2021 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 45-5-303 - Procedure for court appointment of a guardian of an incapacitated person.
A. An interested person may petition for appointment of a guardian for an alleged incapacitated person.
B. A petition under Subsection A of this section shall state the petitioner's name, principal residence, current street address, if different, relationship to the alleged incapacitated person, interest in the appointment, the name and address of any attorney representing the petitioner and, to the extent known, the following:
(1) the alleged incapacitated person's name, age, principal residence, current street address, if different, and, if different, address of the dwelling in which it is proposed that the alleged incapacitated person will reside if the petition is granted;
(2) the name and address of the alleged incapacitated person's:
(a) spouse, or, if the alleged incapacitated person has none, an adult with whom the alleged incapacitated person is in a long-term relationship of indefinite duration in which the individual has demonstrated an actual commitment to the alleged incapacitated person similar to the commitment of a spouse and in which the individual and the alleged incapacitated person consider themselves to be responsible for each other's well-being;
(b) adult children or, if none, each parent and adult sibling of the alleged incapacitated person or, if none, at least one adult nearest in kinship to the alleged incapacitated person who can be found with reasonable diligence; and
(c) adult stepchildren whom the alleged incapacitated person actively parented during the stepchildren's minor years and with whom the alleged incapacitated person had an ongoing relationship in the two-year period immediately preceding the filing of the petition;
(3) the name and current address of each of the following, if applicable:
(a) a person responsible for care of the alleged incapacitated person;
(b) any attorney currently representing the alleged incapacitated person;
(c) any representative payee appointed by the federal social security administration for the alleged incapacitated person;
(d) a guardian or conservator acting for the alleged incapacitated person in New Mexico or in another jurisdiction;
(e) a trustee or custodian of a trust or custodianship of which the alleged incapacitated person is a beneficiary;
(f) any fiduciary for the alleged incapacitated person appointed by the federal department of veterans affairs;
(g) an agent designated under a power of attorney for health care in which the alleged incapacitated person is identified as the principal;
(h) an agent designated under a power of attorney for finances in which the alleged incapacitated person is identified as the principal;
(i) a person nominated as guardian by the alleged incapacitated person;
(j) a person nominated as guardian by the alleged incapacitated person's parent or spouse in a will or other signed record;
(k) a proposed guardian and the reason the proposed guardian should be selected; and
(l) a person known to have routinely assisted the alleged incapacitated person with decision making during the six months immediately preceding the filing of the petition;
(4) the reason a guardianship is necessary, including a brief description of:
(a) the nature and extent of the alleged incapacitated person's alleged need;
(b) any least restrictive alternative for meeting the alleged incapacitated person's alleged need that has been considered or implemented;
(c) if no least restrictive alternative has been considered or implemented, the reason it has not been considered or implemented; and
(d) the reason a least restrictive alternative instead of guardianship is insufficient to meet the alleged incapacitated person's alleged need;
(5) whether the petitioner seeks a limited guardianship or full guardianship;
(6) if the petitioner seeks a full guardianship, the reason a limited guardianship or protective arrangement instead of guardianship is not appropriate;
(7) if a limited guardianship is requested, the powers to be granted to the guardian;
(8) the name and current address, if known, of any person with whom the petitioner seeks to limit the alleged incapacitated person's contact;
(9) if the alleged incapacitated person has property other than personal effects, a general statement of the alleged incapacitated person's property, with an estimate of its value, including any insurance or pension, and the source and amount of other anticipated income or receipts; and
(10) whether the alleged incapacitated person needs an interpreter, translator or other form of support to communicate effectively with the court or understand court proceedings.
C. Notice of a petition under this section for the appointment of a guardian and the hearing on the petition shall be given as provided in Section 45-5-309 NMSA 1978.
D. After the filing of a petition, the court shall set a date for hearing on the issues raised by the petition. Unless an alleged incapacitated person already has an attorney of the alleged incapacitated person's own choice, the court shall appoint an attorney to represent the alleged incapacitated person. The court-appointed attorney in the proceeding shall have the duties of a guardian ad litem, as set forth in Section 45-5-303.1 NMSA 1978.
E. The person alleged to be incapacitated shall be examined by a qualified health care professional appointed by the court who shall submit a report in writing to the court. The report shall:
(1) describe the nature and degree of the alleged incapacitated person's incapacity, if any, and the level of the alleged incapacitated person's intellectual, developmental and social functioning; and
(2) contain observations, with supporting data, regarding the alleged incapacitated person's ability to make health care decisions and manage the activities of daily living.
F. The court shall appoint a visitor who shall interview the person seeking appointment as guardian and the person alleged to be incapacitated. The visitor shall also visit the present place of abode of the person alleged to be incapacitated and the place where it is proposed the alleged incapacitated person will be detained or reside if the requested appointment is made. The visitor shall evaluate the needs of the person alleged to be incapacitated and shall submit a written report to the court. The report shall include a recommendation regarding the appropriateness of the appointment of the proposed guardian. The report to the court shall also include recommendations regarding:
(1) those aspects of personal care that the alleged incapacitated person can manage without supervision or assistance;
(2) those aspects of personal care that the alleged incapacitated person could manage with the supervision or assistance of support services and benefits; and
(3) those aspects of personal care that the alleged incapacitated person is unable to manage without the supervision of a guardian.
