A 'Bill of Right' unveiled for guardianships in New Mexico

More men than women had legal guardians last year in New Mexico. The biggest age group wasn’t the elderly, but those between 31 and 50 years old. And four people with guardians were 101 years old or older.

The data provided by the state Administrative Office of the Courts is now routinely collected each year. But some seven years ago, New Mexico state courts couldn’t say how many people had been appointed guardians to help manage their lives or finances. Tracking was so inconsistent that in Bernalillo County, for instance, two special masters undertook spot checking of cases, and even made home visits, to make sure those under guardianship were still alive.

Guardianship is considered the last resort for a person deemed by a state court judge to lack capacity to make his or her own decisions. A guardian, more often than not, is a family member. But about a quarter of appointed guardians last year were professionals who are paid to make personal and/or property decisions on behalf of an individual, according to the latest review of cases representing the time period from January 2024 to December 2024.

Last year, 5,130 people in New Mexico had legal guardians, the AOC data shows. Fifty-seven percent were men, while 43% were women.

Though guardianships are more typically associated with senior citizens, court case reviews showed the biggest group in New Mexico last year was between 31 and 50 years old. The total in that category was 1,841, followed by 1,342 ages 18 to 30; 1,127 between 51 and 70; and 820 ages 71 and older.

‘Treated with dignity’

Several waves of legal reforms have been enacted since 2018, after the Journal began an ongoing investigation into the legal process that critics complained was ripe for corruption given the power granted to court-appointed guardians and conservators.

The ensuing reforms emphasized more oversight and monitoring of guardians and conservators to protect against neglect, abuse and exploitation. Incapacitated people in guardianships were called “protected persons.”

Although the guardianship system removes many of a person’s fundamental rights, the state Supreme Court has endorsed a “Bill of Rights” setting out what rights the thousands of New Mexicans with court-appointed guardians still retain.

“So many people who are the subject of a guardianship, a protected person, are not in a position to cull the statutes to understand what their rights are,” said state Supreme Court Justice Shannon Bacon, a member of an interdisciplinary working group that created New Mexico’s Bill of Rights.

She said New Mexico’s version tries to simplify the basics and make them easy to read.

For instance, Bacon said, those under guardianships have a right to hire a lawyer. That can be helpful in the sometimes contentious cases, such as those that involve family members or other issues.

Among other rights, protected persons can attend and take part in all court hearings. They also have the right to tell the judge on the case their concerns or complaints about the guardianship and to be included in decision-making.

“If there is a question about what you can do, you have the right to have a qualified person of your choice evaluate your abilities and see if some, or all, of your rights can be restored,” the Bill of Rights states.

And protected persons have the right to ask the court to review whether the guardianship should change, continue, or end, and “can ask if your guardian is right for you,” states another of the 21 rights outlined.

“It’s important to remember they (protected individuals) should be treated with dignity,” Bacon added.

Bacon said the new Bill of Rights is posted on the state Supreme Court website, and will be disseminated to New Mexico lawyers and others involved in the guardianship process. “I will be encouraging that district judges post these in their courtrooms,” she added.

Other proposed improvements endorsed by the Supreme Court died in committee during the recent state legislative session. One would have set out what should happen when a protected person dies and doesn’t have heirs. Another measure that failed pertained to waivers of liability for conservators appointed to make financial decisions.

Bacon said New Mexico has become a leader in enacting guardianship reforms. Nationwide, the American Bar Association estimates from 1 million to 3 million people have had a guardian appointed due to age-related cognitive decline, dementia, disability, traumatic brain injury or other circumstances.

“I’m very proud of what New Mexico has done in changing the structure of adult guardianships,” Bacon said.