Disclaimer

• The information contained in this presentation is general in nature and is not designed to give legal advice. The AOC does not guarantee the legal sufficiency of this information guide or that it meets your specific needs. For specific legal inquiries, you may wish to seek the advice and assistance of an attorney.

Patricia M. Galindo, JD Administrative Office of the Courts

Focus of Presentation

• Statutes (Law)

• Court Process

In order to be able to recommend changes to a

process, you must know the subject matter and understand the law.

Uniform Probate Code

• New Mexico Statutes Section 45

• Article 5 – Protections of Persons Under Disability and Their Property

Part 3 - Guardians of Incapacitated Person Part 4 - Protection of Property of Persons Under Disability and Minors

Guardian and Conservator

GUARDIAN NMSA §45-5-301,et seq

Guardian of

Incapacitated Person

CONSERVATOR NMSA §45-5-401,et seq Protection of Property

of Persons under Disability

What is the difference between a Guardian and a Conservator?

GUARDIAN Makes personal and healthcare decisions for another adult

– Medical appointments

– Medical decisions – Living arrangements

CONSERVATOR Manages financial affairs of another adult.

– Checking accounts – Investments – Selling of real estate

A court may appoint: a guardian and a conservator only a guardian only a conservator

Although a case may be called a Guardianship case, it may actually involve both guardians and conservators.

Variations of a Guardianship Case

Different Types of Guardianship Kinship Guardianship

• Parenting of minor children by a family member, relative or friend of the family Treatment Guardian

• Mental health cases to make decisions on medications and/or treatment.

Adult Guardianship • Incapacitated adult that

requires assistance in managing personal and/or financial affairs.

Guardian of Minor • Insurance Settlements • Deceased Parents • Inheritance

Adult Guardianship

• Focus of today’s presentation is on Adult Guardianship cases, under the Uniform Probate Code. NMSA 1978 Chapter 45, Article 5, Parts 1, 3 and 4.

What are individuals in a Guardianship case called?

• The adult whose legal capacity is in question is called an “alleged incapacitated person” or “AIP”.

• Once a court makes a legal finding that a person lacks legal capacity, they are referred to as an “incapacitated person” or “protected person”.

Outdated Term to Refer to an Individual Under Guardianship

• “Ward” is an outdated term that is no longer used in New Mexico statutes (since 2009).

When Guardianship Is To Be Used

• as is necessary to promote and to protect the well being of the person;

• designed to encourage the development of maximum self reliance and independence of the person; and

• shall be ordered only to the extent necessitated by the person's actual functional mental and physical limitations.

“Incapacitated Person”

Individual who demonstrates over time

•either partial or complete functional impairment

Functional Impairment

Means an impairment that is measured by a person’s inability to mange the person’s personal care or the person’s inability to manage the person’s estate or financial affairs or both.

“Incapacitated Person” cont.

by reason of • mental illness, • mental deficiency, • physical illness or disability, • chronic use of drugs, • chronic intoxication or • other cause

“Incapacitated Person” cont.

to the extent that the person is unable to manage the person’s personal affairs or the person is unable to manage the person’s estate or financial affairs or both

Appointing a Guardian The court shall: (1) inquire into the nature and extent of

the functional limitations of the alleged incapacitated person; and

(2) ascertain the alleged incapacitated person’s capacity to care for the alleged incapacitated person’s own self.

Court May Dismiss Petition

• If it is determined that the alleged incapacitated person possesses the capacity to care for the alleged incapacitated person’s own self, the court shall dismiss the petition.

Full or Limited Guardian

The court may appoint a full guardian or a limited guardian and confer specific powers

Findings on the Record

• Court must conduct hearing.

• Findings based on clear and convincing evidence.

Judicial Findings

• The person for whom a guardianship is sought is totally incapacitated or is incapacitated only in specific areas as alleged in the petition;

Judicial Findings (cont.)

• The guardianship is necessary as a means of providing continuing care, supervision and rehabilitation of the incapacitated person;

Judicial Findings (cont.)

