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 45-5-312 - General powers and duties of the limited guardian and guardian.

A. If the court enters judgment pursuant to Subsection C of Section 45-5-304 NMSA 1978, it shall appoint a limited guardian if it determines that the protected person is able to manage some but not all aspects of personal care. The court shall specify those powers that the limited guardian shall have and may further restrict each power so as to permit the protected person to care for the protected person's own self commensurate with the protected person's ability to do so. A person for whom a limited guardian has been appointed retains all legal and civil rights except those that have been specifically granted to the limited guardian by the court. The limited guardian shall exercise supervisory powers over the protected person in a manner that is the least restrictive form of intervention consistent with the order of the court.
B. A guardian is not legally obligated to provide from the guardian's own funds for the protected person and is not liable to third persons for acts of the protected person solely by reason of the guardianship. In particular and without qualifying the foregoing, a guardian or the guardian's replacement has the following powers and duties, except as modified by order of the court:
(1) to the extent that it is consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the protected person, a guardian is entitled to custody of the protected person and may establish the protected person's place of abode within or without New Mexico;
(2) if entitled to custody of the protected person, a guardian shall make provision for the care, comfort and maintenance of the protected person and, whenever appropriate, arrange for training and education. The guardian shall take reasonable care of the protected person's clothing, furniture, vehicles and other personal effects and commence conservatorship proceedings if other property of the protected person is in need of protection;
(3) if no agent is entitled to make health care decisions for the protected person under the provisions of the Uniform Health-Care Decisions Act [Chapter 24, Article 7A NMSA 1978], then the guardian shall make health care decisions for the protected person in accordance with the provisions of that act. In exercising health care powers, a guardian may consent or withhold consent that may be necessary to enable the protected person to receive or refuse medical or other professional care, counsel, treatment or service. That decision shall be made in accordance with the values of the protected person, if known, or the best interests of the protected person if the values are not known;
(4) if no conservator for the estate of the protected person has been appointed, if the court has determined that a conservatorship is not appropriate and if a guardian appointed by the court has been granted authority to make financial decisions on behalf of the protected person in the order of appointment and in the letters of guardianship pursuant to Subsection C of Section 45-5-308 NMSA 1978, the guardian has the following powers and duties, including the power:
(a) to institute proceedings to compel any person under a duty to support the protected person or to pay sums for the welfare of the protected person to perform that duty;
(b) to receive money and tangible property deliverable to the protected person and apply the money and property for support, care and education of the protected person, but the guardian shall not use funds from the protected person's estate for room and board that the guardian or the guardian's spouse, parent or child has furnished the protected person, unless a charge for the service is approved by order of the court made upon notice to at least one of the next of kin of the protected person, if notice is possible;
(c) to serve as advocate and decision maker for the protected person in any disputes with persons or organizations, including financial institutions, regarding the protected person's finances;
(d) to obtain information regarding the protected person's assets and income from persons or organizations handling the protected person's finances;
(e) to file an initial inventory of all property belonging to the protected person within ninety days after appointment; and
(f) to exercise care to conserve any excess for the protected person's needs and include in the guardian's ninety-day and annual reports a description of decisions made regarding the protected person's finances and property; and
(5) the guardian shall exercise the guardian's supervisory powers over the protected person in a manner that is least restrictive of the protected person's personal freedom and consistent with the need for supervision. Professional guardians shall follow the following standards in the national guardianship association standards of practice:
(a) informed consent;
(b) standards for decision making;
(c) least restrictive alternatives;
(d) self-determination of the person; and
(e) the guardian's duties regarding diversity and personal preferences of the person.
C. A guardian of a protected person for whom a conservator also has been appointed shall control the care and custody of the protected person and is entitled to receive reasonable sums for services and for room and board furnished to the protected person. The guardian may request the conservator to expend the protected person's estate by payment to third persons or institutions for the protected person's care and maintenance.
D. Unless authorized by the court by specific order, a guardian for an adult shall not revoke or amend a power of attorney for health care or power of attorney for finances signed by the adult. If a power of attorney for health care is in effect, unless there is a court order to the contrary, a health care decision of an agent takes precedence over that of the guardian, and the guardian shall cooperate with the agent to the extent feasible. If a power of attorney for finances is in effect, unless there is a court order to the contrary, a decision by the agent that the agent is authorized to make under the power of attorney for finances takes precedence over that of the guardian, and the guardian shall cooperate with the agent to the extent feasible.
E. A guardian for an adult shall not initiate the commitment of the adult to a mental health treatment facility except in accordance with the state's procedure for involuntary civil commitment.
F. A guardian for a protected person shall not restrict the ability of the protected person to communicate, visit or interact with others, including receiving visitors and making or receiving telephone calls, personal mail or electronic communications, including through social media or participating in social activities, unless:
(1) authorized by the court by specific order;
(2) a less restrictive alternative is in effect that limits contact between the protected person and a person; or
(3) the guardian has good cause to believe restriction is necessary because interaction with a specified person poses a risk of significant physical, psychological or financial harm to the protected person and the restriction is:
(a) for a period of not more than seven business days if the person has a family or preexisting social relationship with the protected person; or
(b) for a period of not more than sixty days if the person does not have a family or preexisting social relationship with the protected person.
