N.M. Stat. § 45-5-303 (2026)

incapacitated person.
   A. An interested person may petition for appointment of a guardian for an alleged
incapacitated person.

    B. A petition under Subsection A of this section shall state the petitioner's name,
principal residence, current street address, if different, relationship to the alleged
incapacitated person, interest in the appointment, the name and address of any attorney
representing the petitioner and, to the extent known, the following:

       (1)   the alleged incapacitated person's name, age, principal residence, current
street address, if different, and, if different, address of the dwelling in which it is
proposed that the alleged incapacitated person will reside if the petition is granted;

       (2)      the name and address of the alleged incapacitated person's:

           (a) spouse, or, if the alleged incapacitated person has none, an adult with
whom the alleged incapacitated person is in a long-term relationship of indefinite
duration in which the individual has demonstrated an actual commitment to the alleged
incapacitated person similar to the commitment of a spouse and in which the individual
and the alleged incapacitated person consider themselves to be responsible for each
other's well-being;

          (b) adult children or, if none, each parent and adult sibling of the alleged
incapacitated person or, if none, at least one adult nearest in kinship to the alleged
incapacitated person who can be found with reasonable diligence; and

            (c) adult stepchildren whom the alleged incapacitated person actively
parented during the stepchildren's minor years and with whom the alleged incapacitated
person had an ongoing relationship in the two-year period immediately preceding the
filing of the petition;

       (3)      the name and current address of each of the following, if applicable:

             (a) a person responsible for care of the alleged incapacitated person;

             (b) any attorney currently representing the alleged incapacitated person;

          (c) any representative payee appointed by the federal social security
administration for the alleged incapacitated person;

        (d) a guardian or conservator acting for the alleged incapacitated person in
New Mexico or in another jurisdiction;

          (e) a trustee or custodian of a trust or custodianship of which the alleged
incapacitated person is a beneficiary;
        (f) any fiduciary for the alleged incapacitated person appointed by the federal
department of veterans affairs;

          (g) an agent designated under a power of attorney for health care in which the
alleged incapacitated person is identified as the principal;

          (h) an agent designated under a power of attorney for finances in which the
alleged incapacitated person is identified as the principal;

             (i) a person nominated as guardian by the alleged incapacitated person;

          (j) a person nominated as guardian by the alleged incapacitated person's
parent or spouse in a will or other signed record;

          (k) a proposed guardian and the reason the proposed guardian should be
selected; and

           (l) a person known to have routinely assisted the alleged incapacitated
person with decision making during the six months immediately preceding the filing of
the petition;

       (4)      the reason a guardianship is necessary, including a brief description of:

             (a) the nature and extent of the alleged incapacitated person's alleged need;

          (b) any least restrictive alternative for meeting the alleged incapacitated
person's alleged need that has been considered or implemented;

           (c) if no least restrictive alternative has been considered or implemented, the
reason it has not been considered or implemented; and

           (d) the reason a least restrictive alternative instead of guardianship is
insufficient to meet the alleged incapacitated person's alleged need;

       (5)      whether the petitioner seeks a limited guardianship or full guardianship;

      (6)    if the petitioner seeks a full guardianship, the reason a limited
guardianship or protective arrangement instead of guardianship is not appropriate;

      (7)       if a limited guardianship is requested, the powers to be granted to the
guardian;

        (8)   the name and current address, if known, of any person with whom the
petitioner seeks to limit the alleged incapacitated person's contact;
       (9)     if the alleged incapacitated person has property other than personal
effects, a general statement of the alleged incapacitated person's property, with an
estimate of its value, including any insurance or pension, and the source and amount of
other anticipated income or receipts; and

       (10) whether the alleged incapacitated person needs an interpreter, translator
or other form of support to communicate effectively with the court or understand court
proceedings.

   C. Notice of a petition under this section for the appointment of a guardian and the
hearing on the petition shall be given as provided in Section 45-5-309 NMSA 1978.