• There are no available alternative resources that are suitable with respect to the alleged incapacitated person’s welfare, safety and rehabilitation;

Judicial Findings (cont.)

• The guardianship is appropriate as the least restrictive form of intervention consistent with the preservation of the civil rights and liberties of the alleged incapacitated person; and

• The proposed guardian is both qualified and suitable and is willing to serve.

Appointment of a Conservator

Can be made if the court finds • that the person has property that may be

wasted or dissipated unless proper management is provided;

• that funds are needed for the support, care and welfare of the person;

Appointment of a Conservator

Continued . . . . • that protection is necessary or desirable to

obtain or provide funds; and • that the person is incapacitated.

Legal and Civil Rights

• An incapacitated person for whom a guardian has been appointed retains all legal and civil rights except those which have been expressly limited by court order or have been specifically granted to the guardian by the court.

Rights Retained

• Examples: – right to marry – right to vote – right to practice religion of own choosing – right to receive visitors and

communicate with others – right to privacy

Common Scenarios In Adult Guardianship Cases

Adult Child with Disabilities • Once a person turns 18 years old, the law

considers them to be an adult. • Parents may no longer have access to

medical records or be able to apply for benefits.

Traumatic Brain Injury or Other Brain Damage

• Adult with severe brain damage from an accident or from long-term drug or alcohol abuse.

Cognitive Impairment

• Adult with cognitive issues. Prognosis that the condition will continue to get worse.

How Does a Guardianship Case Begin?

FIRST STEP IN A GUARDIANSHIP CASE

Filing A Petition

• Guardianship case begins when a petition is filed in court.

• Guardianship cases are handled by District Courts in New Mexico.

• Venue – where an alleged incapacitated person resides or is present.

• Thirteen different judicial district courts in New Mexico.

Statutes -Petition

• Procedure for court appointment of a guardian - see NMSA 1978 §45-5-303(A)

• Petition for appointment of a conservator

see NMSA 1978 §45-5-404(A) and (B)

SECOND STEP IN A GUARDIANSHIP CASE

Court Process

Judicial Reviews

• Court reviews the Petition filed with the court.

Statutory Requirements

• Statutory requirements for contents of petition.

Guardianship Petition

• Petition shall state: – Name, DOB, Address of AIP; – Nature of alleged incapacity as it relates

to the functional limitations and physical and mental condition of the alleged incapacitated person;

– Reason why guardianship requested;

Guardianship Petition cont.

• If limited guardianship is sought – what are the limitations?

• Whether a guardian has been appointed – including in another state

• Efforts made – due diligence – to locate another court-appointed guardian, agent or surrogate designated by AIP;

Guardianship Petition cont.

• Name and address of proposed guardian; • Name and address of 2 persons able to

contact the proposed guardian if address or phone of the proposed guardian changes;

• Names and address of persons most closely related by blood or marriage to the alleged incapacitated person;

Guardianship Petition cont.

• Name and address of institution having the care and custody of the AIP;

• Number of other protected persons served by the proposed guardian, the other protected person’s relationships to the proposed guardian and the types of guardianship held if the propose guardian is an individual;

Guardianship Petition cont.

• Reasons the appointment of a guardian is sought and interest of the petitioner in the appointment;

• Steps taken to find less restrictive alternatives to the proposed guardianship; and

• Qualifications of the proposed guardian, including whether ever convicted of a felony.

THIRD STEP IN A GUARDIANSHIP CASE

Professionals Required to be Appointed in Guardianship Case

New Mexico statute (law) requires the appointment of 3 professionals to assist the judge in determining functional limitation and capacity:

• Guardian ad Litem • Qualified Healthcare Professional • Court Visitor

GUARDIAN AD LITEM

Statutory Requirements

The guardian ad litem shall: (1) interview in person the alleged incapacitated person prior to the hearing; (2) present the alleged incapacitated person's declared position to the court;

Guardian ad Litem (cont.)

(3) interview the qualified health care professional, the visitor and the proposed guardian; (4) review both the medical report submitted by the qualified healthcare professional and the report by the visitor; and (5) obtain independent medical or psychological assessments, or both, if necessary.

