Q : What is a guardian?
A : A guardian is a person or organization appointed by a court pursuant to the Probate Code with authority to make decisions about personal affairs and health care for an incapacitated adult.
Q : What is meant by "incapacitated adult?"
A : An incapacitated adult is an individual, 18 years of age or older, who lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his or her care and safety. Incapacity may be a result of functional impairment due to developmental disability, mental illness, physical illness or disability, chronic drug use, traumatic brain injury, Alzheimer's (or other types of dementia), or other causes. An incapacitated adult is also referred to as a "ward."
Q : Who can be a guardian?
A : Any adult or agency found to be qualified by the judge may be appointed as guardian of an incapacitated person, although preference is given to family members. The guardian may not operate or work for the long-term care facility in which the incapacitated person lives.
Q : If more than one person would like to be guardian, how does the court decide?
A : According to the New Mexico Probate Code, priority is given in the following order; however, the court will select the person it considers best qualified and most appropriate as guardian for the incapacitated person:
a. A guardian or other court-appointed fiduciary;
b. Any person nominated by the incapacitated person to serve as guardian prior to his or her incapacity, such as in a power of attorney or trust document;
c. The incapacitated person's spouse;
d. An adult child of the incapacitated person;
e. The incapacitated person's parent, or someone nominated by the parent in a will or other document;
f. Any relative of the incapacitated person with whom he or she has resided for more than six months;
g. A person nominated by the incapacitated person's caregiver or someone paying benefits to him; or
h. Any other concerned party.
Q : How does one go about setting up a guardianship?
A : For full details, see Initiating the Guardianship Process.
Q : Will the alleged incapacitated person be at the court hearing?
A : He or she must be present unless the court determines that it is not in their best interest to be present because of a health or safety concern for them or for others.
Q : Are there any alternatives to guardianship?
A : Yes. For details see Alternatives to Guardianship.
Q : What are the powers, duties and responsibilities of a guardian?
A : The Probate Code states that the guardian "has the same powers, rights and duties respecting the incapacitated person that a parent has respecting his unemancipated minor child ..." It also states that "An incapacitated person for whom a guardian has been appointed retains all legal and civil rights except those which have been expressly limited by court order or have been specifically granted to the guardian by the court." The court will grant the guardian only those decision-making powers required to provide for the incapacitated person's care, comfort and safety. Unless limited by the court, the guardian's powers generally include:
a. Determining where the ward resides;
b. Visiting the ward at least once per month;
c. Arranging and giving consent for necessary care, treatment and other services (unless there is someone else, namely an "agent," entitled to make health-care decisions);
d. Ensuring that the ward's basic daily personal needs are met, including food, clothing and shelter;
e. In some cases, managing finances for a ward with limited assets;
f. Exercising his or her supervisory powers over the ward in a manner that is least restrictive of his or her personal freedom and that preserves the ward's human and civil rights;
g. Encouraging the ward to be as independent and autonomous as possible;
h. Serving as advocate for the ward; and
i. Making an annual report to the court on the ward's current status.
Q : Is the guardian financially responsible for the ward?
A : No. The Probate Code states that: "[A] guardian is not legally obligated to provide from his own funds for the incapacitated person and is not liable to third persons for acts of the incapacitated person solely by reason of the guardianship."
Q : Can a guardian be removed as guardian for good reason?
A : Yes. The guardian can be held liable for his or her own negligence or for unethical behavior. The incapacitated person or any other person can petition the court to schedule a hearing to discuss removal of a guardian and appointment of another.
Q : Can a guardianship be revoked?
A : Only the court can terminate a guardianship and restore a ward to full legal capacity. If a person who has been found by the court to be incapacitated wants to request a change or termination of guardianship, they can write a letter to the judge and that will trigger a hearing on the matter.
Q : What is a temporary guardian?
A : A guardian that is appointed pending a full hearing on the guardianship petition in cases where an adherence to normal court procedures would cause immediate and irreparable harm to the alleged incapacitated person and/or their property. Sometimes a temporary guardian is used when the incapacity is expected to be temporary. Such an appointment is limited to 60 days but may, upon court order, be extended for not more than 30 more days. The temporary order may also specify powers granted to the temporary guardian in order to prevent the threatened harm.
Q : What is a mental health treatment guardian?
A : A guardian appointed pursuant to the Mental Health and Disabilities Code with authority to make decisions regarding invasive mental health treatment, such as medication or electroconvulsive shock. A Probate Code (plenary or limited) guardian can request further authority from the court if invasive mental health treatment decisions need to be made.
Q : What is a guardian ad litem?
A : A guardian ad litem is an attorney appointed by the court to represent the alleged incapacitated person. The GAL will interview them and present their position to the court. In addition, they will interview the court visitor and the proposed guardian, as well as family members and care providers. They will also interview the qualified health care professional and review the report they submit to the court. If they believe it is necessary, they will obtain a second opinion with regard to medical and psychological assessments. Once a permanent guardian is appointed, the guardian ad litem's involvement ends.
Q : What is a visitor?
A : A professional who has no personal interest in the case and who has been trained or has expertise to appropriately evaluate the needs and the level of functioning of the alleged incapacitated person. The visitor interviews the alleged incapacitated person (at their place of abode), the proposed guardian, family members, care providers, and others and then submits a written report to the court. They will also visit the proposed place of abode for the alleged incapacitated person, if there is a plan to move them once the guardian is appointed. The visitor may be, but is not limited to being, a psychologist, social worker, counselor, developmental disability professional, physical or occupational therapist, educator, or rehabilitation worker.
Q : What is a qualified health care professional?
A : A physician, psychologist, nurse practitioner or other health care practitioner with training and expertise in assessing functional impairment. They evaluate the alleged incapacitated person and submit a written report to the court describing the nature and extent of their incapacity, if any, and their current level of functioning.