2020 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 45-5-307 - Death, substitution, review and termination of guardianship.

A. On the petition of the incapacitated person or any person interested in the incapacitated person's welfare and upon notice and hearing, the court may remove a guardian and appoint a successor if it is in the best interest of the incapacitated person.

B. Upon death, removal or resignation of a guardian, the court may appoint another guardian or make any other order that may be appropriate. If a successor guardian is appointed, the successor guardian succeeds to the title and powers of the successor guardian's predecessor.

C. The incapacitated person or any person interested in the incapacitated person's welfare may petition for an order that the incapacitated person is no longer incapacitated and for removal or resignation of the guardian. A request for this order may be made by informal letter to the court or judge. Any person who knowingly interferes with transmission of this kind of request to the court may be adjudged guilty of contempt of court.

D. Unless waived by the court upon the filing of a petition to terminate a guardianship for reasons other than the death of the incapacitated person, the court shall follow the same procedures to safeguard the rights of the incapacitated person as those that apply to a petition for appointment of a guardian as set forth in Section 45-5-303 NMSA 1978.

E. In a proceeding that increases the guardian's authority or reduces the autonomy of the protected person, the court shall follow the same procedures to safeguard the rights of the incapacitated person as those that apply to a petition for appointment of a guardian, as set forth in Section 45-5-303 NMSA 1978.

F. Following receipt of a request for review, the court shall hold a status hearing, which may be informal, to determine the appropriate order to be entered. If the court finds the incapacitated person is capable of more autonomy than at the time of the original order, the court may enter an order removing the guardian, terminating the guardianship or reducing the powers previously granted to the guardian. The court has the option to follow all or part of the procedures that apply for the appointment of a guardian as set forth in Section 45-5-303 NMSA 1978.

G. At any time following the appointment of a guardian, but not later than ten years after the initial appointment of a guardian for a protected person and every ten years thereafter, the court shall:

(1) hold a status hearing, after notice to the guardian, the protected person and appropriate interested persons, to review the status of the protected person's capacity and the continued need for a guardian; or

(2) appoint a court investigator to assess the protected person's capacity. The court investigator shall prepare a detailed report to the court regarding the status of the protected person's capacity and the continued need for a guardian. Any report shall be made available to the guardian, the protected person and interested persons identified by the court.

H. If the court is unable to contact either the guardian or the protected person and neither appears for the status hearing held pursuant to Paragraph (1) of Subsection G of this section, the court shall appoint a guardian ad litem to investigate and report to the court as to the status of the protected person and the guardian. Any report shall be made available to the guardian, the protected person and appropriate interested persons, if known to the court.

I. Following the status hearing or the court's report from the court investigator or guardian ad litem on the status of the protected person and the guardian as provided in Subsection H of this section, the court may enter an appropriate order; provided that, in entering an order that increases the guardian's authority or reduces the autonomy of the protected person, the court shall follow the same procedures to safeguard the rights of the incapacitated person as those that apply to a petition for appointment of a guardian, as set forth in Section 45-5-303 NMSA 1978.

History: 1953 Comp., § 32A-5-307, enacted by Laws 1975, ch. 257, § 5-307; 1989, ch. 252, § 8; 1993, ch. 301, § 6; 2009, ch. 159, § 36; 2019, ch. 228, § 4.

The 2019 amendment, effective July 1, 2019, required the court, following an appointment of a guardian, to appoint a court investigator to assess the protected person's capacity, and required the court investigator to prepare a report for the court regarding the status of the protected person's capacity; in the section heading, added "death"; in Subsection G, added Paragraph G(2); added new subsection designation "H." and redesignated former Subsection H as Subsection I; in Subsection H, after "status hearing", added "held pursuant to Paragraph (1) of Subsection G of this section", after "investigate and", deleted "advise" and added "report", and added "Any report shall be made available to the guardian, the protected person and appropriate interested persons, if known to the court."; and in Subsection I, after "report from the", added "court investigator or".

The 2009 amendment, effective June 19, 2009, added Subsections E through H.

The 1993 amendment, effective July 1, 1993, inserted "Death" and substituted "Guardianship" for "Incapacity" in the section heading; inserted "and upon notice and hearing" in Subsection A; rewrote Subsections B and D; and made minor stylistic changes in Subsection A.

The 1989 amendment, effective June 16, 1989, substituted "incapacitated person" for "ward" several times throughout the section; in Subsection C, deleted the former first sentence, which read "An order adjudicating incapacity may specify a minimum period, not exceeding one year, during which no petition for an adjudication that the ward is no longer incapacitated may be filed without special leave", and deleted "Subject to this restriction" at the beginning of the second sentence; and, in Subsection D, substituted "Upon" for "Before removing a guardian, accepting the resignation of a guardian or" and substituted "shall" for "may" in the first sentence, added the second sentence, and made minor stylistic changes throughout the subsection.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 14 C.J.S. Chemical Dependents § 4; 49 C.J.S. Insane Persons § 45.