§ 45-5-303 — Procedure for court appointment of a guardian of an

incapacitated person. A. An interested person may petition for appointment of a guardian for an alleged incapacitated person. B. A petition under Subsection A of this section shall state the petitioner's name, principal residence, current street address, if different, relationship to the alleged incapacitated person, interest in the appointment, the name and address of any attorney representing the petitioner and, to the extent known, the following: (1) the alleged incapacitated person's name, age, principal residence, current street address, if different, and, if different, address of the dwelling in which it is proposed that the alleged incapacitated person will reside if the petition is granted; (2) the name and address of the alleged incapacitated person's: (a) spouse, or, if the alleged incapacitated person has none, an adult with whom the alleged incapacitated person is in a long-term relationship of indefinite duration in which the individual has demonstrated an actual commitment to the alleged incapacitated person similar to the commitment of a spouse and in which the individual and the alleged incapacitated person consider themselves to be responsible for each other's well-being; (b) adult children or, if none, each parent and adult sibling of the alleged incapacitated person or, if none, at least one adult nearest in kinship to the alleged incapacitated person who can be found with reasonable diligence; and (c) adult stepchildren whom the alleged incapacitated person actively parented during the stepchildren's minor years and with whom the alleged incapacitated person had an ongoing relationship in the two-year period immediately preceding the filing of the petition; (3) the name and current address of each of the following, if applicable: (a) a person responsible for care of the alleged incapacitated person; (b) any attorney currently representing the alleged incapacitated person; (c) any representative payee appointed by the federal social security administration for the alleged incapacitated person; (d) a guardian or conservator acting for the alleged incapacitated person in New Mexico or in another jurisdiction; (e) a trustee or custodian of a trust or custodianship of which the alleged incapacitated person is a beneficiary; (f) any fiduciary for the alleged incapacitated person appointed by the federal department of veterans affairs; (g) an agent designated under a power of attorney for health care in which the alleged incapacitated person is identified as the principal; (h) an agent designated under a power of attorney for finances in which the alleged incapacitated person is identified as the principal; (i) a person nominated as guardian by the alleged incapacitated person; (j) a person nominated as guardian by the alleged incapacitated person's parent or spouse in a will or other signed record; (k) a proposed guardian and the reason the proposed guardian should be selected; and (l) a person known to have routinely assisted the alleged incapacitated person with decision making during the six months immediately preceding the filing of the petition; (4) the reason a guardianship is necessary, including a brief description of: (a) the nature and extent of the alleged incapacitated person's alleged need; (b) any least restrictive alternative for meeting the alleged incapacitated person's alleged need that has been considered or implemented; (c) if no least restrictive alternative has been considered or implemented, the reason it has not been considered or implemented; and (d) the reason a least restrictive alternative instead of guardianship is insufficient to meet the alleged incapacitated person's alleged need; (5) whether the petitioner seeks a limited guardianship or full guardianship; (6) if the petitioner seeks a full guardianship, the reason a limited guardianship or protective arrangement instead of guardianship is not appropriate; (7) if a limited guardianship is requested, the powers to be granted to the guardian; (8) the name and current address, if known, of any person with whom the petitioner seeks to limit the alleged incapacitated person's contact; (9) if the alleged incapacitated person has property other than personal effects, a general statement of the alleged incapacitated person's property, with an estimate of its value, including any insurance or pension, and the source and amount of other anticipated income or receipts; and (10) whether the alleged incapacitated person needs an interpreter, translator or other form of support to communicate effectively with the court or understand court proceedings. C. Notice of a petition under this section for the appointment of a guardian and the hearing on the petition shall be given as provided in Section 45-5-309 NMSA 1978. D. After the filing of a petition, the court shall set a date for hearing on the issues raised by the petition. Unless an alleged incapacitated person already has an attorney of the alleged incapacitated person's own choice, the court shall appoint an attorney to represent the alleged incapacitated person. The court-appointed attorney in the proceeding shall have the duties of a guardian ad litem, as set forth in Section 45-5- 303.1 NMSA 1978. E. The person alleged to be incapacitated shall be examined by a qualified health care professional appointed by the court who shall submit a report in writing to the court. The report