    D. After the filing of a petition, the court shall set a date for hearing on the issues
raised by the petition. Unless an alleged incapacitated person already has an attorney
of the alleged incapacitated person's own choice, the court shall appoint an attorney to
represent the alleged incapacitated person. The court-appointed attorney in the
proceeding shall have the duties of a guardian ad litem, as set forth in Section 45-5-
303.1 NMSA 1978.

   E. The person alleged to be incapacitated shall be examined by a qualified health
care professional appointed by the court who shall submit a report in writing to the court.
The report shall:

      (1)      describe the nature and degree of the alleged incapacitated person's
incapacity, if any, and the level of the alleged incapacitated person's intellectual,
developmental and social functioning; and

        (2)   contain observations, with supporting data, regarding the alleged
incapacitated person's ability to make health care decisions and manage the activities of
daily living.

    F. The court shall appoint a visitor who shall interview the person seeking
appointment as guardian and the person alleged to be incapacitated. The visitor shall
also visit the present place of abode of the person alleged to be incapacitated and the
place where it is proposed the alleged incapacitated person will be detained or reside if
the requested appointment is made. The visitor shall evaluate the needs of the person
alleged to be incapacitated and shall submit a written report to the court. The report
shall include a recommendation regarding the appropriateness of the appointment of
the proposed guardian. The report to the court shall also include recommendations
regarding:

     (1)    those aspects of personal care that the alleged incapacitated person can
manage without supervision or assistance;

     (2)    those aspects of personal care that the alleged incapacitated person could
manage with the supervision or assistance of support services and benefits; and
      (3)   those aspects of personal care that the alleged incapacitated person is
unable to manage without the supervision of a guardian.

   Unless otherwise ordered by the court, the appointment of the visitor terminates and
the visitor is discharged from the visitor's duties upon entry of an order appointing a
guardian and acceptance of the appointment by the guardian.

    G. A person alleged to be incapacitated shall be present at the hearing on the
issues raised by the petition and any response to the petition unless the court
determines by evidence that it is not in the alleged incapacitated person's best interest
to be present because of a threat to the health or safety of the alleged incapacitated
person or others as determined by the court. At a hearing conducted pursuant to this
section, the person alleged to be incapacitated may:

       (1)      present evidence and subpoena witnesses and documents;

        (2)   examine witnesses, including a court-appointed guardian ad litem,
qualified health care professional and visitor; and

       (3)      otherwise participate in the hearing.

   H. The court upon request or its own motion may conduct hearings at the location of
the alleged incapacitated person who is unable to be present in court.

    I. The rules of evidence shall apply and no hearsay evidence that is not otherwise
admissible in a court shall be admitted into evidence except as otherwise provided in
this article. There is a legal presumption of capacity, and the burden of proof shall be
on the petitioner to prove the allegations set forth in the petition. Such proof shall be
established by clear and convincing evidence.

    J. The existence of a proceeding for or the existence of a guardianship for an adult
is a matter of public record unless the court seals the record after:

      (1)     the alleged incapacitated person or individual subject to guardianship
requests that the record be sealed; and

       (2)      either:

             (a) the petition for guardianship is dismissed; or

             (b) the guardianship is terminated.

    K. An alleged incapacitated person or the protected person subject to a proceeding
for a guardianship, whether or not a guardian is appointed, an attorney designated by
the alleged incapacitated person or the protected person and a person entitled to notice
are entitled to access court records of the proceeding and resulting guardianship. A
person not otherwise entitled to access court records under this subsection for good
cause may petition the court for access to court records of the guardianship. The court
shall grant access if access is in the best interest of the alleged incapacitated person or
the protected person or furthers the public interest and does not endanger the welfare
or financial interests of the alleged incapacitated person or the protected person.

   L. A report pursuant to Subsections E and F of this section or a written report filed
pursuant to Section 45-5-303.1 or 45-5-314 NMSA 1978 is confidential and shall be
sealed on filing, but is available to:

       (1)    the court;

      (2)     the alleged incapacitated person who is the subject of the report or
evaluation, without limitation as to use;

      (3)    the petitioner, visitor, guardian ad litem and an attorney of record for
purposes of the proceeding;

       (4)    unless the court orders otherwise, an agent appointed under a power of
attorney for health care or power of attorney for finances in which the alleged
incapacitated person is the principal; and

        (5)   any other person if it is in the public interest, as determined by the court,
or for a purpose the court orders for good cause.

