Canyon descending through the Sandia Mountains

Second Judicial District Court Elder and Disability Initiative

The Second Judicial District Court’s Elder and Disability Initiative (“EDI”) is a program created to assist civil court judges with adult guardianship and conservatorship cases. These are cases where adults have been found to lack the capacity to make decisions necessary to protect and keep themselves safe, and a judge has appointed another person – a guardian and/or a conservator – to make crucial decisions for the incapacitated adult, also known as the protected person. Guardians make necessary healthcare, residential, and minor financial decisions, and conservators make financial decisions for incapacitated adults with more complex estates.

The EDI provides training for proposed guardians and conservators and acts on civil judges’ referrals, including completing the statutorily required ten-year reviews of each guardianship and/or conservatorship case and investigating concerns either of the judge or interested parties. The EDI also answers questions from guardians, conservators, representative payees, protected persons, and other interested parties such as family members.

The EDI staff attorneys do not provide legal representation or legal advice to any party to a guardianship and/or conservatorship proceeding, including proposed guardians and/or proposed conservators, guardians, conservators, representative payees, protected persons, or any other interested parties.

Guardian and Conservator Duties

Guardians and conservators are individuals (often family members), companies or organizations appointed by a judge to make decisions for another adult that is incapacitated and unable to manage their finances, property, health care, or living arrangements. In New Mexico, guardians and conservators are obligated by law to act in the best interests of the individual and to allow the protected person as much freedom as possible.

The duties of a guardian are to oversee the welfare and safety of the protected person and protect them from abuse and exploitation. This duty sometimes includes making minor financial decisions and transactions when the guardian is given financial authority in cases with small/limited estates. A guardian may help manage the protected person’s healthcare needs, medical appointments and housing.

The duties of a conservator are to oversee the protected person’s estate to preserve and protect it, to make financial decisions, and to protect the protected person from financial exploitation. A conservator may help manage the protected person’s finances, investments, and properties.

The exact duties of a guardian and conservator are particular to the needs of the protected person. These duties are outlined in the judge’s order that is issued when a guardianship and/or conservatorship is granted.

Training Class

The Second Judicial District Court requires proposed guardians and/or conservators to attend an EDI training class either by video conference or in-person at the courthouse. (Due to the Covid-19 pandemic, the training classes are being conducted only by video conference until further notice.) The training class covers the guardians’ and conservators’ rights, statutory and fiduciary obligations, and the protected person’s rights. It also includes an overview of the initial and annual reports that are required by the Court for review. The training class is approximately one hour long.

The EDI training is in addition to the required viewing of the New Mexico Supreme Court’s Adult Guardian and Conservator Orientation Program Videos.

Training classes take place twice a month. Video classes are available if in-person training is not possible. Registration is required to attend a training session. To register, contact Dora Bozovic EDI Administrative Assistant II, after you have received the Order of Referral to EDI training.

Training should be completed prior to your hearing with the Judge, and the Order of Referral to EDI training often requires you to complete the training within 30 days of the order. Accordingly, you should register for training as soon as possible after receiving the order.

Interpreters are available upon request at no charge.

Court Investigator

New Mexico’s guardianship and conservatorship statutes require that every active guardianship and/or conservatorship case be reviewed at least every ten years to ensure that the protected person continues to require court-ordered protection and that the current guardian and/or conservator is still able and appropriate to continue to serve. This review is in addition to the annual reports that must be submitted to the court every year. This ten-year review can happen in two ways: The judge can schedule a status conference or a hearing with all parties; or the judge can appoint a court investigator (sometimes referred to as a special master) to interview all interested parties and the protected person, to review available medical and financial records, and to visit the protected person in his or her home. If a court investigator is appointed, the investigator then reports their findings and recommendations to the judge. In addition to the ten year review, the court may conduct a review of a guardianship and/or conservatorship case at any time, or upon request of any interested party.

