2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 5 - Protection of Persons Under Disability and Their Property › Part 3 - GUARDIANS OF INCAPACITATED PERSONS › Section 45-5-310 - Temporary guardians.

A. When a petition for guardianship has been filed, but adherence to the procedures set out in Section 45-5-303 NMSA 1978 would cause serious, immediate and irreparable harm to the alleged incapacitated person's health, safety or welfare, the court may appoint a temporary guardian prior to the final hearing and decision on the petition, subject to the requirements of this section.
B. Upon separate motion by the petitioner, the court shall schedule and hold a hearing on the appointment of a temporary guardian no later than ten business days from the date the motion is filed and appoint a guardian ad litem for the alleged incapacitated person. The guardian ad litem shall file a report no later than two days prior to the hearing. The report shall include those items found in Paragraphs (1) through (3) of Subsection A of Section 45-5-303.1 NMSA 1978. Notice of the hearing shall be as set out in Section 45-5-309 NMSA 1978.
C. Upon a finding that serious, immediate and irreparable harm to the alleged incapacitated person's health, safety or welfare would result during the pendency of petition, the court shall appoint a temporary guardian and shall specify the temporary guardian's powers in order to prevent serious, immediate and irreparable harm to the alleged incapacitated person. The duration of the temporary guardianship shall not exceed thirty days. However, if after a hearing in which there is a showing of good cause, the court may extend the temporary guardianship for no more than an additional sixty days.
D. A temporary guardian may be appointed without notice to the alleged incapacitated person and to the alleged incapacitated person's attorney only if it clearly appears from specific facts shown by affidavit or sworn testimony that serious, immediate and irreparable harm will result to the alleged incapacitated person's health, safety or welfare before a ten-day hearing on the appointment of a temporary guardian can be held. If a temporary guardian is appointed without notice to the alleged incapacitated person and the alleged incapacitated person's attorney, the court shall schedule and hold a hearing no later than ten business days from the date the motion for temporary guardian is filed to determine whether the temporary guardianship should continue and, if so, to address the continued authority of the temporary guardian. The petitioner shall have the alleged incapacitated person and the alleged incapacitated person's attorney served personally within twenty-four hours of the appointment of a temporary guardian as provided in Subsection B of Section 45-5-309 NMSA 1978. The alleged incapacitated person, the alleged incapacitated person's counsel or any interested person may appear and move dissolution or modification of the court's order, and, in that event, the court shall proceed to hear and determine such motion at the initial ten-day hearing or no later than ten business days from the date the motion is made, whichever comes first.
E. A temporary guardian is entitled to the care and custody of the alleged incapacitated person, but a temporary guardian may not sell or dispose of any property belonging to the alleged incapacitated person, or make a change to the housing or other placement of the alleged incapacitated person, without specific authorization from the court. A temporary guardian may be removed by the court at any time. A temporary guardian shall file an initial written report with the court within fifteen days of appointment by completing the guardian's report, as approved by the supreme court. A temporary guardian shall file a final written report with the court by completing the guardian's report, as approved by the supreme court, within fifteen days of the termination of the temporary guardianship or as otherwise ordered by the court. In all other respects, the provisions of the Uniform Probate Code [Chapter 45 NMSA 1978] concerning guardians apply to temporary guardians.
F. Appointment of a temporary guardian shall have the temporary effect of limiting the legal rights of the alleged incapacitated person as specified in the court order. Appointment of a temporary guardian shall not be evidence of incapacity.
History:
1953 Comp., § 32A-5-310, enacted by Laws 1975, ch. 257, § 5-310; 1989, ch. 252, § 11; 1993, ch. 301, § 8; 2022, ch. 36, § 1.
ANNOTATIONS
The 2022 amendment,
effective July 1, 2022, revised the procedures for the appointment of temporary guardians, and clarified certain reporting requirements; in Subsection A, after "set out in", deleted "this section" and added "Section 45-5-303 NMSA 1978", after "would cause", added "serious", after "incapacitated person's", deleted "physical", and after "health", added "safety or welfare"; in Subsection B, after "Upon", added "separate", after "shall schedule", added "and hold", after "appointment of a temporary guardian", deleted "for the earliest possible date" and added "no later than ten business days from the date the motion is filed and", after "appoint", deleted "counsel" and added "a guardian ad litem", and after "alleged incapacitated person", deleted "and give notice as provided" and added the remainder of the subsection; added a new subsection designation "C." and redesignated former Subsections C through E as Subsections D through F, respectively; in Subsection C, after "finding that serious", added "immediate", after "incapacitated person's health", added "safety or welfare", after "in order to prevent serious", added "immediate", after "shall not exceed", deleted "sixty" and added "thirty", after "days", deleted "except that upon order of the court, the temporary guardianship may be extended for not more than thirty days" and added the remainder of the subsection; in Subsection D, after "harm will result to the alleged incapacitated", deleted "person" and added "person's health, safety or welfare", after "before a", added "ten-day", after "a temporary guardian can be held", deleted "The alleged incapacitated person shall be notified within twenty-four hours of the appointment of a temporary guardian by the petitioner as provided in Subsection C of Section 45-5-309 NMSA 1978. On two days' notice to the party who obtained the appointment of a temporary guardian without notice, or on such shorter notice to that party as the court may prescribe" and added "If a temporary guardian is appointed without notice to the alleged incapacitated person and the alleged incapacitated person's attorney, the court shall schedule and hold a hearing no later than ten business days from the date the motion for temporary guardian is filed to determine whether the temporary guardianship should continue and, if so, to address the continued authority of the temporary guardian. The petitioner shall have the alleged incapacitated person and the alleged incapacitated person's attorney served personally within twenty-four hours of the appointment of a temporary guardian as provided in Subsection B of Section 45-5-309 NMSA 1978", after "the alleged incapacitated person's counsel", added "or any interested person", and after "determine such motion", deleted "as expeditiously as the ends of justice require" and added "at the initial ten-day hearing or no later than ten business days from the date the motion is made, whichever comes first"; in Subsection E, after "custody of the alleged incapacitated person", deleted "and the authority of any permanent guardian previously appointed by the court is suspended as to those specific matters granted to the temporary guardian by the court" and added "but a temporary guardian may not sell or dispose of any property belonging to the alleged incapacitated person, or make a change to the housing or other placement of the alleged incapacitated person, without specific authorization from the court", after "A temporary guardian shall", deleted "make any report the court requires" and added "file an initial written report with the court within fifteen days of appointment by completing the guardian's report, as approved by the supreme court. A temporary guardian shall file a final written report with the court by completing the guardian's report, as approved by the supreme court, within fifteen days of the termination of the temporary guardianship or as otherwise ordered by the court", and added "Uniform" preceding "Probate Code"; and in Subsection F, after "shall have the", added "temporary", and after "legal rights of the", deleted "individual" and added "alleged incapacitated person".
The 1993 amendment,
effective July 1, 1993, added the language beginning "except that" at the end of the final sentence in Subsection B and inserted "alleged" near the beginning of the second sentence in Subsection C.
The 1989 amendment,
effective June 16, 1989, rewrote the section to the extent that a detailed comparison would be impracticable.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
14 C.J.S. Chemical Dependents § 4; 49 C.J.S. Insane Persons §§ 37, 38.