    M. Notwithstanding the provisions of Subsection J of this section, a disclosure of
information shall not include diagnostic information, treatment information or other
medical or psychological information.

   N. The issue of whether a guardian shall be appointed for the alleged incapacitated
person shall be determined by the court at an open hearing unless, for good cause, the
court determines otherwise.

   O. Upon request of the petitioner or alleged incapacitated person, the court shall
schedule a jury trial.

History: 1953 Comp., § 5-303, enacted by Laws 1975, ch. 257, § 5-303; repealed and
reenacted by Laws 1989, ch. 252, § 5; 1993, ch. 301, § 3; 1998, ch. 32, § 3; 2009, ch.
159, § 33; 2018, ch. 10, § 4; 2019, ch. 228, § 2.

                                      ANNOTATIONS

Repeals and reenactments. — Laws 1989, ch. 252, § 5 repealed former 45-5-303
NMSA 1978, as enacted by Laws 1975, ch. 257, § 5-303, relating to procedure for court
appointment of a guardian of an incapacitated person, and enacted a new section,
effective June 16, 1989.
Cross references. — For involuntary commitment of developmentally disabled adults
by Uniform Probate Code guardian, see 43-1-13 NMSA 1978.

For voluntary admission, see 43-1-14 NMSA 1978.

The 2019 amendment, effective July 1, 2019, revised hearing procedures on a petition
for appointment of a guardian for an alleged incapacitated person, provided those who
are alleged to be incapacitated with the opportunity to participate in hearings on the
petition for appointment of a guardian; in Subsection G, in the introductory paragraph,
added "At a hearing conducted pursuant to this section, the person alleged to be
incapacitated may", and added Paragraphs G(1) through G(3); and in Subsection L, in
the introductory clause, after "Section 45-5-303.1", added "or 45-5-314".

The 2018 amendment, effective July 1, 2018, revised the procedure for court
appointment of a guardian of an incapacitated person; deleted former Subsection A,
added new Subsections A and B, and redesignated former Subsections B through H as
Subsections C through I, respectively; in Paragraph E(1), after "the level of the", deleted
"respondent’s" and added "alleged incapacitated person’s"; deleted former Subsection I,
added new Subsections J through L, and redesignated former Subsection J as
Subsection M; in Subsection M, after "Subsection", deleted "I" and added "J"; and
deleted former Subsection K, added new Subsection N, and redesignated former
Subsection L as Subsection O.

Applicability. — Laws 2018, ch. 10, § 16 provided that the provisions of Laws 2018,
ch. 10, §§ 1 through 14 apply to:

A.    a proceeding for appointment of a guardian or conservator or for a protective
arrangement instead of guardianship or conservatorship commenced on or after July 1,
2018; and

B.      a guardianship, conservatorship or protective arrangement instead of
guardianship or conservatorship in existence on June 30, 2018 unless the court finds
application of a particular provision of this act would substantially interfere with the
effective conduct of the proceeding or prejudice the rights of a party, in which case the
particular provision of this act does not apply and the superseded law applies.

Temporary provisions. — Laws 2018, ch. 10, § 15 provided that on or before
November 1, 2018, and again on or before November 1, 2019, the administrative office
of the courts shall report to the legislative finance committee on the following topics:

A.      the status of the Uniform Guardianship, Conservatorship and Other Protective
Arrangements Act as approved by the national conference of commissioners on uniform
state laws, including publication of official commentary and introduction and enactment
by state legislatures;
B.   the feasibility of the implementation in New Mexico of the Uniform Guardianship,
Conservatorship and Other Protective Arrangements Act; and

C.    an estimate of the financial cost to the judiciary to implement the Uniform
Guardianship, Conservatorship and Other Protective Arrangements Act.

