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Laws - Protection of Person Under Disability and Their Property

 Chapter 45, Uniform Probate Code, Article 5, Protection of Person Under Disability and Their Property

 45-5-101. Definitions and use of terms.

Unless otherwise apparent from the context, in Chapter 45,Article 5 NMSA 1978:

  • "conservator" is as defined in Section 45-1-201 NMSA 1978;
  • "court", for purposes of Sections 45-5-101 through 45-5-502 NMSA 1978, means the district court or the children's or family division of the district court where such jurisdiction is conferred by the Children's Code [Chapter 32A NMSA 1978];
  • "functional impairment" means an impairment that is measured by a person's inability to manage his personal care or the person's inability to manage his estate or financial affairs or both;
  • "guardian" is as defined in Section 45-1-201 NMSA 1978;
  • "guardian ad litem" is as defined in Section 45-1-201 NMSA 1978;
  • "incapacitated person" means any person who demonstrates over time either partial or complete functional impairment by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that he is unable to manage his personal affairs or he is unable to manage his estate or financial affairs or both;
  • "inability to manage his personal care" means the inability, as evidenced by recent behavior, to meet one's needs for medical care, nutrition, clothing, shelter, hygiene or safety so that physical injury, illness or disease has occurred or is likely to occur in the near future;
  • "inability to manage his estate or financial affairs or both" means gross mismanagement, as evidenced by recent behavior, of one's income and resources or medical inability to manage one's income and resources that has led or is likely in the near future to lead to financial vulnerability;
  • "interested person" means any person who has an interest in the welfare of the person to be protected under this article;
  • "least restrictive form of intervention" means that the guardianship or conservatorship imposed on the incapacitated person or minor ward represents only those limitations necessary to provide the needed care and rehabilitative services, and that the incapacitated person or minor ward shall enjoy the greatest amount of personal freedom and civil liberties;
  • "letters" is as defined in Section 45-1-201 NMSA 1978;
  • "limited conservator" means any person who is qualified to manage the estate and financial affairs of an incapacitated person pursuant to a court appointment in a limited conservatorship;
  • "limited conservatorship" means that an incapacitated person is subject to a conservator's exercise of some, but not all, of the powers enumerated in Sections 45-5-424 and 45-5-425 NMSA 1978;
  • "limited guardian" means any person who is qualified to manage the care, custody and control of an incapacitated person pursuant to a court appointment of a limited guardianship;
  • "limited guardianship" means that an incapacitated person is subject to a guardian's exercise of some but not all of the powers enumerated in Section 45-5-312 NMSA 1978;
  • "minor" is as defined in Section 45-1-201 NMSA 1978;
  • "minor ward" means a minor for whom a guardian or conservator has been appointed solely because of minority;
  • "protective proceeding" means a conservatorship proceeding under Section 45-5-401 NMSA 1978;
  • "protected person" means a minor or other person for whom a conservator has been appointed or other protective order has been made;
  • "qualified health care professional" means a physician, psychologist, nurse practitioner or other health care practitioner whose training and expertise aid in the assessment of functional impairment;
  • "ward" means a person for whom a guardian has been appointed; and
  • "visitor" means a person who is an appointee of the court who has no personal interest in the proceeding and who has been trained or has the expertise to appropriately evaluate the needs of the person who is allegedly incapacitated. A "visitor" may include, but is not limited to, a psychologist, social worker, developmental incapacity professional, physical and occupational therapist, an educator and a rehabilitation worker.

 45-5-102. Jurisdiction of subject matter; consolidation of proceedings.

  • The court has exclusive jurisdiction over protective proceedings and guardianship proceedings.
  • When both guardianship and protective proceedings as to the same person are commenced or pending in the same court, the proceedings may be consolidated.

 45-5-301. Appointment of guardian for incapacitated person; notice.

