N.M. Stat. § 45-5-312 (2026)

guardian.
   A. If the court enters judgment pursuant to Subsection C of Section 45-5-304 NMSA
1978, it shall appoint a limited guardian if it determines that the protected person is able
to manage some but not all aspects of personal care. The court shall specify those
powers that the limited guardian shall have and may further restrict each power so as to
permit the protected person to care for the protected person's own self commensurate
with the protected person's ability to do so. A person for whom a limited guardian has
been appointed retains all legal and civil rights except those that have been specifically
granted to the limited guardian by the court. The limited guardian shall exercise
supervisory powers over the protected person in a manner that is the least restrictive
form of intervention consistent with the order of the court.

   B. A guardian is not legally obligated to provide from the guardian's own funds for
the protected person and is not liable to third persons for acts of the protected person
solely by reason of the guardianship. In particular and without qualifying the foregoing,
a guardian or the guardian's replacement has the following powers and duties, except
as modified by order of the court:

      (1)    to the extent that it is consistent with the terms of any order by a court of
competent jurisdiction relating to detention or commitment of the protected person, a
guardian is entitled to custody of the protected person and may establish the protected
person's place of abode within or without New Mexico;

       (2)     if entitled to custody of the protected person, a guardian shall make
provision for the care, comfort and maintenance of the protected person and, whenever
appropriate, arrange for training and education. The guardian shall take reasonable
care of the protected person's clothing, furniture, vehicles and other personal effects
and commence conservatorship proceedings if other property of the protected person is
in need of protection;

        (3)   if no agent is entitled to make health care decisions for the protected
person under the provisions of the Uniform Health-Care Decisions Act [Chapter 24,
Article 7A NMSA 1978], then the guardian shall make health care decisions for the
protected person in accordance with the provisions of that act. In exercising health care
powers, a guardian may consent or withhold consent that may be necessary to enable
the protected person to receive or refuse medical or other professional care, counsel,
treatment or service. That decision shall be made in accordance with the values of the
protected person, if known, or the best interests of the protected person if the values are
not known;

      (4)      if no conservator for the estate of the protected person has been
appointed, if the court has determined that a conservatorship is not appropriate and if a
guardian appointed by the court has been granted authority to make financial decisions
on behalf of the protected person in the order of appointment and in the letters of
guardianship pursuant to Subsection C of Section 45-5-308 NMSA 1978, the guardian
has the following powers and duties, including the power:

          (a) to institute proceedings to compel any person under a duty to support the
protected person or to pay sums for the welfare of the protected person to perform that
duty;
          (b) to receive money and tangible property deliverable to the protected person
and apply the money and property for support, care and education of the protected
person, but the guardian shall not use funds from the protected person's estate for room
and board that the guardian or the guardian's spouse, parent or child has furnished the
protected person, unless a charge for the service is approved by order of the court
made upon notice to at least one of the next of kin of the protected person, if notice is
possible;

          (c) to serve as advocate and decision maker for the protected person in any
disputes with persons or organizations, including financial institutions, regarding the
protected person's finances;

         (d) to obtain information regarding the protected person's assets and income
from persons or organizations handling the protected person's finances;

           (e) to file an initial inventory of all property belonging to the protected person
within ninety days after appointment; and

          (f) to exercise care to conserve any excess for the protected person's needs
and include in the guardian's ninety-day and annual reports a description of decisions
made regarding the protected person's finances and property; and

        (5)    the guardian shall exercise the guardian's supervisory powers over the
protected person in a manner that is least restrictive of the protected person's personal
freedom and consistent with the need for supervision. Professional guardians shall
follow the following standards in the national guardianship association standards of
practice:

          (a) informed consent;

          (b) standards for decision making;

          (c) least restrictive alternatives;

          (d) self-determination of the person; and

          (e) the guardian's duties regarding diversity and personal preferences of the
person.

