In New Mexico, when a person becomes incapacitated – that is, unable to make sound decisions regarding his or her day-to-day personal and financial affairs – a state district court judge may appoint a guardian and/or conservator.
A guardian manages the protected person’s daily needs such as food, shelter, activities and medical care. A conservator manages the protected person’s financial concerns. A protected person might need only a guardian, and sometimes a conservator, as well. One person may serve as both guardian and conservator, and sometimes separate individuals fill these two roles.
Generally, a concerned individual will file a petition with the court alleging incapacitation. The court will appoint professionals to investigate the claim, including a guardian ad litem who represents the protected person, and a court visitor and a qualified health care provider, both of whom interview the protected person. All three submit written recommendations to the court as to whether a guardian and/or conservator is necessary.
The court then sets the matter for a hearing. The protected person is present and is represented by the guardian ad litem. The court must find by clear and convincing evidence that the protected person is incapacitated to a level requiring a guardian and/or conservator. Also, the court must order the least restrictive conditions possible. For example, someone might need help from a guardian in managing only some day-to-day decisions.
A court-appointed guardian and/or conservator can be a family member, a friend or a professionally trained individual. If the court makes an appointment, it then decides whether a bond is necessary to safeguard the interests of the protected person.
As the guardian and/or conservator begin to manage the affairs of the protected person, they are required to submit annual reports to the assigned judge. These reports are designed to confirm that the protected person still needs a guardian and/or conservator, and that his or her interests are being protected.
In recent years, investigative reporting has revealed abuse and neglect of, and theft from, protected persons by the very people appointed to care for them. The New Mexico Legislature, the judiciary and the New Mexico Attorney General’s Office are working together to prevent future abuses from occurring.
Some judges utilize computer programs to manage their guardianship and conservatorship cases. We can tell at a glance whether reports are due or missing. We can also detect potential problems. If we suspect complications, we immediately set the matter for a hearing.
The Attorney General’s Office, meanwhile, has audited reports from conservators, alerting judges to any accounting irregularities. And attorneys at the New Mexico Office of Guardianship have consistently apprised judges of concerns and potential problems.
People close to the protected person, as well, can and should alert the court of problems concerning a guardian or conservator. If family members or friends suspect that a protected person’s personal and/or financial well-being is at risk, they can file a grievance and the court will set the matter for a hearing. It is absolutely crucial that family and friends alert the courts of any such actual or suspected misconduct.
The vast majority of guardians and conservators in the cases to which I have been assigned are good, decent and selfless individuals who take on the serious and often thankless role of caring for someone who cannot care for himself or herself.
We have an effective structure in place to care for incapacitated individuals. If we all work together, we can detect and prevent abuse, and we can guarantee the dignity and safety these protected people need and deserve.
I wish everyone a peaceful and happy holiday season and a banner new year. May 2023 blow your socks off!
Judge Daniel Ramczyk is a judge of the 2nd Judicial District Court. Opinions expressed here are solely those of the judge individually and not those of the court.