Records Review

Each of the ten civil judges carries several hundred active guardianship and conservatorship cases. Civil judges must review the initial and annual reports, make necessary inquiries about a protected person’s status and the guardians’ and conservators’ performance and qualifications. If a judge has questions or concerns about a case, the judge can appoint EDI staff to find more information. This happens frequently. EDI staff reviews public benefits information and investigates financial reports in conservatorship cases and can interview prospective successor guardians and conservators. EDI staff also investigates concerns about existing guardians and conservators and the performance of their obligations.

Resources

New Mexico Statutes

All of the matters involved in guardianships and conservatorships are governed by detailed New Mexico Statutes: “Protection of Persons Under Disability and Their Property” NMSA 1978 § 45-5-101 et seq.

https://nmonesource.com/nmos/en/nav.do

New Mexico Supreme Court Adult Guardian and Conservator Orientation Program Videos

Under Supreme Court Order 21-8300-0001 and Rule 1-144 NMRA of the Rules of Civil Procedure for the District Courts, any proposed guardian and/or conservator must watch a series of videos to complete the Adult Guardian and Conservator Orientation Program. A judge may also order an existing guardian and/or conservator to watch these videos. These videos can be found at:

English Training Videos

Spanish Training Videos

Forms

Once the Court appoints you as guardian and/or conservator, you must file a report with the Court every year regarding the protected person’s situation. Only use the official forms for your reports. These forms ask questions about the protected person’s residential, financial, medical, social, and physical well-being. All guardians and conservators must sign each report under oath and certify that each report has been provided to all interested parties, including the protected person. If a report is not signed or served as required, it will be rejected.

All of the official report forms are available online at:

https://adultguardianship.nmcourts.gov/forms/

Both guardians and conservators may be fined up to $25.00 per day for late reports. If you manage the protected person’s finances either as guardian or conservator, you must keep financial records for seven years. An audit is possible if the Court requests a financial review. The Office of the State Auditor receives copies of each Conservator’s Report filed with the Court. The State Auditor’s office can initiate an audit on a random basis or for cause.

EDI Glossary

Alleged Incapacitated Person
When a petition for guardianship or conservatorship is filed, but before the Court determines that a person is incapacitated and needs a guardian or conservator, that person is referred to as an alleged incapacitated person.

Bond
A bond is a legal agreement that acts as an insurance policy to protect the protected person’s assets against losses due to the negligence or misconduct of the conservator. All conservators appointed in New Mexico must have a bond or other asset protection arrangement. The protected person’s estate usually pays for the bond.

Conservator
A conservator is a person appointed by the Court to manage only the protected person’s financial assets. Conservators are often family members or close friends, but they can also be professionals who specialize in handling the finances of others. There are two types of conservators: plenary (sometimes referred to as a full) and limited. A plenary conservator is authorized to make all of the protected person’s financial decisions. A limited conservator can only make decisions that the judge orders them to make, such as decisions about a certain piece of real estate, but nothing else. As much as possible, the conservator should consult with the protected person, and where it is appropriate, they should carry out the protected person’s wishes. The conservator must file an initial inventory within 90 days of appointment and then file an annual report every year with the Court.

Court Visitor
A court visitor is a social worker or other qualified professional appointed by the Court to visit the alleged incapacitated person to assess their ability to take care of themselves, which includes their ability to perform activities of daily living, e.g., bathing, dressing, toileting, eating, etc. The court visitor then provides the Court their professional opinion about whether a guardianship or conservatorship is necessary and appropriate. The court visitor will usually recommend who should be appointed by the Court as guardian and/or conservator.

Firearms Rule
Protected persons are prohibited by federal law from owning or possessing firearms or ammunition.

