Guardianship is a legal arrangement that plays an important role in protecting vulnerable individuals who are unable to care for themselves. This legal process allows a court-appointed guardian to make decisions on behalf of another person, known as the protected person or ward. Guardianship cases encompass a wide range of situations, from caring for minors to assisting adults with disabilities or elderly individuals facing cognitive decline.
This article covers the essential aspects of guardianship, including its various types, the process of becoming a guardian, and specific guardianship situations. Keep reading to learn about guardians’ responsibilities, the rights retained by protected persons, and alternatives to guardianship that may offer less restrictive options for care and support.
What is Guardianship?
Guardianship is a court-appointed legal arrangement designed to protect and make decisions for individuals who cannot fully care for themselves.
This arrangement can apply in two primary situations:
- For minors whose parents are absent, unable, or unwilling to care for them.
- For adults who lack the capacity to manage their personal care, property, or finances due to mental or physical limitations.
In cases involving minors, the court may appoint a guardian when parents are deceased, incapacitated, or deemed unfit. For adults, guardianship might be necessary due to conditions such as developmental disabilities, severe mental illness, or cognitive decline associated with aging.
The court carefully considers the need for guardianship, as it significantly impacts an individual’s rights and autonomy. For both minors and adults, guardianship should only be sought when no other less restrictive options are available to meet the individual’s needs.
What Are the Types of Guardianship?
New Mexico recognizes several types of guardianship:
- Guardian of the Person: Responsible for personal and medical decisions, ensuring basic needs are met, making healthcare decisions, and arranging living situations.
- Guardian of the Estate (Conservator): Manages financial affairs and property, including bank accounts, investments, bill payments, and protecting the estate from fraud.
- Plenary or Full Guardianship: Covers both personal and financial decisions, granting broad authority similar to that of a parent over a minor child.
- Limited Guardianship: Restricts the guardian’s authority to specific areas based on the protected person’s capabilities.
- Temporary Guardianship: Appointed for a limited time (usually up to 60 days) in emergency situations.
- Mental Health Treatment Guardianship: Specifically for mental health treatment decisions, lasting up to one year.
- Kinship Guardianship: Prioritizes family members or close friends for guardianship of a child, governed by the Kinship Guardianship Act.
What is the Process of Becoming a Guardian?
- Filing a Petition: An interested party files a petition with the district court, explaining the necessity for guardianship.
- Professional Evaluations: The court appoints a Guardian ad Litem, a healthcare professional, and a court visitor to evaluate the minor or incapacitated person.
- Notification: The proposed guardian must notify all required parties of the guardianship proceedings.
- Court Hearing: A judge reviews evidence and testimony to determine if guardianship is necessary.
- Appointment: If approved, the guardian is appointed and must file an Acceptance of Appointment.
- Ongoing Responsibilities: Guardians must file regular reports with the court on the protected person’s condition and care.
What are the Specific Situations of Guardianship?
Guardianship of a Child
When parents cannot care for their child, a guardian may be appointed. In New Mexico, this process is governed by the Kinship Guardianship Act, which allows for relatives or close family friends to become guardians.
Key points include:
- The child must have resided with the proposed guardian for at least 90 days.
- Parents must be unable or unwilling to provide adequate care.
- The guardianship lasts until the child turns 18 or graduates high school.
- The guardian has similar rights and responsibilities to a parent, including making decisions about education and healthcare.
Adult Guardianship
Adult guardianship is established when an individual is deemed incapacitated due to conditions such as:
- Dementia or Alzheimer’s disease
- Severe mental illness
- Traumatic brain injury
- Developmental disabilities
The guardianship should be tailored to the individual’s specific needs and abilities. For instance, a person with early-stage Alzheimer’s might only need assistance with financial matters, while someone with a severe developmental disability might require full guardianship.
Guardianship of Someone with Developmental Disabilities
A developmental disability is defined as a severe, chronic condition that results in substantial functional limitations in at least three major life areas. When considering guardianship for someone with a developmental disability:
- The court assesses the person’s ability to function in areas such as self-care, language, learning, mobility, self-direction, capacity for independent living, and economic self-sufficiency.
- The guardianship should be designed to encourage maximum self-reliance and independence.
- Regular reassessment is crucial, as the person’s capabilities may change over time.
Guardianship of an Elder
Elderly guardianship is often necessary due to age-related conditions like Alzheimer’s disease or other forms of dementia. Considerations include:
- The need to balance protection with respect for the elder’s autonomy
- The importance of involving the elder in decision-making when possible
- The potential for financial exploitation, which guardians must be vigilant against
- The need for sensitivity to the elder’s long-standing preferences and values
What are the Responsibilities of a Guardian?
Guardians’ responsibilities include:
- Making healthcare decisions
- Determining living arrangements
- Managing finances and property
- Ensuring safety and well-being
- Providing opportunities for education and skills development
- Reporting to the court
- Making decisions about social and recreational activities
What are the Rights of the Protected Person?
Protected persons retain certain rights, including:
- The right to be treated with dignity and respect
- The right to participate in decision-making when possible
- The right to receive appropriate medical care and education
- The right to have their preferences considered
- The right to petition the court for restoration of rights or termination of guardianship
- The right to communicate with family, friends, and their attorney
- The right to privacy in communications and personal care
What are the Alternatives to Guardianship?
Less restrictive alternatives to guardianship include:
- Power of Attorney
- Advance Healthcare Directives
- Representative Payee for government benefits
- Supported Decision-Making agreements
- Trust arrangements
- Limited guardianship
How do I Modify or Terminate a Guardianship?
Guardianship can be modified or terminated if the protected person’s condition improves, less restrictive alternatives become viable, or the guardian is no longer able or willing to serve. Any interested party can petition the court to review the guardianship arrangement.
Sutherland Law Firm: Your Advocate in Guardianship
Navigating the complexities of guardianship law can be challenging, but you don’t have to face it alone. Sutherland Law Firm is here to guide you through every step of the guardianship process. Whether you’re considering guardianship for a child, an adult with disabilities, or an elderly loved one, we can help you understand your options and make informed decisions.
We are committed to protecting the rights and well-being of both potential guardians and protected persons. We’ll work closely with you to explore all available options and, if guardianship is necessary, ensure that the arrangement is tailored to your situation’s specific needs. Contact us today to learn how we can assist you through every step of your legal journey.