In the state of New Mexico, a judge may occasionally appoint a person, company or organization to act as a guardian for someone in cases where it can be proven that the individual is no longer able to make effective decisions or handle their living arrangements, finances or healthcare needs [1]. Guardianship in New Mexico is a vital legal mechanism that ensures the wellbeing and protection of individuals who lack the capability to make decisions for themselves. We are very lucky that the law in our state protects and safeguards the rights of its residents.
Here is a closer look at what guardianship is, how it works and the responsibilities assumed by those in a guardianship role.
Who needs a guardian?
Generally, a guardian may be court-appointed for any individual who is unable to take care of their own basic needs. This can include minors or incapacitated adults. These adults may be temporarily incapacitated due to complex medical needs or a temporary lapse in health, or it may be permanent due to age, disabilities or other circumstances. Minors can have guardians appointed as well but doing so is typically a distinct process from appointing guardians for incapacitated adults.
What does a guardian do?
There are many different types of guardianship, and each one caters to the different needs of a particular individual. The four most common types of guardianship are:
1. Guardianship of unprotected minors: In the state of New Mexico, a minor’s legal guardians are defaulted to their legal parents. Where both parents are deceased, cannot be located, are incapacitated or unable to provide the child with the care they need, however, a court may order that parental responsibilities are to be transferred to a different adult who will assume the parental role on either a temporary or permanent basis [2].
This person then becomes responsible for the care and upbringing of that child. They will assume responsibility and accountability for ensuring that the child receives the healthcare, education and emotional support they need to thrive, essentially stepping foot into the role of parent for the child. This is called Kinship Guardianship in New Mexico.
2. Guardianship of incapacitated adults: In cases where an adult is unable to meet their own basic needs due to age, deteriorating health or lack of mental ability, a court will assign either a guardian who will be responsible for managing that individual’s needs. If the person’s needs are financial in nature, a conservator may also be appointed.
A conservator’s role is to help manage the individual’s finances, investments and assets. These two roles are different but will be tailored to meet the particular needs of the individual they are appointed to protect.
3. Limited guardianship: In cases where an individual can meet some of their health and housing needs but not every element of their own personal care, a court may assign a limited guardian with specific powers and restrictions in place to allow the protected individual to care for themselves within the bounds of their capabilities where necessary.
4. Guardian ad Litem: a guardian ad litem is a person appointed to represent an individual’s interests in Court. Guardian ad litems are typically attorneys and are most often appointed to represent that interests of children in Court, but are also appointed to represent the interests of disabled or incapacitated people as well. This is a somewhat unique process with limited roles and not a type of guardianship that can be pursued by individuals over their loved ones.
How is a guardian appointed?
The individual who wants to assume guardianship of another individual needs to file a petition with the court in which they must provide evidence of the individual’s need for protection and highlight why they believe they are a suitable guardian for that person. The process differs greatly depending on the type of guardianship, the person who needs a guardian and the reason for seeking a guardianship.
The court will consider the application and the evidence provided when making a decision. The decision will always be made by prioritizing the best interests of the individual.
Should a guardian be appointed, they will assume specific responsibilities as detailed by the court and must always act ethically. They are legally obligated to deliver the required care and to prioritize their charge’s interests.
How can guardianship be terminated?
This again varies greatly depending on the specific guardianship and circumstances. However, generally speaking: where the need for guardianship no longer exists, a guardianship will generally be terminated.
To ensure that the individual’s rights are protected and guardianship is attained and properly managed, it is recommended that the person seeking to be appointed guardian obtain legal support from an appropriately experienced attorney who focuses on family law in Albuquerque (https://kufferlaw.com/).
Guardianship is an effective mechanism for safeguarding vulnerable individuals in Albuquerque. To discuss your particular circumstances or get support navigating this complex area of the law, please contact The Law Office of Dorene A. Kuffer today.
Resources:
[1] https://adultguardianship.nmcourts.gov/#:~:text=An%20adult%20is%20placed%20under,needs%2C%20medical%20appointments%20and%20housing.
[2] https://law.justia.com/codes/new-mexico/2021/chapter-45/article-5/part-2/section-45-5-209/