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 45-5-309 - Notices in guardianship proceedings.
A. On filing of a petition under Section 45-5-303 NMSA 1978 for appointment of a guardian for an alleged incapacitated person, the court shall set a date, time and place for hearing the petition.
B. A copy of a petition under Section 45-5-303 NMSA 1978 and notice of a hearing on the petition shall be served personally on the alleged incapacitated person. The notice shall inform the alleged incapacitated person of the alleged incapacitated person's rights at the hearing and the right to attend the hearing. The notice shall include a description of the nature, purpose and consequences of granting the petition. The court shall not grant the petition if notice substantially complying with this subsection is not served on the alleged incapacitated person.
C. In a proceeding on a petition under Section 45-5-303 NMSA 1978, the notice required under Subsection B of this section shall be given to the persons required to be listed in the petition under Section 45-5-303 NMSA 1978 and any other person interested in the alleged incapacitated person's welfare that the court determines. Failure to give notice under this subsection does not preclude the court from appointing a guardian.
D. After the appointment of a guardian, notice of a hearing on a petition for any order under Part 3 of Chapter 45, Article 5 NMSA 1978, together with a copy of the petition, shall be given to:
(1) the protected person subject to guardianship;
(2) the guardian; and
(3) any other person the court determines.
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; 2018, ch. 10, § 5.
ANNOTATIONSThe 2018 amendment, effective July 1, 2018, rewrote the notice procedures in guardianship proceedings; deleted former Subsections A through C; and added new Subsections A through D.
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.
The 2009 amendment, effective June 19, 2009, added Paragraphs (3) and (4) of Subsection A.
The 1993 amendment, effective July 1, 1993, deleted "waiver" following "proceedings" and "guardian ad litem" at the end of the section heading; in Subsection A, inserted "if there are no adult children" in Paragraph (2), deleted former Paragraph (3) which read "any person who is serving as his guardian or conservator or who has primary responsibility for his care and custody" and added the final paragraph of Subsection A; in Subsection B, deleted "and parents" following "spouse" in the first sentence and substituted "Notice to an out-of-state spouse, the parents" for "Notice to the spouse, and parents if they cannot be found within New Mexico" at the beginning of the second sentence; substituted "shall" for "should" in the first and second sentences in Subsection C; and made minor stylistic changes throughout the section.
The 1989 amendment, effective June 16, 1989, in Subsection A, inserted "and a copy of the petition and any interim orders which may have been entered" in the introductory paragraph, and deleted "the ward or" at the beginning of Paragraph (1); in Subsection B substituted "45-1-401 NMSA 1978" for "1-401" in the second sentence; substituted Subsection C for former provisions, which read "Waiver of notice by the person alleged to be incapacitated is not effective unless he attends the hearing or his waiver of notice is confirmed in an interview with the visitor"; and deleted former Subsection D, which read "Representation of the alleged incapacitated person by a guardian ad litem is not necessary".
Alternative methods of service. — Where the incapacitated person cannot see or read, service on his attorney would suffice, particularly when the attorney requested the hearing, insured the party's attendance and participation, and vigorously contested the petition. Indeed, it would appear quite pointless to reverse the case on grounds of lack of notice. 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. — 14 C.J.S. Chemical Dependents § 4; 49 C.J.S. Insane Persons §§ 40, 47.
