced Albuquerque adult guardianship attorney.
In the event that you are medically incapacitated, the court can appoint a guardian who makes legal decisions on your behalf. It may also appoint a conservator, who makes financial decisions on your behalf. Note that incapacitation can be temporary, such as an induced coma required as part of a surgical procedure. Or it can be indefinite, such as a lack of mental capacity caused by a progressed degenerative brain disease.
Regardless of the circumstances, individuals want someone with sound judgment and integrity to be appointed as their guardian. The courts will often work to establish a guardian the incapacitated person would have trusted, but without guidance by the person and clear evidence of an appropriate candidate, the court could designate a guardian somewhat arbitrarily. In other words, the person who ends up making decisions on your behalf could be chosen more or less at random unless the proper steps are taken before your incapacitation.
New Mexico Financial & Family Law understands the sensitive, complicated nature of adult guardianship and conservatorship. We want to help individuals plan ahead for the moment when they might be incapacitated by a disease, an accident, or the effects of old age. If you are a family member or loved one concerned about an existing guardianship arrangement, we can assist with that, too.
There are two primary ways that a guardian might be appointed by the court: under direction from a will, or as a result of a proceeding to appoint a guardian.
In the event of a person’s sudden incapacitation, the court will often appoint a temporary guardian (known as a Guardian Ad Litem, or GAL) for 60 days. This person is often an attorney representing the incapacitated person or someone who was given power of attorney over them.
Permanent guardianship is less commonly awarded, except in cases of legal guardianship for adults with disabilities. In order for the court to grant someone guardianship or conservatorship, the person must petition the court and await a lengthy proceeding.
The proceeding for establishing permanent legal guardianship for adults in New Mexico is as follows:
Courts may designate limited guardianship, which only applies to certain aspects of the incapacitated person’s life, or that only grants powers in the event of certain situations, such as if the person is undergoing medical rehabilitation. Full guardianship is rarer, and it grants full control over all legal decisions, similar to the powers afforded to a parent over their minor child.
In certain cases, an individual caring for an incapacitated spouse or child can name a guardian to take over their duties in the event of their death. The named person can accept the responsibility and be designated as a guardian through a district court probate proceeding.
Note that this process only applies to the spouse and/or children of a person who has written a will and recently died. It also does not resolve the matter of conservatorship, only guardianship.
There are options for assuming guardianship for adults with intellectual disabilities or guardianship for adults with mental illness. These types of guardianship for adults are similar to the above processes, but the process will be initiated after the adult in question already lacks capacity.
This situation may apply to a minor child with disabilities who assumes legal adult age at 18, or it may also affect someone who had capacity but has allegedly lost it as a result of a developing intellectual disability, mental illness, or medical condition.
In any event, the court will proceed to review the individual’s capacity according to the same proceeding as above. A guardian ad litem, a court visitor, and qualified health care professional will be appointed to evaluate the individual’s capacity, and the matter will be debated during the hearing in light of evidence and testimony.
If the individual in question lacks significant assets or only receives income in the form of Social Security Disability Insurance or a similar program, then the court may determine that conservatorship is not necessary in order to properly manage the individual’s finances and financial decisions.
Individuals seeking to protect themselves or a loved one in the event of their incapacitation should know that there are options beyond guardianship that offer similar levels of agency and management of the incapacitated person’s finances.
Alternatives to guardianship in New Mexico include:
Even when guardianship is established and an adult has been determined to lack capacity, they still retain legal rights to do the following:
If a person placed under guardianship or someone in their life suspects abuse, they can report allegations and observations to the judge who oversees their guardianship/conservatorship. This is known as a grievance process, and it can be initiated by anyone at any time.
New Mexico laws require guardians and conservators to maintain financial records for the person under their care for at least seven years, and they can be ordered to perform an audit at any time.
Materials provided by the state of New Mexico regarding guardianship explicitly indicate that “a lawyer will be needed for this process.”
An attorney’s knowledge and experience will be needed to determine if the appointments are necessary if the facts are sufficient to establish incapacity, and if the protected person’s interests are being fairly represented. Should you choose to pursue alternatives to adult guardianship, such as trust formation or durable financial power of attorney, an experienced lawyer can assist you with ensuring your legal documents are filled out completely and accurately. It is also vital to review these agreements to determine their enforceability, their validity, and whether they contain language that clearly demonstrates purpose or intent.
New Mexico Financial & Family Law understands how complicated and stressful these types of proceedings can be. We want to assist you with coming to the right arrangement for adult guardianship. Whether you are helping prepare for your own future or attempting to do what’s best for a loved one, we can be there for you to provide guidance and expertise.
Call (505) 886-9606 or contact us online to schedule a confidential appointment to discuss your case and examine your options. We are here and waiting to assist you.
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