Guardianships And Conservatorships

Guardianships And Conservatorships Presented by Jay Goodman, Esq. of Jay Goodman, Attorney at Law, P.C. 460 St. Michaels Drive, Suite 601, Santa Fe, NM 87505 (505) 989-8117

Disclaimer • This documentation is designed to provide general information regarding Guardianships and Conservatorships, it is not all inclusive. • This documentation is provided with the understanding that the presenter is not engaged in rendering legal or other professional services. • Should you require legal advice or other expert assistance, the service of a professional should be sought as the information provided is not a substitute for such assistance. 2

Topics • New Mexico Law on Guardianships and Conservatorships • What is a Guardian • What is a Conservator • Incapacitated Person Defined • Duties of a Guardian • Duties of a Conservator • The Guardianship Process • Guardian Ad Litem • Visitor • Qualified Health Care Provider • Providing For The Future Needs of an AIP • Hearing • Removal of a Guardian and Conservator • Sample Forms 3

New Mexico Law • The governing law with respect to the appointment of guardians and conservators for incapacitated persons can be found at CHAPTER 45 of the UNIFORM PROBATE CODE (NMSA). Specifically, ARTICLE 5 provides for the PROTECTION OF PERSONS UNDER DISABILITY AND THEIR PROPERTY. • The law in New Mexico provides that a guardianship for an incapacitated person is only to be “used as is necessary to promote and to protect the well being of the person, shall be designed to encourage the development of maximum self reliance and independence of the person and shall be ordered only to the extent necessitated by the person's actual functional mental and physical limitations. An incapacitated person for whom a guardian has been appointed retains all legal and civil rights except those which have been expressly limited by court order or have been specifically granted to the guardian by the court.” 45-5-301.1. 4

Because guardianships represent a drastic loss of fundamental civil rights for the alleged incapacitated person, certain procedures must be followed in order to obtain a guardianship and conservatorship. • Protective actions emphasize notice and other due process rights of the alleged incapacitated person; the least restrictive alternative to a guardianship or conservatorship; and limited or temporary guardianship where appropriate. • In NM the court’s encourage the individual’s independence and will limit the powers of a guardian if necessary. 5

What is a Guardian? • A guardian can be “temporary” or “permanent” • Generally, a Guardian is a person named to protect the health (make personal and health care decisions) and well being of a person or, in certain cases, to pursue a lawsuit for the support of an incapacitated person. • By definition a guardian is “a person who has qualified to provide for the care, custody or control of the person of a minor or incapacitated person by either testamentary or court appointment. • Personal care decisions cover things such as medical care, nutrition, clothing, shelter, hygiene or safety. • Petitioners may petition for co-guardianship and co-conservatorship 6

Why obtain a guardianship? • A person is incapacitated and he/she can no longer make health care, personal and/or business decisions • A person poses a harm to himself/herself or others • A developmentally disabled child has reached the age of majority (18) 7

What is a Guardian? (Continued) • Temporary: A temporary guardianship remains in place for 60 days unless extended by agreement. The powers of the guardian are limited to matters in a Court Order. • Permanent: Can be full or limited. 8

What is a Conservator? • By definition a conservator is a person who is appointed by a court to manage the property or financial affairs or both of an incapacitated person or a minor ward. • A conservator is named for a person who cannot manage his/her property or finances on their own. 9

What is a conservator? (Continued) • Responsibilities: • Locating and managing the conservatee’s finances; • Making sure the conservatee’s bills are paid; • Investing his/her money wisely; • Making sure his/her property is safe; • Seeing that the conservatee is receiving all the income and benefits he/she qualifies for (Medicare, Medicaid and other public benefits) and is entitled to; • Filing tax returns on time; • Budget for the conservatee to make sure his/her needs are met; • Keep accurate and careful records; • Report and Account to the Court and others; and • Keep Conservatee’s finances separate. • A Conservator cannot create a will or trust for the conservatee. 10

Incapacitated Person Defined • An Incapacitated person is someone who shows either partial or complete functional impairment due to mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, such that he/she cannot manage his/her personal affairs or is unable to manage his/her estate or financial affairs. • A persons inability to manage his/her personal care means “the inability, as evidenced by recent behavior, to meet his/her needs for medical care, nutrition, clothing, shelter, hygiene or safety so that physical injury, illness or disease has occurred or is likely to occur absent court intervention and appointment of a guardian. • A persons inability to manage his/her estate or financial affairs or both means gross mismanagement, as can be seen by recent behavior, of one's income and resources or medical inability to manage one's income and resources that has led or is likely to lead to financial vulnerability or exploitation absent court intervention and appointment of a conservator. 11

What are the duties of a guardian? • A full guardian of an incapacitated person has the same powers, rights and duties that a parent has over his/her unemancipated minor child, except that a guardian is not legally obligated to provide from his/her own funds for the incapacitated person and is not liable to third persons for acts of the incapacitated person just because he/she is the guardian (unless the guardian was/is negligent). 12

What are the duties of a guardian? (Continued) • A guardian has the following powers: • A guardian is entitled to custody of the incapacitated person and may establish the incapacitated person's place of residence; • If entitled to custody of the incapacitated person, a guardian shall make provision for the care, comfort and maintenance of the incapacitated person and, if appropriate, arrange for his/her training and education. The guardian must take reasonable care of the incapacitated person's clothing, furniture, vehicles and other personal property; • Make health-care decisions (Under the provisions of the Uniform Health-Care Decisions Act). • The guardian must exercise his/her powers over the incapacitated person in a way that is the least restrictive of that persons freedom while keeping in mind the need for supervision. • A guardian is entitled to receive reasonable sums for his/her services and for room and board furnished to the incapacitated person. 13

