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Guardianships and Conservatorships for People with Brain Injury

Guardianship in the state of New Mexico

After a severe brain injury or other catastrophic injury, the injured person and their family is confronted with a number of serious problems. Among the more significant problems are those concerning how to manage the injured persons affairs, and how to obtain proper medical treatment and insurance benefits. A formal guardianship is often necessary so that decisions can be made and family matters attended to in a manner which is recognized by health care providers, insurance companies and by the public in general. This page will review guardianship law in New Mexico so that brain injured persons and their families will have an overview of its purposes and procedures, and will have a better sense of when they should seek a guardianship.

Purpose of Guardianship

New Mexico law states: Guardianship for an incapacitated person shall be used only 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. In accordance with this purpose, a 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.

Unless limited by the court in specific ways, the guardian of an incapacitated person has the same powers, rights, and duties in respect to the incapacitated person that a parent has in respect to his or her unemancipated child. A guardian is not, however, legally obligated to provide from his or her own funds for the incapacitated person, and is not liable to third persons for acts of the incapacitated person solely by reason of the guardianship.

A person for whom a limited guardian has been appointed retains all legal and civil rights except those which have been specifically granted to the limited guardian by the court. A limited guardian shall exercise his or her supervisory powers in the least restrictive manner consistent with the order of the court.

When may a person need a guardian?

Incapacitated is not incompetent. An injured or ill person will qualify for a guardianship when he or she is partially or completely unable to manage his or her personal care or to manage his or her estate or financial affairs or both.


A person does not have to be “incompetent” to need a guardian; instead, the law’s focus is on “incapacity,” meaning inability. The New Mexico statute’s full definition of an incapacitated person for guardianship is a person who demonstrates over time either partial or complete inability to manage their personal care or affairs by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, except minority, to the extent that he or she is unable to manage their personal affairs or they are unable to manage their estate or financial affairs or both.

Who may be appointed guardian?

New Mexico law lists persons having priority for appointment as guardian. The order of priority is this: a guardian appointed by a court of another state; any person nominated to serve as guardian in a document signed by the incapacitated person before his or her incapacity; the spouse of the incapacitated person; an adult child; a parent; a relative with whom the incapacitated person has resided for at least six months prior to the guardianship petition; a person nominated by the person who is caring for the incapacitated person or paying benefits to him or her; and any other person.The court may pass over a person having priority and appoint a person having a lower priority if it is in the best interest of the incapacitated person.

Procedures for appointing a guardian


A parent of an unmarried incapacitated person (that is, a person who is partially or completely unable to manage his or her personal care or financial affairs) may appoint a guardian of the incapacitated person by will.

Likewise, the spouse of a married incapacitated person may also appoint a guardian for that person by will. In either case, the appointment becomes effective after the appointed guardian files an acceptance of appointment in the court where the will is probated. An effective appointment by a spouse takes priority over an appointment by a parent.

It is also possible for a parent or a spouse of an incapacitated person to appoint a guardian in a writing which is not a will. That writing, however, will have to meet certain legal formalities to be effective, so a parent or spouse wishing to do this should consult with an attorney about it.


Any interested person may file a petition for appointment of a person to serve as guardian for an incapacitated person. Under the statute the petition must contain certain required information.

After the filing of a petition, the court must appoint an attorney to represent the incapacitated person unless that person already has an attorney of his or her own choice. In addition, after the petition for appointment of a guardian is filed with the court, the court must appoint a qualified healthcare professional who is required to submit a written report to the court describing the nature and degree of the incapacitated person’s incapacity and containing observations made by the healthcare professional concerning the incapacitated person’s ability to make healthcare decisions and to manage their daily living.


Finally, the court must also appoint a “visitor” who must interview the person seeking appointment as guardian and also must interview the incapacitated person for whom the guardianship is sought. That visitor must also visit the place where the incapacitated person resides as well as any place where it is proposed that the person will be detained or will reside. The visitor must evaluate the needs of the person alleged to be incapacitated and must submit a written report to the court regarding the appropriateness of the appointment of the proposed guardian.

The incapacitated person must be present at the court hearing where the person is to be determined incapacitated, unless the court determines by evidence that it is not in the incapacitated person’s best interest to be present because of a threat to the person’s own health or safety or that of others.


Furthermore, the court may conduct hearings at the location of an incapacitated person who is unable to be present in court.

If the court determines that the person for whom a guardian is sought is totally incapacitated or is incapacitated only in specific areas, the court may appoint a guardian if it is necessary as a means of providing continuing care, supervision, and rehabilitation of the incapacitated person; and if there are no available alternative resources that are suitable for the person’s welfare, safety, and rehabilitation.


The guardianship must be as least restrictive as possible in terms of preserving the civil rights and liberties of the incapacitated person.


Very importantly, the proposed guardian must be qualified and suitable to serve as guardian, and must be willing to serve.


In any proceeding for the appointment of or removal of a guardian of an incapacitated person (other than the appointment of a temporary guardian or temporary suspension of a guardian), written notice of the hearing and a copy of the petition and any court orders already entered must be given to the alleged incapacitated person and to that person’s spouse, parents, and adult children, or if there are no adult children, at least to one of his or her closest adult relatives if any can be found. Notice must also be given to any person who is already serving as the guardian or conservator of the incapacitated person.


When a petition for guardianship has been filed, but there is not time to go through the regular statutory procedures because of possible immediate and irreparable harm to the alleged incapacitated person’s physical health, the court may appoint a temporary guardian prior to the final hearing on the petition. The duration of the temporary guardianship cannot exceed sixty days, although in certain circumstances this may be extended for another thirty days.


Guardianship is often necessary to manage the healthcare and living situation of a brain injured or otherwise severely injured person.


If you would like a copy of this article feel free to call the Tiwald Law offices at (505) 883-4133 in Albuquerque.


Please note: The information on this website is not meant to replace the advice of a medical professional. You should consult your health care provider regarding specific medical concerns or treatment.

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