Unless otherwise ordered by the court, the appointment of the visitor terminates and the visitor is discharged from the visitor's duties upon entry of an order appointing a guardian and acceptance of the appointment by the guardian.
G. A person alleged to be incapacitated shall be present at the hearing on the issues raised by the petition and any response to the petition unless the court determines by evidence that it is not in the alleged incapacitated person's best interest to be present because of a threat to the health or safety of the alleged incapacitated person or others as determined by the court. At a hearing conducted pursuant to this section, the person alleged to be incapacitated may:
(1) present evidence and subpoena witnesses and documents;
(2) examine witnesses, including a court-appointed guardian ad litem, qualified health care professional and visitor; and
(3) otherwise participate in the hearing.
H. The court upon request or its own motion may conduct hearings at the location of the alleged incapacitated person who is unable to be present in court.
I. The rules of evidence shall apply and no hearsay evidence that is not otherwise admissible in a court shall be admitted into evidence except as otherwise provided in this article. There is a legal presumption of capacity, and the burden of proof shall be on the petitioner to prove the allegations set forth in the petition. Such proof shall be established by clear and convincing evidence.
J. The existence of a proceeding for or the existence of a guardianship for an adult is a matter of public record unless the court seals the record after:
(1) the alleged incapacitated person or individual subject to guardianship requests that the record be sealed; and
(2) either:
(a) the petition for guardianship is dismissed; or
(b) the guardianship is terminated.
K. An alleged incapacitated person or the protected person subject to a proceeding for a guardianship, whether or not a guardian is appointed, an attorney designated by the alleged incapacitated person or the protected person and a person entitled to notice are entitled to access court records of the proceeding and resulting guardianship. A person not otherwise entitled to access court records under this subsection for good cause may petition the court for access to court records of the guardianship. The court shall grant access if access is in the best interest of the alleged incapacitated person or the protected person or furthers the public interest and does not endanger the welfare or financial interests of the alleged incapacitated person or the protected person.
L. A report pursuant to Subsections E and F of this section or a written report filed pursuant to Section 45-5-303.1 or 45-5-314 NMSA 1978 is confidential and shall be sealed on filing, but is available to:
(1) the court;
(2) the alleged incapacitated person who is the subject of the report or evaluation, without limitation as to use;
(3) the petitioner, visitor, guardian ad litem and an attorney of record for purposes of the proceeding;
(4) unless the court orders otherwise, an agent appointed under a power of attorney for health care or power of attorney for finances in which the alleged incapacitated person is the principal; and
(5) any other person if it is in the public interest, as determined by the court, or for a purpose the court orders for good cause.
M. Notwithstanding the provisions of Subsection J of this section, a disclosure of information shall not include diagnostic information, treatment information or other medical or psychological information.
N. The issue of whether a guardian shall be appointed for the alleged incapacitated person shall be determined by the court at an open hearing unless, for good cause, the court determines otherwise.
O. Upon request of the petitioner or alleged incapacitated person, the court shall schedule a jury trial.
History: 1953 Comp., § 5-303, enacted by Laws 1975, ch. 257, § 5-303; repealed and reenacted by Laws 1989, ch. 252, § 5; 1993, ch. 301, § 3; 1998, ch. 32, § 3; 2009, ch. 159, § 33; 2018, ch. 10, § 4; 2019, ch. 228, § 2.
ANNOTATIONSRepeals and reenactments. — Laws 1989, ch. 252, § 5 repealed former 45-5-303 NMSA 1978, as enacted by Laws 1975, ch. 257, § 5-303, relating to procedure for court appointment of a guardian of an incapacitated person, and enacted a new section, effective June 16, 1989.
Cross references. — For involuntary commitment of developmentally disabled adults by Uniform Probate Code guardian, see 43-1-13 NMSA 1978.
For voluntary admission, see 43-1-14 NMSA 1978.
The 2019 amendment, effective July 1, 2019, revised hearing procedures on a petition for appointment of a guardian for an alleged incapacitated person, provided those who are alleged to be incapacitated with the opportunity to participate in hearings on the petition for appointment of a guardian; in Subsection G, in the introductory paragraph, added "At a hearing conducted pursuant to this section, the person alleged to be incapacitated may", and added Paragraphs G(1) through G(3); and in Subsection L, in the introductory clause, after "Section 45-5-303.1", added "or 45-5-314".
The 2018 amendment, effective July 1, 2018, revised the procedure for court appointment of a guardian of an incapacitated person; deleted former Subsection A, added new Subsections A and B, and redesignated former Subsections B through H as Subsections C through I, respectively; in Paragraph E(1), after "the level of the", deleted "respondent's" and added "alleged incapacitated person's"; deleted former Subsection I, added new Subsections J through L, and redesignated former Subsection J as Subsection M; in Subsection M, after "Subsection", deleted "I" and added "J"; and deleted former Subsection K, added new Subsection N, and redesignated former Subsection L as Subsection O.