Grievance Against a Guardian or Conservator
A grievance may be filed with the Court by the protected person or any interested person if they believe a guardian or conservator is breaching their fiduciary duty or otherwise acting in a manner inconsistent with the guardianship statutes or orders of appointment. You may file a grievance either by using Form 4-999.1 or by writing a letter to the Court. In either case, you must include your name and contact information and a detailed account of what you believe is occurring. It is important to be clear about key details of the situation, and include as much information as possible about the activity you’re reporting. After reviewing the grievance, the judge may hold a hearing to discuss the reasons why you think the guardian or conservator is not doing a good job in their role of taking care of the protected person. The judge can decide not to set a hearing if a similar grievance was filed within six months of the current grievance and the judge already took action. Form 4-999.1 can be found at:

https://adultguardianship.nmcourts.gov/grievance/

Guardian
A guardian is a person appointed by the Court to manage the protected person’s personal affairs. The guardian is often a family member or a close friend of the protected person, but can also be a professional guardian. There are two types of guardians: plenary (sometimes referred to as a full) and limited.* A plenary guardian is authorized to decide where the protected person should live, what doctors they see, and what healthcare they need. They also make minor financial decisions when a conservator is not appointed. A limited guardian can only make the decisions that the judge orders them to make, such as medical decisions, but nothing else. The guardian is responsible for the protected person’s well-being and safety. As much as possible, the guardian should consult the protected person, and where it is appropriate, they should carry out the protected person’s wishes. The guardian is required to file an initial report with the Court within 90 days of being appointed guardian and an annual report with the Court every year thereafter.

*There are also treatment guardians, however, these are appointed through a different Court process.

Guardian ad litem
The guardian ad litem is an attorney appointed by the Court to represent the alleged incapacitated person’s interests in the guardianship/conservatorship case. The guardian ad litem informs the Court whether the alleged incapacitated person needs the protection of a guardianship and to what degree, and if the person petitioning to be the guardian and/or conservator is appropriate to serve in that capacity. The guardian ad litem also conveys the alleged incapacitated person’s opinion on the proceedings, e.g., does the alleged incapacitated person think they require a guardianship? The guardian ad litem is responsible for undertaking any necessary evaluations of the alleged incapacitated person to determine whether they are incapacitated and, if so, to what degree.

Hearing
New Mexico law requires a hearing on a petition to appoint a guardian or a conservator. The Court is required to take evidence before deciding whether an alleged incapacitated person needs a guardian or conservator. The petitioner, the alleged incapacitated person, the court visitor, the guardian ad litem, the qualified health care provider, and any other interested person attend the hearing, present evidence, and provide their input as to whether an alleged incapacitated person is in fact incapacitated to such an extent to require a guardian and/or a conservator.

Incapacity, Incapacitated Person
Incapacity, or an incapacitated person, for purposes of New Mexico’s guardianship and conservatorship statutes, is when a person demonstrates partial or complete functional impairment and is unable to manage their personal affairs, including an inability to manage their personal care (nutrition, healthcare, clothing, hygiene, safety, etc.) and their financial affairs that would leave them vulnerable to abuse and exploitation. The Court determines whether a person is incapacitated after hearing evidence from the alleged incapacitated person, the guardian ad litem, the court visitor, the qualified healthcare professional, any interested persons, and any witnesses presented by any of those individuals.

Interested Person
An interested person is any person who has a close relationship with the alleged incapacitated person such that they have an interest in the person’s welfare. An interested person may ask to be included and get notification of all hearings in the matter. The Court determines who is, and who is not, an interested person for purposes of guardianship and conservatorship proceedings.

Inventory
The Inventory is the first report a conservator is required to file with the Court, and it must be filed within 90 days of the conservator’s appointment. With the Inventory, the conservator identifies all the protected person’s assets. The Court evaluates the Inventory to determine whether the bond required is sufficient to protect the protected person from any mismanagement or malfeasance.

Letters of Conservatorship
Letters of conservatorship in their original form with a Court seal, are issued to the conservator once the conservator has been appointed by the Court and has formally accepted the responsibilities and obligations of a conservator under New Mexico law. Letters of conservatorship are the official document demonstrating to the world that the conservator has the authority to manage the protected person’s financial affairs.

Letters of Guardianship
Letters of guardianship in their original form with a Court seal, are issued to the guardian once the guardian has been are appointed by the Court and has formally accepted the responsibilities and obligations of a guardian under New Mexico law. Letters of guardianship are the official document demonstrating to the world that the guardian has the authority to manage the protected person’s personal affairs.

