Guardianship and Conservatorship

The guardian ad litem is an attorney who will represent the proposed protected person’s legal interests in the guardianship proceeding. The court visitor will typically visit the proposed protected person and interview him or her, the caregivers, and the family. The guardian ad litem and the court visitor are the independent “eyes and ears” of the judge. The court visitor will make a written report to the court. The guardian ad litem will make an oral report to the judge at the hearing.

At the hearing, the judge will hear evidence presented from the qualified healthcare professional, the guardian ad litem and the court visitor and others and will determine if the evidence is sufficient to prove that the perspective protected person is incapacitated and in need of a guardian and conservator. The evidence must be clear and convincing and show that guardianship is appropriate and required. Ultimately, at the hearing, the judge will decide who/what entity will act as guardian and/or conservator and what the authority of the guardian and/or conservator will be. This process normally takes two months.

In New Mexico, only a Judge can appoint a guardian and/or conservator for someone else. There are specific steps that you will need to take in order to become a guardian and/or conservator for another person who is incompetent or incapacitated. There are also key players who will be involved in this process that you must be prepared to work with.

First, in order to be appointed a guardian and/or conservator, you must obtain a report from a court appointed “Qualified Health Care Professional" which the New Mexico Probate Code defines as "a physician, psychologist, nurse practitioner or other health care practitioner whose training and expertise aid in the assessment of functional impairment."  In regard to a guardianship, the Probate Code mandates that:

The next step involves filing a petition with the district court asking that someone be appointed as guardian and/or conservator. After this is done, summons will be served to the perspective protected person to let him or her know about the proceeding. During the time between the filing of the petition and the hearing to determine whether a guardian and/or conservator should be appointed and who that should be, the court will appoint a guardian ad litem and a court visitor who will make recommendations to the assigned judge.

The conservator, has  the power and the duty to protect and manage the conservatee's property.  This would include gathering the assets of the estate, investing them, and using them for the conservatee's benefit.

In New Mexico, a conservator is someone appointed by a court to protect and manage the finances of someone (called a "conservatee") who is unable to do so himself or herself as a result of illness or other disability.  Thus, just as guardians make personal decisions for people unable to make such decisions for themselves, conservators are responsible for protecting conservatees’ property and using the property for the conservatees’ benefit.  The responsibilities of a conservator include:

locating and managing the conservatee’s finances;

• making sure the conservatee's bills are paid;
• investing his or her money wisely;
• making sure that the property is safe, and insured when necessary and appropriate;
• seeing that the conservatee is receiving all the income and benefits (s)he is entitled to; and
• verifying that tax returns are filed on time.

There are many reasons why a conservator might be needed.  For example, the conservatee may not be able to keep track of his or her money or may not remember to pay his or her bills.  (S)he may be giving away large amounts of money to strangers or spending large amounts of money on sweepstakes and lotteries.  (S)he may need help managing investments.  A conservator can be a family member or friend, or it can be a bank or other company that is in the business of managing finances for other people.  In either case, the conservator is expected to act wisely and for the good of the person who needs assistance.