  • The parent of an unmarried incapacitated person may appoint by will, or other writing signed by the parent and attested by at least two witnesses, a guardian of the incapacitated person. If both parents are dead or incapacitated or the surviving parent has no parental rights or has been adjudged incapacitated, appointment becomes effective when, after having given seven days' prior written notice of intention to do so to the incapacitated person and to the person having care of the incapacitated person or to the nearest adult relative, the guardian files acceptance of appointment in the court in which the will is probated, or in the case of a non-testamentary instrument, in the court at the place where the incapacitated person resides or is present. The notice shall state that the appointment may be terminated by filing a written objection in the court, as provided in Subsection D of this section. If both parents are dead, an effective appointment by the parent who died later has priority.
  • The spouse of a married incapacitated person may appoint by will, or other writing signed by the spouse and attested by at least two witnesses, a guardian of the incapacitated person. The appointment becomes effective when, after having given seven days' prior written notice of intention to do so to the incapacitated person and to the person having his care or to his nearest adult relative, the guardian files acceptance of appointment in the court in which the will is probated or, in the case of a non-testamentary nominating instrument, in the court at the place where the incapacitated person resides or is present. The notice shall state that the appointment may be terminated by filing a written objection in the court, as provided in Subsection D of this section. An effective appointment by a spouse has priority over an appointment by a parent.
  • An appointment effected by filing the guardian's acceptance under a will probated in the state of testator's domicile is effective in New Mexico.
  • On the filing in the court in which the will was probated or, in the case of a non-testamentary nominating instrument, in the court at the place where the incapacitated person resides or is present, of written objection to the appointment by the incapacitated person for whom a parental or spousal appointment of guardian has been made, the appointment is terminated. An objection does not prevent appointment by the court in a proper proceeding of the parental or spousal nominee or any other suitable person upon an adjudication of incapacity in proceedings under Sections 45-5-301.1 through 45-5-315 NMSA 1978.

 45-5-301.1. When guardianship is to be used.

Guardianship for an incapacitated person shall be used only as is necessary to promote and to protect the well being of the person, shall be 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. 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.

 45-5-301.2. Foreign guardian; proof of authority; bond; powers.

If no local guardian has been appointed or no petition therefore is pending in New Mexico, a foreign guardian may file with the district court in the county in which the incapacitated person resides authenticated copies of his appointment and of any official bond he has given and a statement of his address and telephone number. Thereafter, he may exercise in New Mexico all powers and shall have the duties of a local guardian and may maintain actions and proceedings in New Mexico subject to any conditions imposed upon nonresident parties generally.

 45-5-302. Venue.

Venue for guardianship proceedings for an alleged incapacitated person is in the judicial district where the alleged incapacitated person resides or is present. If the alleged incapacitated person is admitted to an institution pursuant to order of a court of competent jurisdiction, venue is also in the judicial district in which that court sits.

 45-5-303. Procedure for court appointment of a guardian of an incapacitated person.

  • Any interested person may file a petition for the appointment of a person to serve as guardian for an alleged incapacitated person under the Uniform Probate Code [45-1-101 NMSA 1978]. The petition shall state the following:
    • the name, age and address of the alleged incapacitated person for whom the guardian is sought to be appointed;
    • the nature of the alleged incapacity as it relates to the functional limitations and physical and mental condition of the alleged incapacitated person and the reasons why guardianship is being requested;
    • if a limited guardianship is sought, the particular limitations requested;
    • whether a guardian has been appointed or is acting in any state for the alleged incapacitated person;
    • the name and address of the proposed guardian;
    • the names and addresses, as far as known or as can reasonably be ascertained, of the persons most closely related by blood or marriage to the alleged incapacitated person;
    • the name and address of the person or institution having the care and custody of the alleged incapacitated person;
    • the names and addresses of any other incapacitated persons for whom the proposed guardian is acting if the proposed guardian is an individual;
    • the reasons the appointment of a guardian is sought and the interest of the petitioner in the appointment;
    • the steps taken to find less restrictive alternatives to the proposed guardianship; and
    • the qualifications of the proposed guardian.
  • 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.
  • 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 his own choice, the court shall appoint an attorney to represent him. 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.
  • 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:
    • describe the nature and degree of the alleged incapacitated person's incapacity, if any, and the level of the respondent's intellectual, developmental and social functioning; and
    • contain observations, with supporting data, regarding the alleged incapacitated person's ability to make health care decisions and manage the activities of daily living.
  • The court shall also 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 he 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:
    • those aspects of his personal care that the alleged incapacitated person can manage without supervision or assistance;
    • those aspects of his personal care that the alleged incapacitated person could manage with the supervision or assistance of support services and benefits; and
    • those aspects of his 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 his duties upon entry of the order appointing the guardian and acceptance of the appointment by the guardian.
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.