Motion
A motion is a request for a ruling or order of the Court.

Notice of Hearing and Rights
The notice of hearing and rights is the document that is required to be personally served upon the alleged incapacitated person to ensure that the person is provided notice of the guardianship and conservatorship proceeding. It is also required to be served upon all interested persons. The notice of hearing and rights sets the date and time of the hearing in the proceeding. It also sets out the alleged incapacitated person’s rights and informs him or her that some of those rights will be taken away from them if a guardian or conservator is appointed.

Office of Guardianship (An office of the New Mexico Developmental Disabilities Council)
The Office of Guardianship is a statewide publicly funded program for New Mexican adults who need a guardian. For alleged incapacitated persons who meet specific income eligibility requirements, the Office of Guardianship will file the case to have a guardian appointed. More information is found at: http://www.nmddpc.com/guardianship_program, or by telephone at <a href=”tel:5058414549″(505) 841-4549.

Order
An order is the written direction of a Court.

Petitioner
The person who files the case (beginning with a petition to appoint guardian and/or conservator) requesting that the Court appoint a guardian or conservator for an alleged incapacitated person.

Professional Guardian or Conservator (sometimes called Corporate Guardians or Conservators)
A professional guardian or a professional conservator is an individual or entity that serves as guardian or conservator for more than two individuals who are not related to the guardian or conservator by marriage, adoption, or third-degree of blood or affinity. Professional guardians and conservators have additional obligations under New Mexico law for certification.

Pro se Litigant (a/k/a Self-Represented Litigant)
A pro se litigant is a person who represents him/herself in Court. Pro se litigants are held to the same standard as attorneys who appear before the Court. They are also referred to as self-represented litigants.

Protected Person
A person who has been found by the Court to be incapacitated to some extent and thus requires the protection of a guardian and/or a conservator.

Qualified Health Care Provider
A qualified medical health care provider is a medical professional appointed by the Court to evaluate the alleged incapacitated person’s mental and physical well-being as it relates to their level of incapacity. The qualified health care provider examines the alleged incapacitated person and provides an opinion to the Court describing the person’s ability to make his/her own decisions and whether the person is functionally impaired to some level of incapacity. Often the health care provider’s report will include medical diagnoses that speak to an alleged incapacitated person’s incapacity.

Reporting Requirements
By statute and New Mexico Supreme Court rule, guardians and conservators are required to file reports with the Court. The initial report must be filed with the Court within 90 days of appointment as guardian and/or conservator. After that, reports are filed once a year, no later than thirty days following the anniversary date of the appointment as guardian and/or conservator. Reports must be made and filed on the forms that have been approved and adopted by the New Mexico Supreme Court. By statute, the Court may fine both guardians and conservators up to $25.00 a day for late reports.

Respondent
Respondent is a legal term describing the alleged incapacitated person who “responds” to the petition to appoint a guardian or conservator.

Service (sometimes referred to as Service of Process)
Service is the formal delivery of a document, such as a summons, on a party to a legal proceeding.

Status Conference
A status conference is an informal hearing regarding a guardianship and/or conservatorship. Guardians and conservators must attend any status conference.

Ten Year Reviews
New Mexico law requires that Courts review all adult guardianships and conservatorships at least every ten years. The Court may appoint a court investigator to visit protected persons at their residence and file a report with the Court to comply with this requirement. In addition to the ten year review, the Court may conduct a review of a guardianship and/or conservatorship case at any time.

Contact Information:

Dragica Dora Bozovic, EDI Administrative Assistant II – (505) 841-5461 or albddbb@nmcourts.gov

Wendy Lee Basgall, EDI Attorney – (505) 841-7410 or albdwlb@nmcourts.gov

Nataley I. Quintana, EDI Attorney – (505) 841-5474 or albdniq@nmcourts.gov

*It is always best to contact the Court by letter regarding any problems or concerns you have about your particular case. If you have general questions about guardianship or conservatorship, or if a Court Investigator has been appointed, please feel free to contact the EDI.