HomeAbout Guardianship

What is Guardianship?

What if You Could No Longer Care for Yourself?

New Mexico Courts

National Guardianship Association

Thoughts on Guardianship

The text below is the introduction from the NMGA Handbook for Guardians and
Conservators:

Generally, guardianship and conservatorship exist as a legally sanctioned process to provide the ability for one person to make decisions for another who the court has determined is unable to do so.

Specifically, a guardian is a person, persons, or entity appointed by a court to make personal and health care decisions for a person who the Court determines to be an “incapacitated person.” For the purposes of guardianship, under New Mexico law, a person may be adjudicated to be an incapacitated person if that person demonstrates over time either partial or complete inability to manage his or her personal care. That inability must be demonstrated by a recent inability of the person to meet his or her 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 future. Importantly, the inability must be caused by a functional impairment. Functional impairment may be caused by developmental disability, mental illness, dementia, physical illness or disability, or chronic substance abuse.

On the other hand, a conservator is a person, persons, or entity appointed by a court to make financial decisions for a person the court determines to be an “incapacitated person.” For the purposes of conservatorship, under New Mexico law, a person may be adjudicated to be an incapacitated person if that person demonstrates over time the partial or complete inability to manage his or her estate or financial affairs or both. That inability must be demonstrated by recent gross mismanagement of a person’s income and resources or a medical inability to manage one’s income and resources that has led or in the future may lead to financial vulnerability. Importantly, as the case is in guardianship, the inability must be caused by a functional impairment.

Before a Court will order the appointment of a guardian and/or conservator for a person who is incapacitated, the Court must find that there are no other alternative resources available to provide for the well-being of the protected person or for the management of his or her financial affairs. New Mexico law allows the court to impose a guardianship or conservatorship on a person only if it is the least restrictive alternative to provide for that person’s needs. The law requires that the guardianship and conservatorship be tailored to the needs of the protected person and that the powers of the guardian and conservator are limited to meet those needs.

A guardianship shall be designed to encourage the development of maximum selfreliance and independence of the protected person and shall be ordered only to the extent necessitated by the person’s actual functional mental and physical limitations.

NMSA 1978 § 45-5-301.1 (1989)

What if You Could No Longer Care for Yourself?

What will happen if you are unable to make health care or financial decisions for yourself? The time to plan for this possibility is now. By making your preferences known in advance, you can ensure your wishes will be followed and help your family avoid disagreements over the handling of your finances, personal needs and health care. Without proper planning, your family may be forced to seek the appointment of a guardian or conservator to make decisions for you if you become unable to make them.

Alternatives to Guardianship

Generally, no one has the right to make health care decisions or financial decisions for you unless there is a document granting them decision-making power.

Guardianship is court ordered authority that is ideally given to someone responsible for and close to the person in need of assistance. Because establishing a guardianship may remove considerable rights from an individual, it should only be considered after alternatives have proven ineffective or are unavailable.

A guardianship and conservatorship may be avoided by implementing an alternative type of surrogate decision making. Because such alternatives entail the signing of legal documents, they should be considered and implemented only by a legally competent adult.

One such alternative is a Health Care Power of Attorney, in which one person is named to make health care decisions in the event the person signing is unable. Appointing a professional care manager may also help in avoiding a guardianship.

Alternatives to Conservatorship

There are a number of possible alternatives to conservatorship, the first of which is a Power of Attorney. The purpose of a Power of Attorney is to appoint someone else (your agent) to make financial decisions and transact business for you. It becomes effective upon signing unless otherwise provided. To be an effective alternative, your Power of Attorney should be written so that it is “durable,” meaning your agent’s authority continues after you become incapacitated. Under New Mexico law, a Power of Attorney is durable unless otherwise stated.

A second alternative is a Representative Payee Arrangement. Some agencies, such as the Social Security Administration and the Veterans Administration, will allow a person to receive financial benefits for you if you are unable to manage those benefits. The person who receives these benefits is a Fiduciary or a Representative Payee and is required to keep records of how the money is spent and to use that money solely for your benefit.

Establishing a trust is a third alternative which can be created by signing a written document called a Trust Agreement. When you create a trust, you are the grantor, and the person or organization managing the trust property is called the Trustee. A person may be the trustee of his or her own trust, and the Trust Agreement may provide for the appointment of another trustee when the grantor becomes incapacitated. Trusts may serve a wide variety of purposes, such as paying bills, managing investments and managing real estate.

Why should you think about the alternatives?

1. Ensure Your Wishes Are Met

Independence, respect and the right to control one’s own affairs are values important to most people. With careful planning, your preferences are more likely to be followed in the event of your incapacity.