Guardian ad Litem

• Licensed attorney. • Appointed by the court to represent and

protect the best interests of incapacitated person.

• Must present the incapacitated person’s declared position to the court.

• Provides court with professional opinion of best interest for the incapacitated person.

QUALIFIED HEALTH CARE PROFESSIONAL

Qualified Health Care Professional

• Must submit a written report to court – Describe the nature and degree of

person’s incapacity • Level of intellectual, development and

social functioning – Observations regarding the ability of the

person to make health care decisions, manage activities of daily living or manage financial affairs.

Who Can Serve as a Qualified Health Care Professional?

• Physician; • Psychologist, • Physician Assistant; • Nurse Practitioner; or • Other health care practitioner whose

training and expertise aid in the assessment of functional impairment.

COURT VISITOR

Court Visitor

• Shall interview the person seeking appointment as guardian and the person alleged to be incapacitated.

• Shall visit the present place of residence of the person alleged to be incapacitated and the place where it is proposed the person will reside.

• Shall evaluate the needs of the AIP and submit a written report to the court.

Court Visitor Report The report by the court visitor shall include:

(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.

Activities of Daily Living • Routine activities that people tend do every

day without needing assistance. • Six basic Activities of Daily Living:

– eating; – bathing; – dressing; – toileting; – transferring (walking); and – continence.

Definition of “Visitor”

• A person who is an appointee of the court; • Has no personal interest in the

proceeding; and • Has been trained or has expertise to

appropriately evaluate the needs of the person who is alleged to be incapacitated.

Who Can Serve as a Court Visitor?

• May include, but is not limited to: – Psychologist – Social worker – Developmental incapacity professional – Physical or occupational therapist – Educator – Rehabilitation worker

How Professionals Assist in a Guardianship Case

• Professionals have a specific area of expertise and role in evaluating the needs of the alleged incapacitated person.

• Professionals provide written reports and opinions on the best interest of the alleged incapacitated person.

FOURTH STEP IN A GUARDIANSHIP CASE e

Court Hearing

• Legal Presumption of Capacity NMSA 1978 §45-5-303(H) & §45-5-303(H) • Burden of proof on the Petitioner to prove

allegations in Petition. • Rules of evidence apply

– No hearsay – Clear and convincing evidence

Closed Hearing

• The issue of whether a guardian or conservator shall be appointed for the alleged incapacitated person shall be determined by the court at a closed hearing unless the alleged incapacitated person requests otherwise.

Jury Trial

Upon request of the petitioner or alleged incapacitated person, the court shall schedule a jury trial.

Presence at Hearing

• Person alleged to be incapacitated shall be present at the hearing unless the court determines it is not in the alleged incapacitate person’s best interest to be present because of a threat to the health or safety of the alleged incapacitate person.

Confidentiality

“Records, reports and evidence submitted to the court shall be confidential.” NMSA 1978 §45-5-303(I) and § 45-5-407(M)

Records Available to the Public

1. Docket entries; 2. Date of the proceeding, appointment and termination; 3. Duration of guardianship/conservatorship; 4. Whether limited or full guardianship and nature limitations, if any; 5. Name and other information necessary to identify the alleged incapacitate person.

No Authority to Release

• Statute does not allow the release of: – any pleadings (documents filed with

court), – any other court records, – reports of professionals, – or any other information (documents)

regarding the guardianship case.

Statutory Limits

• Any disclosure of information shall not include: – any diagnostic information, – treatment information, or – other medical or psychological

information.

Statutory Safeguards

• Notice Requirement – Guardian NMSA 1978 § 45-5-309 – Conservator NMSA 1978 § 45-5-309

Notice Requirements

• Notice of hearing and petition and any interim orders shall be given to: – Person alleged to be incapacitated; – Person’s spouse, parents and adult

children; • If no adult children, at least one of the

person’s closest adult relatives, if can be found.

Notice Requirements (cont.)