G. A guardian for a protected person shall seek and support the least restrictive option, consistent with the court's guardianship order of appointment, including developing adequate supports and requesting guardianship termination if less restrictive alternatives to guardianship are appropriate.
History:
1953 Comp., § 32A-5-312, enacted by Laws 1975, ch. 257, § 5-312; 1984, ch. 99, § 8; 1989, ch. 252, § 13; 1993, ch. 301, § 10; 1997, ch. 168, § 12; 2009, ch. 159, § 39; 2018, ch. 10, § 6; 2019, ch. 228, § 6; 2021, ch. 128, § 8.
ANNOTATIONS
The 2021 amendment,
effective July 1, 2021, required professional guardians to adhere to certain national guardianship association standards of practice, and required a guardian for a protected person to seek and support the least restrictive alternatives to guardianship; in Subsection B, Paragraph B(5), after "consistent with the need for supervision", added "Professional guardians shall follow the following standards in the national guardianship association standards of practice", and added Subparagraphs B(5)(a) through B(5)(e); and added Subsection G.
The 2019 amendment,
effective July 1, 2019, removed a provision related to the rights and duties of a guardian; and in Subsection B, in the introductory paragraph, deleted "A guardian of a protected person has the same powers, rights and duties respecting the protected person that a parent has respecting an unemancipated minor child, except that".
The 2018 amendment,
effective July 1, 2018, limited certain powers of a guardian, and updated certain language throughout the section; in Subsections A through C, changed all occurrences of "incapacitated person" to "protected person" throughout the sections; and added Subsections D through F.
Applicability.
— Laws 2018, ch. 10, § 16 provided that the provisions of Laws 2018, ch. 10, §§ 1 through 14 apply to:
A. a proceeding for appointment of a guardian or conservator or for a protective arrangement instead of guardianship or conservatorship commenced on or after July 1, 2018; and
B. a guardianship, conservatorship or protective arrangement instead of guardianship or conservatorship in existence on June 30, 2018 unless the court finds application of a particular provision of this act would substantially interfere with the effective conduct of the proceeding or prejudice the rights of a party, in which case the particular provision of this act does not apply and the superseded law applies.
The 2009 amendment,
effective June 19, 2009, in Paragraph (4) of Subsection B, after "person has been appointed:", deleted "the guardian may institute proceedings to compel any person under a duty to support the incapacitated person or to pay sums for the welfare of the incapacitated person" and added the remainder of the sentence; and added Subparagraphs (a) through (f) of Paragraph (4) of Subsection B.
The 1997 amendment,
effective July 1, 1997, added the first sentence and added "In exercising health-care powers," at the beginning of the second sentence of Paragraph B(3), and deleted former Paragraph B(5) relating to the authority of a guardian to consent to removing or withholding maintenance medical treatment of an incapacitated person.
The 1993 amendment,
effective July 1, 1993, substituted "shall" for "may", deleted "alleged" preceding "incapacitated" and substituted "able" for "unable" in the first sentence in Subsection A; deleted "as defined in Subsection M of Section 45-5-101 NMSA 1978" following "guardian" in the second sentence of Subsection A; inserted "and" preceding "consistent" in Paragraph (6) of Subsection B; in Subsection C, substituted "an incapacitated person" for "one" near the beginning and deleted "as agreed upon between him and the conservator, provided the amounts agreed upon are reasonable under the circumstances" at the end of the first sentence; and made minor stylistic changes.
The 1989 amendment,
effective June 16, 1989, added Subsection A; redesignated former Subsections A and B as Subsections B and C; and rewrote Subsection B to the extent that a detailed comparison would be impracticable.
Powers of guardians.
— A guardian has only the care, custody, or control of the person and is not authorized to sell property, enter into leases or employ accountants and attorneys.
In re Estate of Gardner
, 1992-NMCA-122, 114 N.M. 793, 845 P.2d 1247.
A guardian, under certain circumstances, has the authority to hire an attorney to represent the interests of an incapacitated person.
— Where a court-appointed guardian for an incapacitated person, without the permission of the district court or approval of the conservator for the incapacitated person, hired an attorney to represent the incapacitated person in a matter pertaining to the incapacitated person's interests, and where the district court struck the attorney's entry of appearance, holding that only a court-appointed conservator had such authority, the district court erred in striking the attorney's entry of appearance because at the time relevant to this appeal, this section conferred on guardians the same powers, rights and duties respecting the incapacitated person that a parent has respecting an unemancipated minor child, the guardian believed it was necessary that the incapacitated person be represented by an attorney at the hearing on whether the guardianship should continue, and the purpose of the representation for which the guardian hired the attorney related to the incapacitated person's personal interests. Moreover, this section does not prohibit a guardian from hiring an attorney for the purpose of representing an incapacitated person in a proceeding concerning whether the guardianship should continue.
Richards v. McEachern
, 2020-NMCA-023.
Proper adjudication of incompetency necessary to give guardian authority.
— Where there was no adjudication of incompetency in accordance with the statutory requirements, the adjudication was a nullity as were subsequent acts by guardian whose appointment was based on that adjudication.