shall: (1) describe the nature and degree of the alleged incapacitated person's incapacity, if any, and the level of the alleged incapacitated person's intellectual, developmental and social functioning; and (2) contain observations, with supporting data, regarding the alleged incapacitated person's ability to make health care decisions and manage the activities of daily living. F. The court shall appoint a visitor who shall interview the person seeking appointment as guardian and the person alleged to be incapacitated. The visitor shall also visit the present place of abode of the person alleged to be incapacitated and the place where it is proposed the alleged incapacitated person will be detained or reside if the requested appointment is made. The visitor shall evaluate the needs of the person alleged to be incapacitated and shall submit a written report to the court. The report shall include a recommendation regarding the appropriateness of the appointment of the proposed guardian. The report to the court shall also include recommendations regarding: (1) those aspects of personal care that the alleged incapacitated person can manage without supervision or assistance; (2) those aspects of personal care that the alleged incapacitated person could manage with the supervision or assistance of support services and benefits; and (3) those aspects of personal care that the alleged incapacitated person is unable to manage without the supervision of a guardian. Unless otherwise ordered by the court, the appointment of the visitor terminates and the visitor is discharged from the visitor's duties upon entry of an order appointing a guardian and acceptance of the appointment by the guardian. G. A person alleged to be incapacitated shall be present at the hearing on the issues raised by the petition and any response to the petition unless the court determines by evidence that it is not in the alleged incapacitated person's best interest to be present because of a threat to the health or safety of the alleged incapacitated person or others as determined by the court. At a hearing conducted pursuant to this section, the person alleged to be incapacitated may: (1) present evidence and subpoena witnesses and documents; (2) examine witnesses, including a court-appointed guardian ad litem, qualified health care professional and visitor; and (3) otherwise participate in the hearing. H. The court upon request or its own motion may conduct hearings at the location of the alleged incapacitated person who is unable to be present in court. I. The rules of evidence shall apply and no hearsay evidence that is not otherwise admissible in a court shall be admitted into evidence except as otherwise provided in this article. There is a legal presumption of capacity, and the burden of proof shall be on the petitioner to prove the allegations set forth in the petition. Such proof shall be established by clear and convincing evidence. J. The existence of a proceeding for or the existence of a guardianship for an adult is a matter of public record unless the court seals the record after: (1) the alleged incapacitated person or individual subject to guardianship requests that the record be sealed; and (2) either: (a) the petition for guardianship is dismissed; or (b) the guardianship is terminated. K. An alleged incapacitated person or the protected person subject to a proceeding for a guardianship, whether or not a guardian is appointed, an attorney designated by the alleged incapacitated person or the protected person and a person entitled to notice are entitled to access court records of the proceeding and resulting guardianship. A person not otherwise entitled to access court records under this subsection for good cause may petition the court for access to court records of the guardianship. The court shall grant access if access is in the best interest of the alleged incapacitated person or the protected person or furthers the public interest and does not endanger the welfare or financial interests of the alleged incapacitated person or the protected person. L. A report pursuant to Subsections E and F of this section or a written report filed pursuant to Section 45-5-303.1 or 45-5-314 NMSA 1978 is confidential and shall be sealed on filing, but is available to: (1) the court; (2) the alleged incapacitated person who is the subject of the report or evaluation, without limitation as to use; (3) the petitioner, visitor, guardian ad litem and an attorney of record for purposes of the proceeding; (4) unless the court orders otherwise, an agent appointed under a power of attorney for health care or power of attorney for finances in which the alleged incapacitated person is the principal; and (5) any other person if it is in the public interest, as determined by the court, or for a purpose the court orders for good cause. M. Notwithstanding the provisions of Subsection J of this section, a disclosure of information shall not include diagnostic information, treatment information or other medical or psychological information. N. The issue of whether a guardian shall be appointed for the alleged incapacitated person shall be determined by the court at an open hearing unless, for good cause, the court determines otherwise. O. Upon request of the petitioner or alleged incapacitated person, the court shall schedule a jury trial.

Legislative History

1953 Comp., § 5-303, enacted by Laws 1975, ch. 257, § 5-303; repealed and