The 2009 amendment, effective June 19, 2009, in Paragraph (1) of Subsection A,
changed "age" to "date of birth"; added Paragraphs (5), (7) and (10) of Subsection A;
deleted Paragraph (8) of Subsection A, which required a statement of the names and
addresses of any other incapacitated persons for whom the proposed guardian is
acting; and in Paragraph (13) of Subsection A, added "including whether the guardian
has ever been convicted of a felony".

The 1998 amendment, effective May 20, 1998, in Subsection A, inserted "Uniform"; in
Paragraph A(1) inserted "and"; in the last sentence of Subsection H, substituted "shall"
for "must"; in Subsection I, inserted "except that the public shall be granted access to
the following information:"; added Paragraphs I(1) to I(4); added Subsection J and
redesignated the following subsections accordingly.

The 1993 amendment, effective July 1, 1993, in Subsection A inserted "name and" in
Paragraph (5) and substituted "alleged incapacitated person" for "person for whom the
guardian is sought to be appointed" in Paragraphs (6) and (7); in Subsection C, inserted
"of his own choice" in the second sentence and substituted the third sentence for two
sentences which read "The attorney in the proceedings shall have the duties of a
guardian ad litem. Such attorney shall visit the alleged incapacitated person prior to the
hearing"; in Subsection D, substituted "report" for "evaluation" twice in the introductory
paragraph and rewrote Paragraph (2); rewrote Subsection E; deleted former Paragraph
(1) in Subsection F which read "it is impossible for the alleged incapacitated person to
be present at the hearing; or"; and made minor stylistic changes throughout the section.

Strict accordance with statutory proceedings required. — Proceedings to
adjudicate a person incompetent, insane or so mentally ill as to require hospitalization
must be in strict accordance with the statutory requirements and proceedings. If the
required procedure is not followed in material respects, the proceedings are void and of
no effect. Blevins v. Cook, 1960-NMSC-008, 66 N.M. 381, 348 P.2d 742 (decided under
former law).

Substantial compliance found. — A failure to strictly comply with the requirements of
the guardianship statutes did not deprive the trial court of jurisdiction since the trial court
took the utmost care at trial to ensure that the purposes of the guardianship statutes
were substantially complied with by the parties. In re Pulver, 1994-NMCA-024, 117 N.M.
329, 871 P.2d 985.

Adequate notice of proceedings. — Where relative of a person who was alleged to be
incompetent was not served with a pleading making the relative a party to the
guardianship proceedings; relative was mailed a copy of the petition and notice of
hearing; relative was not given notice of a change of the hearing date or of any other
action in the proceeding; and there was no evidence that relative did not understand
that relative could seek to participate in the proceedings, the notice to the relative was
adequate. In re Strozzi, 1991-NMCA-057, 112 N.M. 270, 814 P.2d 138.

Appointment of medical professional. — Where the trial court did not on its own
initiative appoint a qualified health care professional, but heard testimony about the
medical and mental status from a qualified professional registered nurse who cared for
the incapacitated person on a daily basis, there was substantial compliance. In re
Pulver, 1994-NMCA-024, 117 N.M. 329, 871 P.2d 985.

Reports of medical evaluations. — The evaluations, together with the testimony of the
nurse and the testimony of the psychologist, all of which unqualifiedly supported the
appointment of a guardian and conservator, fulfilled the statutory intent, even though not
all of it was written. In re Pulver, 1994-NMCA-024, 117 N.M. 329, 871 P.2d 985.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Constitutionality of statute making
physical disability ground for appointment of guardian of person or property, 30 A.L.R.
1381.

Mental condition which will justify the appointment of guardian, committee or
conservator of the estate for an incompetent or spendthrift, 9 A.L.R.3d 774.

Priority and preference in appointment of conservator or guardian for an incompetent,
65 A.L.R.3d 991.

Validity of guardianship proceeding based on brainwashing of subject by religious,
political or social organization, 44 A.L.R.4th 1207.

14 C.J.S. Chemical Dependents § 4; 49 C.J.S. Insane Persons §§ 37, 40.