   C. A guardian of a protected person for whom a conservator also has been
appointed shall control the care and custody of the protected person and is entitled to
receive reasonable sums for services and for room and board furnished to the protected
person. The guardian may request the conservator to expend the protected person's
estate by payment to third persons or institutions for the protected person's care and
maintenance.
   D. Unless authorized by the court by specific order, a guardian for an adult shall not
revoke or amend a power of attorney for health care or power of attorney for finances
signed by the adult. If a power of attorney for health care is in effect, unless there is a
court order to the contrary, a health care decision of an agent takes precedence over
that of the guardian, and the guardian shall cooperate with the agent to the extent
feasible. If a power of attorney for finances is in effect, unless there is a court order to
the contrary, a decision by the agent that the agent is authorized to make under the
power of attorney for finances takes precedence over that of the guardian, and the
guardian shall cooperate with the agent to the extent feasible.

    E. A guardian for an adult shall not initiate the commitment of the adult to a mental
health treatment facility except in accordance with the state's procedure for involuntary
civil commitment.

    F. A guardian for a protected person shall not restrict the ability of the protected
person to communicate, visit or interact with others, including receiving visitors and
making or receiving telephone calls, personal mail or electronic communications,
including through social media or participating in social activities, unless:

       (1)    authorized by the court by specific order;

       (2)   a less restrictive alternative is in effect that limits contact between the
protected person and a person; or

       (3)     the guardian has good cause to believe restriction is necessary because
interaction with a specified person poses a risk of significant physical, psychological or
financial harm to the protected person and the restriction is:

           (a) for a period of not more than seven business days if the person has a
family or preexisting social relationship with the protected person; or

           (b) for a period of not more than sixty days if the person does not have a
family or preexisting social relationship with the protected person.

    G. A guardian for a protected person shall seek and support the least restrictive
option, consistent with the court's guardianship order of appointment, including
developing adequate supports and requesting guardianship termination if less restrictive
alternatives to guardianship are appropriate.

History: 1953 Comp., § 32A-5-312, enacted by Laws 1975, ch. 257, § 5-312; 1984, ch.
99, § 8; 1989, ch. 252, § 13; 1993, ch. 301, § 10; 1997, ch. 168, § 12; 2009, ch. 159, §
39; 2018, ch. 10, § 6; 2019, ch. 228, § 6; 2021, ch. 128, § 8.

                                      ANNOTATIONS
The 2021 amendment, effective July 1, 2021, required professional guardians to
adhere to certain national guardianship association standards of practice, and required
a guardian for a protected person to seek and support the least restrictive alternatives to
guardianship; in Subsection B, Paragraph B(5), after "consistent with the need for
supervision", added "Professional guardians shall follow the following standards in the
national guardianship association standards of practice", and added Subparagraphs
B(5)(a) through B(5)(e); and added Subsection G.

The 2019 amendment, effective July 1, 2019, removed a provision related to the rights
and duties of a guardian; and in Subsection B, in the introductory paragraph, deleted "A
guardian of a protected person has the same powers, rights and duties respecting the
protected person that a parent has respecting an unemancipated minor child, except
that".

The 2018 amendment, effective July 1, 2018, limited certain powers of a guardian, and
updated certain language throughout the section; in Subsections A through C, changed
all occurrences of "incapacitated person" to "protected person" throughout the sections;
and added Subsections D through F.

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.

The 2009 amendment, effective June 19, 2009, in Paragraph (4) of Subsection B, after
"person has been appointed:", deleted "the guardian may institute proceedings to
compel any person under a duty to support the incapacitated person or to pay sums for
the welfare of the incapacitated person" and added the remainder of the sentence; and
added Subparagraphs (a) through (f) of Paragraph (4) of Subsection B.

The 1997 amendment, effective July 1, 1997, added the first sentence and added "In
exercising health-care powers," at the beginning of the second sentence of Paragraph
B(3), and deleted former Paragraph B(5) relating to the authority of a guardian to
consent to removing or withholding maintenance medical treatment of an incapacitated
person.

