When you’re asked to be a guardian of a minor or elderly person, there are hundreds of questions that spring to mind. You may have a desire to help out a family member or close friend in need. Fortunately, the laws and guidelines surrounding guardianship in New Mexico are designed to help everyone involved stay protected and involved.

In fact, just this year, Gov. Michelle Lujan Grisham signed into law a reform measure to ensure that incapacitated adults under court-ordered guardianships receive better oversight of their cases. A team of court auditors, as well as a new volunteer program, will provide independent “eyes and ears” to help ensure the welfare of those who are cared for by a guardian.

What is guardianship?

If you have been asked to be a guardian, whether to a child or a person who is alleged to be incapacitated, you may not be sure what your role is.

Put simply, guardianship means that the court assigns an individual who oversees the welfare and/or finances of a minor or alleged incapacitated person. This individual will be in the care of the guardian. Guardianships can be long term or short term, depending on the situation.

Who can be a guardian?

According to New Mexico law a court appointed guardian must be at least 18 years old and does not have to be a relative of the person. Therefore, guardians can be biological ( aunts, uncles, grandparents or cousins) or non-biological (a family friend or neighbor). 

Whether related or not, a potential guardian must show they have a relationship with the minor or elderly person and express why he or she would be a good fit for the role.

There are two groups of people who cannot be guardians in New Mexico:

  • Convicted felons with a criminal record
  • Those deemed incompetent by the court

Who needs a guardian?

There are two classes of people who can be assigned a guardian.

  • Minor children – under the age of 18 – who are in an abusive home situation, neglected, have parents who are terminally ill or incarcerated or are unable to provide the proper care.
  • Adults who can no longer take care of themselves due to a variety of reasons including sickness, mental health issues, developmental disabilities or deteriorating health.

What do I do if I’m named as a guardian? 

Usually, you will have a conversation with the person who is asking the court to appoint guardianship to you. In this discussion, you will review your relationship with them, what is expected of you, and other details. 

It’s a good idea to make sure that you and your family are organized and your home can accommodate the person. Guardians house, clothe, and feed the person they take in.  You may also need to provide medical and other related services. Other duties include making sure they receive an education (if needed) and managing his or her finances.

If you become the guardian of an incapacitated person, you are responsible for providing care at home or in a facility. You’ll also keep track of their finances and assist with other tasks as needed.

While you may not have to appear at a hearing, there will be papers that you have to sign. At a predetermined time each year, you will probably meet with a representative of the state or court to provide a report on the health and wellbeing of the individual.

What legal issues come up? 

Like any other situation, issues can arise when it concerns guardianship. First, the guardianship may be contested by others involved with the minor or incapacitated person. In some instances, the person who is under your guardianship may ask the court to have you removed, claiming that you are no longer needed to provide care.

Neglect can also be cited by family members or friends. This type of accusation can arise due to hurt feelings or jealousy. This is why it’s vital that guardians be organized and closely monitor the person they’ve been appointed to care for.

Remember that most guardianships are temporary, even though they may last for several years. When someone terminates or relinquishes a guardianship, it can be due to reaching adulthood, adoption, getting married, or becoming legally emancipated.

The biological or adoptive parents of a child can also petition the court to terminate the guardianship. They must go to court and prove that the child can be provided with a stable home, there is income to support the child, and that the parents are “fit” to take care of the child.

You will be sent various forms that must be completed by you and anyone else included in the guardianship and then submitted to the court. You may also be asked to provide financial statements and doctor’s letters, depending on the situation.

New Mexico Guardianship Help

Sutherland Law Firm has offices in Albuquerque and Las Cruces staffed with professional teams of lawyers who can help with your questions about legal guardianship. Contact us today.