What are the duties of a Conservator? • A conservator is a fiduciary and must observe the standards of care applicable to trustees. • The Standard of care applicable to trustees requires that the trustee observe the “standards in dealing with the trust assets that would be observed by a prudent man dealing with the property of another.” If the trustee has special skills he/she is under a duty to use those skills. NMSA 45-7-302. 14

The Guardianship Process • The guardianship process begins with the filing of a Petition by an interested person in the District Court along with a Request For Hearing. • A Notice of Hearing setting a time, date and place for a hearing is set by the Court. Section 45-5-309 NMSA 1978 • Notice is of critical importance. Notice must be sent to the next of kin (related by blood or marriage) 15

The Guardianship Process Continued • The petition must contain the following: • (1) the name, age and address of the alleged incapacitated person; • (2) the functional limitations, the physical and mental condition of the alleged incapacitated person and the basis for seeking guardianship; • (3) if a limited guardianship is sought, the limitations requested; • (4) whether a guardian has been appointed previously; • (5) the name and address of the proposed guardian; 16

The Guardianship Process Continued • (6) the names and addresses of the persons most closely related by blood or marriage to the alleged incapacitated person; • (7) the name and address of the person or entity having the care and custody of the alleged incapacitated person; • (8) Whether the proposed guardian is acting for any other incapacitated person; • (9) The basis for seeking guardianship and the interest of the petitioner in the appointment; • (10) the steps taken to find less restrictive alternatives; and • (11) the qualifications of the proposed guardian. 17

The Guardianship Process Continued • After the petition is filed, the court must appoint the following parties: • Guardian Ad Litem to represent the alleged incapacitated person; • A Visitor; and • A Qualified Health Care Provider. 18

Guardian Ad Litem (GAL) • The GAL serves as the eyes and ears of the Court. • NMSA Section 45-5-303.1 sets forth the duties of a GAL. • (1) interview (in person) the alleged incapacitated person before the hearing; • (2) present the alleged incapacitated person's position to the court; • (3) interview the qualified health care professional, the visitor and the proposed guardian; • (4) review the medical report submitted by the qualified health care professional and the report by the visitor; and • (5) obtain independent medical or psychological assessments, if necessary. • The duties of the GAL terminate when a guardian is appointed and the appointment is accepted by the guardian. 19

Visitor • The visitor may be a social worker, psychologist, educator or other person who has the expertise to evaluate the needs of the allegedly incapacitated person. • The duties of the visitor are: • (1) To interview the person seeking appointment as guardian and conservator; • (2) Interview the alleged incapacitated person; • (3) Speak with the Qualified Healthcare Provider and Guardian Ad Litem; • (4) Visit the residence of the alleged incapacitated person and the proposed guardian(s); • (5) Interview the proposed successor guardian and conservator (if any); and • (6) Write a detailed Evaluation/Report/Affidavit for submission to the Court. 20

Qualified Health Care Provider (QHCP) • The QHCP is usually the alleged incapacitated persons physician. • The QHCP may be a nurse practitioner or physician. • The QHCP must examine the person to be protected and submit his/her findings to the Court (Usually by Affidavit). • The QHCP may need to testify in Court (Rarely) 21

Providing for the Future Needs of the Alleged Incapacitated Person • The Petitioner(s) should consider whether to have a successor appointed and may petition the Court to pre-approve a successor guardian and/or conservator. • A successor is one whose role arises when the initial guardian is unable or unwilling to serve. • Approval of a successor guardian/conservator provides for the future care of the alleged incapacitated person without having to go through a full fledged guardianship proceeding in the future. 22

Hearing • To determine whether a guardian and conservator should be appointed; • If the alleged incapacitated person is in need of a guardian, the Court will also consider whether the proposed guardian(s) should be appointed; • The Court has discretion to appoint some other qualified person as guardian and/or to limit the powers and duties of the guardian to allow the alleged incapacitated to retain control over certain activities. • Hearings are closed to the public due to their nature 23

Removal of Guardian and/or Conservator • The incapacitated person or any person interested in his/her welfare may petition for an order that he/she is no longer incapacitated and for removal or resignation of the guardian. • A request must be made to the court to have a guardian removed or to resign. • A visitor and qualified health care provider must be appointed to examine the incapacitated person before removal of the guardian and conservator. • A guardian and/or conservator may also resign or be terminated by petitioning the court. 24

Application and Order For Free Process; (Sample Provided) Petition For Appointment of Guardian and Conservator; (Sample Provided) Order Appointing Guardian Ad Litem (Sample Provided); Request For Hearing; Notice of Hearing (Sample Provided); Order Appointing Visitor (Sample Provided); Consent to Serve as Guardian ad Litem; Acceptance of Service for Guardian ad Litem; Affidavit of QHCP (Sample Provided); Stipulation for submission to Next of Kin (Sample Provided); Acceptance of Appointment (signed by the guardian) (Sample Provided); Order Appointing Guardian and Conservator; Letters of Guardianship and Conservatorship (Sample Provided); and Prepare Blank Report of Guardian and Conservator for submission by guardians w/in 90 days of appointment (Sample Provided) Forms to be Filed and/or Completed 25

Guardianships And Conservatorships