• The proposed guardian;

• Person designated in a writing by the incapacitated person prior to incapacity that has not been revoked or terminated by the court.

Person Designated in a Writing

• Including: • Uniform Health-Care Decisions Act, • Mental Health Care Treatment

Decisions Act, • Uniform Power of Attorney Act, • Uniform Probate Code (WILL), • Uniform Trust Code (TRUST).

FIFTH STEP IN A GUARDIANSHIP CASE

Who Can Be Appointed Guardian?

• Any person deemed to be qualified by the court may be appointed guardian of an incapacitated person.

Not Qualified for Appointment

• No individual who operates or is an employee of a boarding home, residential care home, nursing home, group home or other similar facility in which the incapacitated person resides may serve as a guardian, except an employee may serve . . . when related by affinity or consanguinity.

Priority for Appointment

1. Guardian or other like fiduciary appointed by the appropriate court of any jurisdiction; 2. Person previously nominated or designated in writing to serve as guardian or agent in a writing signed by the incapacitated person prior to the incapacitated person’s incapacity that has not been revoked by the IP or terminated by the court.

Priority for Appointment

3. Spouse of the incapacitated person; 4. Adult Child of the incapacitated person; 5. Parent of the incapacitated person; 6. Any relative of the incapacitated person

with whom the incapacitated person has resided for more than 6 months prior to the filing of the petition;

Priority for Appointment

7. Person nominated by the person who is caring for the incapacitated person or paying benefits to the incapacitated person; and 8. Any other person.

Equal Priority

• With respect to persons having equal priority, the court shall select the person it considers best qualified to serve as guardian.

Appointing Person with Lower Priority

• The court, acting in the best interest of the incapacitated person and for good cause shown, may pass over a person having priority and appoint a person having a lower priority and shall take into consideration:

Appointing Person with Lower Priority (cont.)

1. The preference of the incapacitated person, giving weight to preferences expressed in writing by the person while having capacity; 2. Geographic location of the proposed guardian; 3. Relationship of the proposed guardian to the incapacitated person;

Appointing Person with Lower Priority (cont.)

4. The ability of the proposed guardian to carry out the power and duties of the guardianship; and

5. Potential financial conflicts of interest between the incapacitated person and proposed guardian.

Consent Not Allowed

• An alleged incapacitated person shall not be permitted by the court to consent to the appointment of a guardian.

• All the procedural safeguards contained in Chapter 45, Article 5 NMSA 1978 pursuant to appointment of a guardian . . . shall apply in every guardianship proceeding.

REMEDIES AVAILABLE AFTER THE APPOINTMENT OF A

GUARDIAN AND/OR A CONSERVATOR

Remedies Available After Appointment of a Guardian

• Statutes provide for various options for substitution, review and termination of a guardianship.

• “Interested Parties” can contact the court.

Appointing Another Guardian

NMSA 1978 § 45-5-307(A): • “On the petition of the incapacitated

person or any person interested in the incapacitated person’s welfare . . . the court may remove a guardian and appoint a successor if it is in the best interest of the incapacitated person”.

NMSA 1978 §45-5-307(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.

Similar Statutes for Conservator

• NMSA 1978 § 45-5-415(A) removal of a conservator for good cause;

• NMSA 1978 § 45-5-415(C) no longer need for conservator;

• NMSA 1978 § 45-5-415(D) petition to terminate conservatorship.

Other Petitions - Conservator

NMSA 1978 § 45-5-416(A): “Any person interested in the welfare of a person for whom a conservator has been appointed may file a petition in the appointing court for an order:

NMSA 1978 § 45-5-416(A) cont.

(1) Requiring bond; (2) Requiring an accounting for the administration of the estate; (3) Directing distributions; (4) Removing the conservator and

appointing a temporary or successor conservator; or

(5) Granting other appropriate relief.

The information contained in this presentation is general in nature and is not designed to give legal advice. The AOC does not guarantee the legal sufficiency of this information guide or that it meets your specific needs. For specific legal inquiries, you may wish to seek the advice and assistance of an attorney.