Guardianship and Conservatorship

A guardian is a person appointed by a court to make personal and health care decisions for someone who is impaired because of mental illness or dementia, physical disability or substance abuse.  Someone who is impaired in this way is considered incapacitated.  Before a court will appoint a guardian, the incapacitated person must have shown that (s)he is not able to manage his or her personal care decisions.  Personal care decisions cover such things as medical care, nutrition, clothing, shelter, hygiene or safety.

New Mexico law states that a guardianship should encourage the individual's independence and should be limited to the powers necessary to help with the person's mental and physical limitations.  In New Mexico a guardian is appointed by a court to provide for the care, custody or control of the incapacitated person (called a protected person).

 

Temporary Guardian

Someone can be named as a temporary guardian to take care of immediate and pressing needs of the protected person. In this case, the order appointing a guardian will last only 60 days unless the attorneys and judge agree to extend it.  During this time, a guardian will only be able to do specific things outlined in the court’s order, such as clean up a protected person’s house or agree to a medical procedure needed immediately.  The protected person should not be moved from his or her residence unless the court specifically orders it.

Permanent Guardian

Someone can also be named as the permanent guardian of the protected person and have the power to make certain decisions for the protected person, depending on whether a limited or full guardian.  As mentioned above, if the guardianship is limited, the guardian will have the power only to make specific decisions for your protected person as provided in the Court’s order.  protected The protected person will be able to make all other decisions because (s)he retains that right.

A full guardian has the same powers, rights and duties that a parent of a minor child has, except unlike a parent, the guardian is not liable (legally responsible) for the protected person’s acts .  A guardian must be negligent or careless in some way to be liable for damages or injuries to others.

 

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.

 

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.