Blevins v. Cook
, 1960-NMSC-008, 66 N.M. 381, 348 P.2d 742 (decided under former law).
Guardians may initiate divorce.
— A guardian of an adult incompetent ward may initiate divorce proceedings on behalf of the ward.
Nelson v. Nelson
, 1994-NMCA-074, 118 N.M. 17, 878 P.2d 335.
Law reviews.
— For note, "New Mexico Expands the Power of a Guardian to Include the Right to Initiate and Maintain a Divorce Action on Behalf of the Guardian's Incompetent Ward: Nelson v. Nelson," see 25 N.M.L. Rev. 295 (1995).
For article, "Trends in New Mexico Law: 1993-94: Family Law New Mexico Expands the Power of a Guardian to Include the Right to Initiate and Maintain a Divorce Action on Behalf of the Guardian's Incompetent Ward: Nelson v. Nelson," see 25 N.M.L. Rev. 295 (1995).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
Constitutionality of statute authorizing guardian to sell or lease land of ward, 4 A.L.R. 1552.
Right of guardian to expend principal of ward's estate for support and maintenance, 5 A.L.R. 632.
Right of guardian to invest trust funds in corporate stock, 12 A.L.R. 574, 122 A.L.R. 657, 78 A.L.R.2d 7.
Court's power to authorize guardian to borrow ward's money, 30 A.L.R. 461.
Exchange as within power of sale, 63 A.L.R. 1003.
Character of claims or obligations contemplated by statute expressly giving guardian authority as to borrowing money, 85 A.L.R. 215.
Power and duty of guardian as to protection of investment in stocks by submitting to voluntary assessment, 104 A.L.R. 979.
Guardian's purchase from corporation of which he is officer or stockholder as voidable or as ground for surcharging his account, 105 A.L.R. 449.
Ownership of stock in corporation in which guardian holds stock in fiduciary capacity by guardian in his own right, 106 A.L.R. 220, 161 A.L.R. 1039.
Sale without order of court, 108 A.L.R. 936.
Option under insurance policy, guardian's power to make election, 112 A.L.R. 1063, 127 A.L.R. 454, 136 A.L.R. 1045.
Liability in absence of mandatory statute, of guardian for loss of funds as affected by failure to obtain court order authorizing investment, 116 A.L.R. 437.
Transaction with affiliated corporation, by corporate guardian as violation of rule against self-dealing, 151 A.L.R. 905.
Power of guardian as to compromise of liquidated contract claim or money judgment, 155 A.L.R. 196.
Guardian's contract employing attorney as binding upon ward or his estate, 171 A.L.R. 468.
Power of guardian of incompetent to change beneficiaries in ward's life insurance policy, 21 A.L.R.2d 1191.
Liability of incompetent's estate for torts committed by guardian, committee or trustee in managing estate, 40 A.L.R.2d 1103.
Validity and enforceability of agreement to drop or compromise will contest or withdraw objections to probate, or of agreement to induce others to do so, 42 A.L.R.2d 1319.
Power of court to confirm sale of ward's property over objection of guardian, 43 A.L.R.2d 1445.
Power of guardian, committee or trustee of mental incompetent, after latter's death, to pay debts and obligations, 60 A.L.R.2d 963.
Effect of incompetency of joint depositor upon status and ownership of bank account, 62 A.L.R.2d 1091.
Waiver of attorney-client privilege by personal representative or heir of deceased client or by guardian of incompetent, 67 A.L.R.2d 1268.
Guardian's liability for interest on ward's funds, 72 A.L.R.2d 757.
Capacity of guardian to sue or be sued outside state where appointed, 94 A.L.R.2d 162.
Power to make charitable gifts from estate of incompetent, 99 A.L.R.2d 946.
Factors considered in making election for incompetent to take under or against will, 3 A.L.R.3d 6.
Time within which election must be made for incompetent to take under or against will, 3 A.L.R.3d 119.
Who may make election for incompetent to take under or against will, 21 A.L.R.3d 320.
Power of court or guardian to make noncharitable gifts or allowances out of funds of incompetent ward, 24 A.L.R.3d 863.
Right of guardian or committee of incompetent to incur obligations so as to bind incompetent or his estate, or to make expenditures, without approval by court, 63 A.L.R.3d 780.
Guardian's authority, without seeking court approval, to exercise ward's right to revoke trust, 53 A.L.R.4th 1297.
Validity of inter vivos gift by ward to guardian or conservator, 70 A.L.R.4th 499.
Involuntary disclosure or surrender of will prior to testator's death, 75 A.L.R.4th 1144.
Ademption or revocation of specific devise or bequest by guardian, committee, conservator or trustee of mentally or physically incompetent testator, 84 A.L.R.4th 462.
Propriety of surgically invading incompetent or minor for benefit of third party, 4 A.L.R.5th 1000.
Power of incompetent spouse's guardian or representative to sue for granting or vacation of divorce or annulment of marriage, or to make compromise or settlement in such suit, 32 A.L.R.5th 673.
14 C.J.S. Chemical Dependents § 4; 49 C.J.S. Insane Persons § 49.