  • 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.
  • 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.
  • A record of the proceedings shall be made if requested by the alleged incapacitated person or his attorney or when ordered by the court. Records, reports and evidence submitted to the court or recorded by the court shall be confidential, except that the public shall be granted access to the following information:
    • docket entries;
    • date of the proceeding, appointment and termination;
    • duration of the guardianship; and
    • the name and other information necessary to identify the alleged incapacitated person.
  • Notwithstanding the provisions of Subsection I of this section, any disclosure of information shall not include any diagnostic information, treatment information or other medical or psychological information.
  • The issue of whether a guardian 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.
  • Upon request of the petitioner or alleged incapacitated person, the court shall schedule a jury trial.

 45-5-304. Findings; order of appointment.

  • The court, at the hearing on the petition for appointment for a guardian under this chapter, shall:
    • inquire into the nature and extent of the functional limitations of the alleged incapacitated person; and
    • ascertain his capacity to care for himself.
  • If it is determined that the alleged incapacitated person possesses the capacity to care for himself, the court shall dismiss the petition.
  • Alternatively, the court may appoint a full guardian as requested in the petition or a limited guardian and confer specific powers of guardianship after finding in the record based on clear and convincing evidence that:
    • the person for whom a guardian is sought is totally incapacitated or is incapacitated only in specific areas as alleged in the petition;
    • the guardianship is necessary as a means of providing continuing care, supervision and rehabilitation of the incapacitated person;
    • there are no available alternative resources that are suitable with respect to the alleged incapacitated person's welfare, safety and rehabilitation;
    • 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.
  • The court may enter any other appropriate order consistent with the findings of this section.
  • A copy of the order appointing the guardian shall be furnished to the incapacitated person and his counsel.
  • The order shall contain the name and address of the guardian as well as notice of the incapacitated person's right to appeal the guardianship appointment and of his right to seek alteration or termination of the guardianship at any time.

 45-5-305. Acceptance of appointment; consent to jurisdiction.

By accepting a testamentary or court appointment as guardian, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person. Notice of any proceeding shall be delivered to the guardian or mailed to him at his address as listed in the court records and to his address as then known to the petitioner.

 45-5-306. Termination of guardianship for incapacitated person.

The authority and responsibility of a guardian for an incapacitated person terminates upon the death of the guardian or ward, the determination of incapacity of the guardian, or upon removal or resignation as provided in Section 5-307 [45-5-307 NMSA 1978]. Testamentary appointment under an informally probated will terminates if the will is later denied probate in a formal proceeding. Termination does not affect his liability for prior acts nor his obligation to account for funds and assets of his ward.

 45-5-307. Death, removal or resignation of guardian; termination of guardianship.

  • On the petition of the incapacitated person or any person interested in his welfare and upon notice and hearing, the court may remove a guardian and appoint a successor if it is in the best interest of the incapacitated person.
  • Upon death, removal or resignation of a guardian, the court may appoint another guardian or make any other order that may be appropriate. If a successor guardian is appointed, he succeeds to the title and powers of his predecessor.
  • The incapacitated person or any person interested in his welfare may petition for an order that he 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. Any person who knowingly interferes with transmission of this kind of request to the court may be adjudged guilty of contempt of court.
  • Unless waived by the court upon the filing of a petition to terminate a guardianship for reasons other than the death of the incapacitated person, the court shall follow the same procedures to safeguard the rights of the incapacitated person as those that apply to a petition for appointment of a guardian, as set forth in Section 45-3-303 NMSA 1978.

 45-5-308. Letters of guardianship.

