Although guardianship and conservatorship of an adult does not technically fall under the family law umbrella, these cases face many of the same challenges and family dynamics faced by those in family law court. Guardianship and conservatorship cases fall under probate law and will be assigned to a civil court judge. There may be concerns regarding an adult who is incapable of making his or her own health or financial decisions—such as an elderly or handicapped parent or sibling. Because of the inability to make health or financial decisions, certain persons could ask the Court to appoint an individual or corporation to act as a guardian, making healthcare decisions or a conservator to make financial decisions for the person in question.

A New Mexico attorney familiar with guardianship/conservator law can help make the process much smoother for all those involved when litigation becomes a necessity. The guardianship and conservatorship process can be both costly and time-consuming, since prior to such an appointment it must be determined by several professionals whether the person in question is actually incapacitated. Despite the fact that the guardianship and conservatorship process can be complex, completing this process can ease family tensions as the loved one will receive proper healthcare and financial protection from anyone who might have taken advantage.

Differences Between a Guardianship and Conservatorship

The primary difference between a guardianship and conservatorship is that a guardian is designated to make personal or medical decisions for an incapacitated person, while a conservator is designated to make financial decisions for an incapacitated person. Both guardianships and conservatorships are often used for children who are turning 18 and have significant cognitive disabilities, as well as for adults who, because of an injury or illness, are no longer able to make necessary financial and healthcare decisions for himself or herself. In the case of an adult, the disability could be the result of a diagnosis of dementia or Alzheimer’s, or a medical event such as a stroke or traumatic brain injury.

A Guardian:

  • Ensures the protected person is receiving the care he or she needs, including the coordination of medical care or the consent to surgical procedures, medications or medical tests.
  • May also be responsible for securing residential placement for the protected person based on that person’s abilities and/or needs. This residential placement could include a group home, living with the guardian at his or her home, a family living provider, an assisted living facility, an independent living facility, a nursing home, or even the protected person’s home with necessary supplemental care and assistance provided.
  • Responsibilities also include the safety of the protected person as well as the management of services for the protected person such as cleaning services, nursing care, health care and cooking services.
  • Is not personally financially responsible for services or medical treatment for the protected person, nor is a guardian liable for any actions on the part of the protected person.

A Conservator:

  • Is responsible for collecting income or benefits for the protected person, such as pension or retirement benefits, governmental benefits or any income from another source.
  • Is responsible for paying the protected person’s bills, managing his or her financial accounts and investments, budgeting, and preparing the protected person’s taxes, or having them prepared.
  • Is not personally financially responsible for services for the protected person, nor is the conservator liable for any actions on the part of the protected person.

One person can serve as both conservator and guardian, or the roles can be separate. The court will look for the “least restrictive” role, meaning if there is any aspect of their own care an incapacitated person can manage on their own, the court will limit the guardian or conservator’s role so that the person has autonomy to the greatest extent possible.

How Family Law Court, Civil Court and Probate Court May All Be a Part of a Guardianship or Conservatorship

A conservatorship/guardianship may be established after a relative, friend or public official petitions the New Mexico District court for an appointment. The petition must contain information which fully details why the individual is unable to manage his or her affairs. After the petition is filed, three different professionals are appointed in the case: 1) a Guardian ad Litem to represent the best interests of the proposed incapacitated person, 2) a qualified healthcare professional to provide the court a medical analysis of incapacity, and 3) a court visitor to interview the proposed incapacitated person, conduct a home visit, and interview other parties. The qualified healthcare professional is often able to file the medical report with the court and is done with the case from that point. The Guardian ad Litem and court visitor will report his or her findings back to the court. Family members and other interested parties are notified of the proceedings and are allowed to participate in litigation.

Unless the subject of the conservatorship/guardianship is medically unable, he or she must appear in court. The court supervision associated with this litigation offers a higher degree of protection for the person than other types of financial management. The only role of the conservator and guardian is to protect the best interests of the individual, acting as a neutral party when family disputes arise. The incapacitated person has lost his or her independence and the power to make decisions, therefore this litigation should be reserved only for those who truly need protection.

When the issue of guardianship is for a minor child, the issue could begin in New Mexico probate court when the parents of a child have named a guardian for that child in their will. New Mexico law also allows spouses and parents to name in a will a guardian of their incapacitated spouse or adult child. If there is a named guardian in a will, that person can file in the probate case accepting appointment as guardian and provide written notice to the minor and the person caring for the minor or nearest adult relative.  

How an Albuquerque Guardianship Attorney Can Help

Because guardianships and conservatorships often involve the emotions of others, having an Albuquerque attorney by your side is crucial. An attorney from the Mulcahy Law Firm can fully explain the process of guardianship and/or conservatorship, then help you make the right decision for the future of your loved one. Contact an Albuquerque guardianship attorney from the Mulcahy Law Firm today.