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.
Call us today to discuss your concerns and your hopes for how you or a close family member might handle a situation involving incapacitation. We have decades of experience handling New Mexico legal, financial, and probate law. Schedule a consultation today when you call (505) 503-1637 or contact us online.
Process for the Appointment of a Guardian in New Mexico
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.
Court-Appointed Guardian Process
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:
- The court will designate an official “court visitor”, qualified health care professional, and a guardian ad litem.
- The visitor evaluates the alleged incapacitated person’s capabilities in the home setting, including their ability to perform basic daily functions. The qualified health care professional will perform their own assessment in light of the court visitor’s findings and their own medical opinion.
- The guardian ad litem oversees the process to protect the alleged incapacitated person’s interests, and they will interview all parties involved to form a recommendation to the court whether it’s in the incapacitated person’s interests for the motion for guardianship to proceed.
- A hearing is conducted, with the incapacitated person present when possible. The court visitor, qualified health care professional, and guardian ad litem all submit reports. The GAL may question parties or present evidence.
- The judge will either deny the motion or sign a prepared order, which the guardian ad litem may have drafted. If the judge determines the person in question is incapacitated, the order will designate an appropriate guardian and/or conservator. The order will override previously assigned powers of attorney.
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.
Adult Guardianship Established by a Will
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.
Legal Guardianship for Adults with Disabilities
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.
Alternatives to Legal Guardianship for Adults
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:
- A durable financial power of attorney
- Advanced directives that provide direction for certain medical decisions or financial decisions in the event of incapacitation
- Co-ownership of property
- Bank account signatory
- Representative payeeship, which applies to certain benefits
- Trusts — A revocable living trust can be used to allocate funds to be managed and to designate a trustee to manage assets, possibly avoiding the need for a conservatorship
Rights Under Guardianship
Even when guardianship is established and an adult has been determined to lack capacity, they still retain legal rights to do the following:
- Make or change a will or trust
- Vote and participate in political activities
- Practice religion
- Receive personal mail
- Receive representation from a lawyer
- Associate with friends and family
- Ask the court to end the guardianship and/or conservatorship or change the guardian and/or conservator
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.
Protect Your Rights or the Rights of a Loved One With Help From Experienced Guardianship Attorneys
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) 503-1637 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.