Letters of guardianship shall contain:

  • the names, addresses and telephone numbers of the guardian;
  • the name, address and telephone number of the incapacitated person; and
  • the scope of the guardianship including the specific legal limitations imposed by the court on the powers of the guardian.

 45-5-309. Notices in guardianship proceedings.

  • In a proceeding for the appointment or removal of a guardian of an incapacitated person, other than the appointment of a temporary guardian or temporary suspension of a guardian, notice of hearing and a copy of the petition and any interim orders that may have been entered shall be given to each of the following:
    • the person alleged to be incapacitated; and
    • his spouse, parents and adult children, or if there are no adult children, at least one of his closest adult relatives if any can be found.

Notice of hearing shall be given to any person who is serving as the guardian or conservator of the person to be protected or who has primary responsibility for his care.

  • Notice shall be served personally on the alleged incapacitated person and his spouse if they can be found within New Mexico. Notice to an out-of-state spouse, the parents and to all other persons, except the alleged incapacitated person, shall be given as provided in Section 45-1-401 NMSA 1978.
  • At least fourteen days' notice shall be given before the hearing takes place. The notice shall be in plain language and large type and shall include the following information and shall be substantially in the following form:

 NOTICE
TO: (name and address of person receiving notice)

On (date of hearing) at (time of hearing) in (place of hearing) at (city), New Mexico, the (name and address of court) will hold a hearing to determine whether a guardian should be appointed for (name of alleged incapacitated person). The purpose of this proceeding is to protect (name of alleged incapacitated person). A copy of the petition requesting appointment of a guardian is attached to this notice.

At the hearing the court will determine whether (name of alleged incapacitated person) is an incapacitated person under New Mexico law.

If the court finds that (name of alleged incapacitated person) is incapacitated, the court at the hearing shall also consider whether (name of proposed guardian, if any) should be appointed as guardian of (name of alleged incapacitated person). The court may, in its discretion, appoint some other qualified person as guardian. The court may also, in its discretion, limit the powers and duties of the guardian to allow (name of alleged incapacitated person) to retain control over certain activities

(Name of alleged incapacitated person) shall attend the hearing and be represented by an attorney. The petition may be heard and determined in the absence of (name of alleged incapacitated person) if the court determines that the presence of (name of alleged incapacitated person) is not possible. If (name of alleged incapacitated person) attends the hearing and is not represented by an attorney, the court must appoint an attorney to represent the alleged incapacitated person.

The court may, on its own motion or on request of any interested person, postpone the hearing to another date and time.

________________________________
(signature of petitioner)"

 45-5-310. Temporary guardians.

  • When a petition for guardianship has been filed, but adherence to the procedures set out in this section would cause immediate and irreparable harm to the alleged incapacitated person's physical health, the court may appoint a temporary guardian prior to the final hearing and decision on the petition, subject to the requirements of this section.
  • Upon motion of the petitioner, the court shall schedule a hearing on the appointment of a temporary guardian for the earliest possible date, appoint counsel for the alleged incapacitated person and give notice as provided in Section 45-5-309 NMSA 1978. Upon a finding that serious and irreparable harm to the alleged incapacitated person's health would result during the pendency of petition, the court shall appoint a temporary guardian and shall specify the temporary guardian's powers in order to prevent serious and irreparable harm to the alleged incapacitated person. The duration of the temporary guardianship shall not exceed sixty days, except that upon order of the court, the temporary guardianship may be extended for not more than thirty days.
  • A temporary guardian may be appointed without notice to the alleged incapacitated person and his attorney only if it clearly appears from specific facts shown by affidavit or sworn testimony that immediate and irreparable harm will result to the alleged incapacitated person before a hearing on the appointment of a temporary guardian can be held. The alleged incapacitated person shall be notified within twenty-four hours of the appointment of a temporary guardian by the petitioner as provided in Subsection C of Section 45-5-309 NMSA 1978. On two days' notice to the party who obtained the appointment of a temporary guardian without notice, or on such shorter notice to that party as the court may prescribe, the alleged incapacitated person or his counsel may appear and move dissolution or modification of the court's order, and, in that event, the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.
  • A temporary guardian is entitled to the care and custody of the alleged incapacitated person, and the authority of any permanent guardian previously appointed by the court is suspended as to those specific matters granted to the temporary guardian by the court. A temporary guardian may be removed by the court at any time. A temporary guardian shall make any report the court requires. In all other respects, the provisions of the Probate Code [this chapter] concerning guardians apply to temporary guardians.
  • Appointment of a temporary guardian shall have the effect of limiting the legal rights of the individual as specified in the court order. Appointment of a temporary guardian shall not be evidence of incapacity.

