2021 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 5 - Protection of Persons Under Disability and Their Property
Part 2 - GUARDIAN OF MINORS
Section 45-5-209 - Powers and duties of guardian of minor.
A. A guardian of a minor protected person has the powers and responsibilities of a parent regarding the protected person's support, care and education, but a guardian is not personally liable for the protected person's expenses and is not liable to third persons by reason of the relationship for acts of the protected person.
B. In particular and without qualifying the foregoing, a guardian shall:
(1) become or remain personally acquainted with the protected person and maintain sufficient contact with the protected person to know of the protected person's capacities, limitations, needs, opportunities and physical and mental health;
(2) take reasonable care of the protected person's personal effects and commence protective proceedings if necessary to protect other property of the protected person;
(3) apply any available money of the protected person to the protected person's current needs for support, care and education;
(4) conserve any excess money of the protected person for the protected person's future needs, but if a conservator has been appointed for the estate of the protected person, the guardian, at least quarterly, shall pay to the conservator money of the protected person to be conserved for the protected person's future needs; and
(5) report the condition of the protected person and of the protected person's estate that has been subject to the guardian's possession or control, as ordered by the court on petition of any person interested in the protected person's welfare or as required by court rule.
C. A guardian may:
(1) receive money payable for the support of the protected person to the protected person's parent, guardian or custodian under the terms of any statutory benefit or insurance system or any private contract, devise, trust, conservatorship or custodianship and money or property of the protected person paid or delivered pursuant to the provisions of Section 45-5-103 NMSA 1978 or any other statute;
(2) if consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the protected person, take custody of the person of the protected person and establish the protected person's place of abode within or without New Mexico;
(3) if no conservator for the estate of the protected person has been appointed, institute proceedings, including administrative proceedings, or take other appropriate action to compel the performance by any person of a duty to support the protected person or to pay sums for the welfare of the protected person;
(4) consent to medical or other professional care, treatment or advice for the protected person without liability by reason of the consent for injury to the protected person resulting from the negligence or acts of third persons unless a parent would have been liable in the circumstances;
(5) consent to the marriage or adoption of the protected person; and
(6) if reasonable under all of the circumstances, delegate to the protected person certain responsibilities for decisions affecting the protected person's well-being.
D. A guardian is entitled to reasonable compensation for services as guardian and to reimbursement for room, board and clothing personally provided to the protected person, but only as approved by order of the court. If a conservator, other than the guardian or one who is affiliated with the guardian, has been appointed for the estate of the protected person, reasonable compensation and reimbursement to the guardian may be approved and paid by the conservator without order of the court controlling the guardian.
E. In the interest of developing self-reliance on the part of a protected person or for other good cause, the court, at the time of appointment or later, on its own motion or on appropriate petition or motion of the minor or other interested person, may limit the powers of a guardian otherwise conferred by this section and thereby create a limited guardianship. Any limitation on the statutory power of a guardian of a minor must be endorsed on the guardian's letters or, in the case of a guardian by parental appointment, must be reflected in letters that are issued at the time any limitation is imposed. Following the same procedure, a limitation may be removed and appropriate letters issued.
History: 1953 Comp., § 32A-5-209, enacted by Laws 1975, ch. 257, § 5-209; repealed and reenacted by Laws 1995, ch. 210, § 54; 2009, ch. 159, § 29.
ANNOTATIONSRepeals and reenactments. — Laws 1995, ch. 210, § 54 repealed 45-5-209 NMSA 1978, as enacted by Laws 1975, ch. 257, § 5-209, and enacted a new section, effective July 1, 1995.
Compiler's notes. — This section includes within its scope some of the functions of former 32-1-17, 1953 Comp.
The 2009 amendment, effective June 19, 2009, deleted "ward" and added "protected person".
Continuing obligation to protect ward's assets. — A guardian had a continuing obligation to accept and protect assets belonging to ward according to any terms attached to those assets, until the guardianship had been terminated. In re Estate of Guerra, 1981-NMCA-063, 96 N.M. 608, 633 P.2d 716 (decided under former law).
