LEGAL PROCESS to Initiate Guardianship/Conservatorship

Under New Mexico law, it is generally assumed that any person over age 18 is a competent adult and has the legal capacity to make their own decisions. If an adult is unable to manage their own affairs or understand the consequences of their actions, they may be considered "incapacitated." Family members, friends or others who are concerned for their safety can ask the court to appoint a guardian to make decisions for them and to monitor their care and safety.

Alternatives to guardianship must be thoroughly considered before a petition for guardianship is filed with the court. Once the decision has been made to pursue guardianship, the following steps are followed:

1. A family member, friend or other interested party files a petition for appointment of a guardian with the district court in the county where the "alleged incapacitated person" resides (usually through an attorney). The proposed guardian is named in the petition, as well as the guardian ad litem, visitor and qualified health care professional. If there is an emergency situation that threatens the safety of the alleged incapacitated person, a temporary guardian may be appointed to take care of immediate and pressing needs pending determination on whether they are an "incapacitated adult" and a permanent guardian is needed.
2. A hearing date is set, and a guardian ad litem, court visitor, and qualified health care professional are appointed by the court to do interviews and assessments prior to the hearing date and to make recommendations as to whether a guardian is needed and, if so, whether the proposed guardian is the most appropriate choice. (See Glossary of Terms for details on the duties of each party appointed.)
3. The person(s) who petitioned the court, the alleged incapacitated person, guardian ad litem, court visitor, qualified health care professional and the proposed guardian all receive copies of the petition and notice of hearing date, and are entitled to attend the hearing.
4. The judge may ask anyone at the hearing to testify or answer questions about the alleged incapacitated person's ability to care for themselves and their level of functioning. The guardianship will only be granted if the court is satisfied that there is clear and convincing evidence of incapacity.
5. If the judge agrees that a guardian is needed, the court will approve an order appointing one, and Letters of Guardianship will be issued giving the guardian authority to act. If the alleged incapacitated person can make some decisions on their own, the guardianship may be limited to only certain areas of their life ("limited guardianship"). For more information on types of guardianships, see Glossary of Terms.
6. Once appointed, the guardian is required to visit the incapacitated adult at least once a month and to file an annual report with the court on their care and maintenance.
7. The process for initiating a conservatorship is similar to that for appointing a guardian. Once appointed, the conservator must file an annual accounting with the court.
8. An incapacitated adult can write to the court at any time requesting a change or termination of guardianship. Once guardianship is ordered, only the court can restore an incapacitated adult to full legal capacity.