 45-5-311. Who may be appointed guardian; priorities.

  • Any person deemed to be qualified by the court may be appointed guardian of an incapacitated person, except that 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 guardian for the incapacitated person, except an employee may serve in such capacity when related by affinity or consanguinity.
  • Persons who are not disqualified have priority for appointment as guardian in the following order:
    • a guardian or other like fiduciary appointed by the appropriate court of any other jurisdiction;
    • any person previously nominated to serve as guardian in a writing signed by the incapacitated person prior to his incapacity;
    • the spouse of the incapacitated person;
    • an adult child of the incapacitated person;
    • a parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent;
    • any relative of the incapacitated person with whom he has resided for more than six months prior to the filing of the petition;
    • a person nominated by the person who is caring for the incapacitated person or paying benefits to him; and
    • any other person.
  • With respect to persons having equal priority, the court shall select the person it considers best qualified to serve as guardian. The court, acting in the best interest of the incapacitated person, may pass over a person having priority and appoint a person having a lower priority under this section and shall take into consideration:
    • the preference of the incapacitated person;
    • the geographic location of the proposed guardian;
    • the relationship of the proposed guardian to the incapacitated person;
    • the ability of the proposed guardian to carry out the powers and duties of the guardianship; and
    • potential financial conflicts of interest between the incapacitated person and proposed guardian.

 45-5-312. General powers and duties of the limited guardian and guardian.

  • If the court enters judgment pursuant to Subsection C of Section 45-5-304 NMSA 1978, it shall appoint a limited guardian if it determines that the incapacitated person is able to manage some but not all aspects of his personal care. The court shall specify those powers that the limited guardian shall have and may further restrict each power so as to permit the incapacitated person to care for himself commensurate with his ability to do so. A person for whom a limited guardian has been appointed retains all legal and civil rights except those that have been specifically granted to the limited guardian by the court. The limited guardian shall exercise his supervisory powers over the incapacitated person in a manner that is the least restrictive form of intervention consistent with the order of the court.
  • A guardian of an incapacitated person has the same powers, rights and duties respecting the incapacitated person that a parent has respecting his unemancipated minor child, except that a guardian is not legally obligated to provide from his own funds for the incapacitated person and is not liable to third persons for acts of the incapacitated person solely by reason of the guardianship. In particular and without qualifying the foregoing, a guardian or his replacement has the following powers and duties, except as modified by order of the court:
    • to the extent that it is consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the incapacitated person, a guardian is entitled to custody of the incapacitated person and may establish the incapacitated person's place of abode within or without New Mexico;
    • if entitled to custody of the incapacitated person, a guardian shall make provision for the care, comfort and maintenance of the incapacitated person and, whenever appropriate, arrange for his training and education. He shall take reasonable care of the incapacitated person's clothing, furniture, vehicles and other personal effects and commence conservatorship proceedings if other property of the incapacitated person is in need of protection;
    • if no agent is entitled to make health-care decisions for the incapacitated person under the provisions of the Uniform Health-Care Decisions Act [24-7A-1 NMSA 1978], then the guardian shall make health-care decisions for the incapacitated person in accordance with the provisions of that act. In exercising health-care powers, a guardian may consent or withhold consent that may be necessary to enable the incapacitated person to receive or refuse medical or other professional care, counsel, treatment or service. That decision shall be made in accordance with the values of the incapacitated person, if known, or the best interests of the incapacitated person if the values are not known;
    • if no conservator for the estate of the incapacitated person has been appointed, the guardian may institute proceedings to compel any person under a duty to support the incapacitated person or to pay sums for the welfare of the incapacitated person; and
    • the guardian shall exercise his supervisory powers over the incapacitated person in a manner that is least restrictive of his personal freedom and consistent with the need for supervision.
  • Any guardian of an incapacitated person for whom a conservator also has been appointed shall control the care and custody of the incapacitated person and is entitled to receive reasonable sums for his services and for room and board furnished to the incapacitated person. The guardian may request the conservator to expend the incapacitated person's estate by payment to third persons or institutions for the incapacitated person's care and maintenance.

