There are many families who are in the position to be caring for an adult who is incapable of living life on his or her own.  These wonderful parents, grandparents, or other devoted family members want to ensure that the person will continue to receive excellent care after they are no longer able to provide it.  They also want to be certain that the autonomy and self-reliance enjoyed by their loved one is preserved. They may use their wills to appoint a guardian to be responsible for decision-making or other duties undertaken on behalf of the impaired or incapacitated individual.

In New Mexico, guardianship for an incapacitated individual is meant to be used only as necessary to protect the wellbeing of the individual.  This type of regulated oversight is intended to promote self-reliance and independence and is in place only to the extent required by the physical and mental limitations experienced by the incapacitated individual.  The person retains any and all rights except those that a court order has specifically limited and granted to the guardian.

The parent or legal guardian may make the appointment in a will with the attesting signature of at least two witnesses.  After the death of the parent or guardian, the appointment of a guardian may become effective:

  • After seven days notice, in writing, is given to the incapacitated individual, the person caring for that individual, or the closest adult relative; and
  • An acceptance by the guardian is filed in the court in which the will is probated or in the court in the jurisdiction in which the incapacitated individual resides if the document appointing the guardian is a non-testamentary form.

The notice of appointment of guardianship must state that the appointment may be terminated through the filing of a written objection in the court having jurisdiction over the matter.

A spouse also may be in the position to need to address guardianship in a will or non-testamentary and would follow the same procedure outlined above.

The procedure to have a court appoint a guardian for an incapacitated individual involves a series of steps due to the serious nature of what is being determined.  Any interested party can file a petition for the appointment of someone to act as a guardian for an individual alleged to be incapacitated under the Uniform Probate Code.  The petition must include the following information:

  • The name, age, and address of the person alleged to be incapacitated;
  • The nature of the incapacitation, specifically detailing physical and mental limitations and the justification for the guardianship;
  • Any limitations in the scope of the guardianship;
  • Whether or not a guardian already has been appointed or is acting in any way for the incapacitated individual;
  • All known contact information for the proposed guardian;
  • All contact information for those individuals most closely related to the incapacitated person  by blood or marriage;
  • The name and address of the individual or institution with current care or custody of the incapacitated individual;
  • The names and contact information for any other individuals over whom the proposed guardian may have guardianship;
  • The purpose behind the appointment of the guardian and what petitioner’s interest is in the appointment;
  • What previous actions have been taken to find less restrictive solutions for the incapacitated person before steps were taken for guardianship; and
  • The qualifications of the guardian.

The individual for whom the guardian is being appointed shall be present when the court considers the petition unless the hearing would be detrimental to the incapacitated person or others present in the courtroom.  Once the court has approved the guardianship, or the testamentary appointment of a guardian is approved, the guardian consents to personal jurisdiction in the court for any future proceedings relating to the guardianship.

Using a testamentary instrument to set up a guardianship involves a complicated analysis in order to ensure that your wishes are carried out appropriately.  Consulting experienced estate attorneys will guarantee the future that you want for your loved ones.

The above information is provided to illustrate general principles of law and should not be interpreted as a specific legal opinion on an individual case.  You should contact experienced legal counsel to get specific legal advice that is based upon your specific circumstances.

If you have a child or loved one who has special needs, you need to make sure he is provided for in the event that you no longer are around to watch out for him.  The New Mexico estate planning law firm of Jay Goodman & Associates, PC offers a free consultation in our offices in Santa Fe and Albuquerque.  We can evaluate your estate planning issues and guardianship needs and explain your options.  In order to schedule your free consultation, please call us at (505) 989-8117.


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