Regardless of assets' source. — The guardianship statutes establish a guardian's duty to receive and account for funds deliverable or delivered for the ward's benefit, regardless of the manner in which those funds come into the guardian's possession. In re Estate of Guerra, 1981-NMCA-063, 96 N.M. 608, 633 P.2d 716 (decided under former law).
Accounting by guardian. — The matter of honesty in rendition of account, of good faith in the discharge of the duty as it applies both to an administrator and a guardian, and the question whether the expenditures were entitled to be made and were in fact made are paramount in the consideration and allowance of credits. The guardian is entitled to be credited with all reasonable expenses incurred in the maintenance and education of the ward. Stroope v. Potter, 1944-NMSC-049, 48 N.M. 404, 151 P.2d 748.
Law reviews. — For comment, "Statute of Limitations Applied to Minors: The New Mexico Court of Appeals' Balance of Competing State Interests to Favor Children," see 35 N.M. L. Rev. 535 (2005).
For note, "Tort Law Either the Parents or the Child May Claim Compensation for the Child's Medical and Non-Medical Damages: Lopez v. Southwest Community Health Services," see 23 N.M.L. Rev. 373 (1993).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Constitutionality of statute authorizing guardian to sell or lease land of ward, 4 A.L.R. 1552.
Right of guardian to expend principal of ward's estate for support and maintenance, 5 A.L.R. 632.
Right of guardian to invest trust funds in corporate stock, 12 A.L.R. 574, 122 A.L.R. 657, 78 A.L.R.2d 7.
Court's power to authorize guardian to borrow ward's money, 30 A.L.R. 461.
Exchange as within power of sale, 63 A.L.R. 1003.
Character of claims or obligations contemplated by statute expressly giving guardian authority as to borrowing money, 85 A.L.R. 215.
Power of guardian as to mortgaging infant's real property, 95 A.L.R. 839.
Power and duty of court as to protection of investment in stocks by submitting to voluntary assessment, 104 A.L.R. 979.
Guardian's purchase from corporation of which he is officer or stockholder as voidable or as ground for surcharging his account, 105 A.L.R. 449.
Ownership of stock in corporation in which guardian holds stock in fiduciary capacity by guardian in his own right, 106 A.L.R. 220, 161 A.L.R. 1039.
Sale without order of court, 108 A.L.R. 936.
Option under insurance policy, guardian's power to make election, 112 A.L.R. 1063, 127 A.L.R. 454, 136 A.L.R. 1045.
Liability in absence of mandatory statute, of guardian for loss of funds as affected by failure to obtain court order authorizing investment, 116 A.L.R. 437.
Transaction with affiliated corporation by corporate guardian as violation of rule against self-dealing, 151 A.L.R. 905.
Power of guardian as to compromise of liquidated contract claim or money judgment, 155 A.L.R. 196.
Guardian's contract employing attorney as binding upon ward or his estate, 171 A.L.R. 468.
Validity and enforceability of agreement to drop or compromise will contest or withdraw objections to probate, or of agreement to induce others to do so, 42 A.L.R.2d 1319.
Power of court to confirm sale of ward's property over objection of guardian, 43 A.L.R.2d 1445.
Guardian's liability for interest on ward's funds, 72 A.L.R.2d 757.
Capacity of guardian to sue or be sued outside state where appointed, 94 A.L.R.2d 162.
Guardian's power to make lease for infant ward beyond minority or term of guardianship, 6 A.L.R.3d 570.
Judgment in guardian's final accounting proceedings as res judicata in ward's subsequent action against guardian, 34 A.L.R.4th 1121.
Guardian's authority, without seeking court approval, to exercise ward's right to revoke trust, 53 A.L.R.4th 1297.
Validity of inter vivos gift by ward to guardian or conservator, 70 A.L.R.4th 499.
Propriety of surgically invading incompetent or minor for benefit of third party, 4 A.L.R.5th 1000.
39 C.J.S. Guardian and Ward §§ 55 to 109.