2. Avoid Conflict and Costs

Guardianship and conservatorship proceedings can involve substantial legal and other fees, especially when family members disagree about who should be the guardian or conservator or how decisions should be made on behalf of the incapacitated person.

3. Reduce Wait Time for Assistance

For individuals with limited resources, proper planning can avoid waiting lists to receive assistance in a publicly-funded guardianship proceeding.

In addition to signed legal documents, the Uniform Health Care Decisions Act (UHCDA*) sets forth procedures for medical decision making in emergency medical situations. If you have not already designated a decision maker, the UHCDA allows certain persons to make decisions for you if you cannot make them yourself.* The UHCDA is usually used in times of medical emergency and should not be relied upon as a guardianship alternative.

* The UHCDA is not effective to designate a decision maker for mental health treatment decisions. If you become unable to make mental health treatment decisions on your own and you do not want a court to intervene, you must designate someone in advance.

The New Mexico Judiciary has a web site dedicated to Guardianship & Conservatorship. Required forms and videos for Guardians and Conservators will be found here, along with updates to the judiciary rules regarding Guardianship & Conservatorship.

The National Guardianship Association is an association created to foster excellence in guardianship by being a resource to, and creating standards for the guardianship field.

I am ever grateful for this work that I’m blessed to do.

When I first met N.U., she was a crumpled mess, sitting on the floor of the Mental Health Center, with her knees pulled to her chest and face buried. She was now entering her fourth month as an inpatient at our state’s long-term mental health hospital.

At 44 years old, this navy veteran was now almost entirely dependent on others to prompt her for completion of the day’s simplest tasks. She spoke very little and made no eye contact when addressed. Everything that might contribute to her perceived value as a person had been stripped away.

As a result of her debilitating mental illness (which was amplified by chronic use of drugs and alcohol), her two young children had been removed from her custody. She lost her home and was shunned by her small native community. She was crippled by shame and self-loathing. N.U.’s medications had calmed the primary psychosis, but did nothing to restore her self-worth. She was ashamed of what she could remember and horrified by what she could not. N.U. was terribly depressed.

Due to her incapacitating illness, court intervention occurred in the form of a guardianship and conservatorship. I had the pleasure of serving as her guardian for the next two years. On the day of our first meeting, we packed up her few belongings at the hospital and journeyed back to Albuquerque to introduce her to her new life.

As a 100% service-connected veteran, N.U. received a healthy monthly compensation and full benefits for housing and healthcare. She moved into a veteran’s “foster” home, fortuitously run by two compassionate women who saw the “good” in my client. I assisted in the enrollment in the Mental Health Intensive Case Management Program at the VA and we all “went to work.” For many reasons, the level of time-intensity on this case was quite high for many months.

Incrementally and over time, N.U.’s involvement with her children was restored and increased. As guardian, we assisted in the required supervision of her visits with them. She took great pride in her newfound sobriety, attending groups, classes and 1:1 therapy. She eventually “graduated” from foster care and moved into her own apartment with supports. It was with great joy I selected her housewarming gift. She was now not only drug and alcohol free, but cigarette free as well! She did not want her new apartment (of which she was so proud) to smell of cigarette smoke.

Our next milestones were self-management of medication and overnight visits with her children. Oh – and did I mention she (by then) had a job? With all these achievements, this was a natural “next-step.” With every success, the cloud of shame that followed her dissipated just a little more. At times, she practically “bubbled over” during my visits – as if she’d stored up every good thing in anticipation of sharing at my visit.

When I first introduced the notion of seeking limitation of the guardianship, N.U. was a bit trepidacious. Though she reveled in her successes, deep down she didn’t entirely believe that she was responsible for them. Limitation of the guardianship was a scary notion. We worked through this, and sought the court for restoration of her rights. She was very proud to have the guardianship limited – another milestone! This meant less oversight and more true “ownership” of her conquests.

After a period of about six months, things had gone so well that we went back to the court to terminate the guardianship altogether. This time she was ready! By now, she was entirely independent. She had a car and her driving privileges had been restored. Her visit with the children were routine and unsupervised. Relationships with family and community members were being restored.

As painful and challenging as this road was for N.U., and despite the shame felt by the imposition of a guardianship, this was absolutely the right course to take. This guardianship was not an end, but a beginning.

I am ever grateful for this work that I’m blessed to do. For all the stiff necks and sleepless nights it gives me, I wouldn’t trade it for the world. Whether it be by advocating and protecting a person through their permanent incapacity or, like the case of N.U., walking with them on the path toward restoration and recovery – EVERY case we see represents potential success.

- Mary Galvez -