Applicability. — Laws 2018, ch. 10, § 16 provided that the provisions of Laws 2018, ch. 10, §§ 1 through 14 apply to:
A. a proceeding for appointment of a guardian or conservator or for a protective arrangement instead of guardianship or conservatorship commenced on or after July 1, 2018; and
B. a guardianship, conservatorship or protective arrangement instead of guardianship or conservatorship in existence on June 30, 2018 unless the court finds application of a particular provision of this act would substantially interfere with the effective conduct of the proceeding or prejudice the rights of a party, in which case the particular provision of this act does not apply and the superseded law applies.
Temporary provisions. — Laws 2018, ch. 10, § 15 provided that on or before November 1, 2018, and again on or before November 1, 2019, the administrative office of the courts shall report to the legislative finance committee on the following topics:
A. the status of the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act as approved by the national conference of commissioners on uniform state laws, including publication of official commentary and introduction and enactment by state legislatures;
B. the feasibility of the implementation in New Mexico of the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act; and
C. an estimate of the financial cost to the judiciary to implement the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act.
The 2009 amendment, effective June 19, 2009, in Paragraph (1) of Subsection A, changed "age" to "date of birth"; added Paragraphs (5), (7) and (10) of Subsection A; deleted Paragraph (8) of Subsection A, which required a statement of the names and addresses of any other incapacitated persons for whom the proposed guardian is acting; and in Paragraph (13) of Subsection A, added "including whether the guardian has ever been convicted of a felony".
The 1998 amendment, effective May 20, 1998, in Subsection A, inserted "Uniform"; in Paragraph A(1) inserted "and"; in the last sentence of Subsection H, substituted "shall" for "must"; in Subsection I, inserted "except that the public shall be granted access to the following information:"; added Paragraphs I(1) to I(4); added Subsection J and redesignated the following subsections accordingly.
The 1993 amendment, effective July 1, 1993, in Subsection A inserted "name and" in Paragraph (5) and substituted "alleged incapacitated person" for "person for whom the guardian is sought to be appointed" in Paragraphs (6) and (7); in Subsection C, inserted "of his own choice" in the second sentence and substituted the third sentence for two sentences which read "The attorney in the proceedings shall have the duties of a guardian ad litem. Such attorney shall visit the alleged incapacitated person prior to the hearing"; in Subsection D, substituted "report" for "evaluation" twice in the introductory paragraph and rewrote Paragraph (2); rewrote Subsection E; deleted former Paragraph (1) in Subsection F which read "it is impossible for the alleged incapacitated person to be present at the hearing; or"; and made minor stylistic changes throughout the section.
Strict accordance with statutory proceedings required. — Proceedings to adjudicate a person incompetent, insane or so mentally ill as to require hospitalization must be in strict accordance with the statutory requirements and proceedings. If the required procedure is not followed in material respects, the proceedings are void and of no effect. Blevins v. Cook, 1960-NMSC-008, 66 N.M. 381, 348 P.2d 742 (decided under former law).
Substantial compliance found. — A failure to strictly comply with the requirements of the guardianship statutes did not deprive the trial court of jurisdiction since the trial court took the utmost care at trial to ensure that the purposes of the guardianship statutes were substantially complied with by the parties. In re Pulver, 1994-NMCA-024, 117 N.M. 329, 871 P.2d 985.
Adequate notice of proceedings. — Where relative of a person who was alleged to be incompetent was not served with a pleading making the relative a party to the guardianship proceedings; relative was mailed a copy of the petition and notice of hearing; relative was not given notice of a change of the hearing date or of any other action in the proceeding; and there was no evidence that relative did not understand that relative could seek to participate in the proceedings, the notice to the relative was adequate. In re Strozzi, 1991-NMCA-057, 112 N.M. 270, 814 P.2d 138.
Appointment of medical professional. — Where the trial court did not on its own initiative appoint a qualified health care professional, but heard testimony about the medical and mental status from a qualified professional registered nurse who cared for the incapacitated person on a daily basis, there was substantial compliance. In re Pulver, 1994-NMCA-024, 117 N.M. 329, 871 P.2d 985.
Reports of medical evaluations. — The evaluations, together with the testimony of the nurse and the testimony of the psychologist, all of which unqualifiedly supported the appointment of a guardian and conservator, fulfilled the statutory intent, even though not all of it was written. In re Pulver, 1994-NMCA-024, 117 N.M. 329, 871 P.2d 985.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Constitutionality of statute making physical disability ground for appointment of guardian of person or property, 30 A.L.R. 1381.
Mental condition which will justify the appointment of guardian, committee or conservator of the estate for an incompetent or spendthrift, 9 A.L.R.3d 774.
Priority and preference in appointment of conservator or guardian for an incompetent, 65 A.L.R.3d 991.
Validity of guardianship proceeding based on brainwashing of subject by religious, political or social organization, 44 A.L.R.4th 1207.
14 C.J.S. Chemical Dependents § 4; 49 C.J.S. Insane Persons §§ 37, 40.
