2017 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 5 - Protection of Persons Under Disability and Their Property
Part 3 - GUARDIANS OF INCAPACITATED PERSONS
Section 45-5-309 - Notices in guardianship proceedings.
45-5-309. Notices in guardianship proceedings.
A. In a proceeding for the appointment or removal of a guardian of an incapacitated person, other than the appointment of a temporary guardian or temporary suspension of a guardian, notice of hearing and a copy of the petition and any interim orders that may have been entered shall be given to each of the following:
(1) the person alleged to be incapacitated;
(2) the person's spouse, parents and adult children, or if there are no adult children, at least one of the person's closest adult relatives if any can be found;
(3) the proposed guardian; and
(4) a person, as far as known or as can reasonably be ascertained, previously nominated or designated in a writing signed by the incapacitated person prior to incapacity that has not been revoked by the incapacitated person or terminated by a court. This includes but is not limited to writings executed under the Uniform Health-Care Decisions Act [Chapter 24, Article 7A NMSA 1978], the Mental Health Care Treatment Decisions Act [Chapter 24, Article 7B NMSA 1978], the Uniform Power of Attorney Act [45-5B-101 through 45-5B-403 NMSA 1978], the Uniform Probate Code and the Uniform Trust Code [Chapter 46A NMSA 1978].
Notice of hearing shall be given to a person who is serving as the guardian or conservator of the person to be protected or who has primary responsibility for the person's care.
B. Notice shall be served personally on the alleged incapacitated person and the person's spouse if they can be found within New Mexico. Notice to an out-of-state spouse, the parents and to all other persons, except the alleged incapacitated person, shall be given as provided in Section 45-1-401 NMSA 1978.
C. At least fourteen days' notice shall be given before the hearing takes place. The notice shall be in plain language and large type and shall include the following information and shall be substantially in the following form:
"NOTICE
TO: (name and address of person receiving notice)
On (date of hearing) at (time of hearing) in (place of hearing) at (city), New Mexico, the (name and address of court) will hold a hearing to determine whether a guardian should be appointed for (name of alleged incapacitated person). The purpose of this proceeding is to protect (name of alleged incapacitated person). A copy of the petition requesting appointment of a guardian is attached to this notice.
At the hearing, the court will determine whether (name of alleged incapacitated person) is an incapacitated person under New Mexico law.
If the court finds that (name of alleged incapacitated person) is incapacitated, the court at the hearing shall also consider whether (name of proposed guardian, if any) should be appointed as guardian of (name of alleged incapacitated person). The court may, in its discretion, appoint some other qualified person as guardian. The court may also, in its discretion, limit the powers and duties of the guardian to allow (name of alleged incapacitated person) to retain control over certain activities.
(Name of alleged incapacitated person) shall attend the hearing and be represented by an attorney. The petition may be heard and determined in the absence of (name of alleged incapacitated person) if the court determines that the presence of (name of alleged incapacitated person) is not possible. If (name of alleged incapacitated person) attends the hearing and is not represented by an attorney, the court must appoint an attorney to represent the alleged incapacitated person.
The court may, on its own motion or on request of any interested person, postpone the hearing to another date and time.
___________________________
(signature of petitioner)". End Form
History: 1953 Comp., 32A-5-309, enacted by Laws 1975, ch. 257, 5-309; 1989, ch. 252, 10; 1993, ch. 301, 7; 2009, ch. 159, 37.