 45-5-313. Proceedings subsequent to appointment; venue.

  • The court where the ward resides has concurrent jurisdiction with the court which appointed the guardian, or in which acceptance of a testamentary appointment was filed, over resignation, removal, accounting and other proceedings relating to the guardianship.
  • If the court located where the ward resides is not the court in which acceptance of appointment is filed, the court in which proceedings subsequent to appointment are commenced shall in all appropriate cases notify the other court, in this or another state, and after consultation with that court determine whether to retain jurisdiction or transfer the proceedings to the other court, whichever may be in the best interests of the ward. A copy of any order accepting a resignation or removing a guardian shall be sent to the court in which acceptance of appointment is filed.

 45-5-314. Annual report.

  • The guardian of an incapacitated person shall file an annual report with the appointing court within thirty days of the anniversary date of the guardian's appointment. A copy of the report shall also be submitted to the district judge who appointed the guardian or his successor, to the incapacitated person and to his conservator, if any. The report shall include information concerning the progress and condition of the incapacitated person, including but not limited to his health, medical and dental care, residence, education, employment and habitation; a report on the manner in which the guardian carried out his powers and fulfilled his duties; and the guardian's opinion regarding the continued need for guardianship. The report shall be substantially in the following form:

"IN THE DISTRICT COURT
__________________ COUNTY, STATE OF NEW MEXICO
In the matter of the ) No. ____________
Guardianship of )
________________________________ )
(Enter Name of Incapacitated Person) )
An Incapacitated Person. )

GUARDIAN'S REPORT

Pursuant to Section 45-5-314 NMSA 1978, the undersigned duly appointed, qualified and acting guardian of the above-mentioned incapacitated person reports to the court as follows:

1. My name is: _____________________________________________________________

2. My address and telephone number are: ___________________________________

_____________________________________________________________________________

3. The name, if applicable, and address of the place where the
incapacitated person now resides are: ________________________________________

4. A description of the incapacitated person's place of residence and of programs, activities or services in which the incapacitated person is
involved is as follows: ______________________________________________________

5. The name of the person primarily responsible for the care of the
incapacitated person at such person's place of residence is: _________________

6. The name and address of any hospital or other institution where the
incapacitated person is now admitted on a temporary basis are: _______________

7. A brief description of the incapacitated person's physical condition is:

8. A brief description of the incapacitated person's mental condition is: __

9. A brief description of contracts made on behalf of the incapacitated
person during the past year is: ______________________________________________

10. A brief description of major decisions made on the incapacitated
person's behalf during the past year is: _____________________________________

11. The reasons, if any, why the guardianship should continue are: ________

Signature of Guardian: ______________________________________________________

Date: ________________________".

  • Any guardian may rely on a qualified health care professional's current written report to provide descriptions of the physical and mental conditions required in items 7, 8 and 11 of the annual report as specified in Subsection A of this section.
  • The guardian may be fined five dollars ($5.00) per day for an overdue annual report. The fine shall be used to fund the costs of visitors, counsel and functional assessments utilized in conservatorship and guardianship proceedings pursuant to the Probate Code [this chapter].
  • The court shall not waive the requirement of an annual report under any circumstance, but may grant an extension of time not to exceed sixty days. The court may require the filing of more than one report annually.

 45-5-315. Consent to guardianship not permitted.

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 the appointment of a guardian for an incapacitated person shall apply in every guardianship proceeding.