The 1993 amendment, effective July 1, 1993, substituted "shall" for "may", deleted
"alleged" preceding "incapacitated" and substituted "able" for "unable" in the first
sentence in Subsection A; deleted "as defined in Subsection M of Section 45-5-101
NMSA 1978" following "guardian" in the second sentence of Subsection A; inserted
"and" preceding "consistent" in Paragraph (6) of Subsection B; in Subsection C,
substituted "an incapacitated person" for "one" near the beginning and deleted "as
agreed upon between him and the conservator, provided the amounts agreed upon are
reasonable under the circumstances" at the end of the first sentence; and made minor
stylistic changes.

The 1989 amendment, effective June 16, 1989, added Subsection A; redesignated
former Subsections A and B as Subsections B and C; and rewrote Subsection B to the
extent that a detailed comparison would be impracticable.

Powers of guardians. — A guardian has only the care, custody, or control of the
person and is not authorized to sell property, enter into leases or employ accountants
and attorneys. In re Estate of Gardner, 1992-NMCA-122, 114 N.M. 793, 845 P.2d 1247.

A guardian, under certain circumstances, has the authority to hire an attorney to
represent the interests of an incapacitated person. — Where a court-appointed
guardian for an incapacitated person, without the permission of the district court or
approval of the conservator for the incapacitated person, hired an attorney to represent
the incapacitated person in a matter pertaining to the incapacitated person's interests,
and where the district court struck the attorney's entry of appearance, holding that only
a court-appointed conservator had such authority, the district court erred in striking the
attorney's entry of appearance because at the time relevant to this appeal, this section
conferred on guardians the same powers, rights and duties respecting the incapacitated
person that a parent has respecting an unemancipated minor child, the guardian
believed it was necessary that the incapacitated person be represented by an attorney
at the hearing on whether the guardianship should continue, and the purpose of the
representation for which the guardian hired the attorney related to the incapacitated
person's personal interests. Moreover, this section does not prohibit a guardian from
hiring an attorney for the purpose of representing an incapacitated person in a
proceeding concerning whether the guardianship should continue. Richards v.
McEachern, 2020-NMCA-023.

Proper adjudication of incompetency necessary to give guardian authority. —
Where there was no adjudication of incompetency in accordance with the statutory
requirements, the adjudication was a nullity as were subsequent acts by guardian
whose appointment was based on that adjudication. Blevins v. Cook, 1960-NMSC-008,
66 N.M. 381, 348 P.2d 742 (decided under former law).

Guardians may initiate divorce. — A guardian of an adult incompetent ward may
initiate divorce proceedings on behalf of the ward. Nelson v. Nelson, 1994-NMCA-074,
118 N.M. 17, 878 P.2d 335.
Law reviews. — For note, "New Mexico Expands the Power of a Guardian to Include
the Right to Initiate and Maintain a Divorce Action on Behalf of the Guardian's
Incompetent Ward: Nelson v. Nelson," see 25 N.M.L. Rev. 295 (1995).

For article, "Trends in New Mexico Law: 1993-94: Family Law – New Mexico Expands
the Power of a Guardian to Include the Right to Initiate and Maintain a Divorce Action
on Behalf of the Guardian's Incompetent Ward: Nelson v. Nelson," see 25 N.M.L. Rev.
295 (1995).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Constitutionality of statute authorizing
guardian to sell or lease land of ward, 4 A.L.R. 1552.

Right of guardian to expend principal of ward's estate for support and maintenance, 5
A.L.R. 632.

Right of guardian to invest trust funds in corporate stock, 12 A.L.R. 574, 122 A.L.R. 657,
78 A.L.R.2d 7.

Court's power to authorize guardian to borrow ward's money, 30 A.L.R. 461.

Exchange as within power of sale, 63 A.L.R. 1003.

Character of claims or obligations contemplated by statute expressly giving guardian
authority as to borrowing money, 85 A.L.R. 215.

Power and duty of guardian as to protection of investment in stocks by submitting to
voluntary assessment, 104 A.L.R. 979.

Guardian's purchase from corporation of which he is officer or stockholder as voidable
or as ground for surcharging his account, 105 A.L.R. 449.

Ownership of stock in corporation in which guardian holds stock in fiduciary capacity by
guardian in his own right, 106 A.L.R. 220, 161 A.L.R. 1039.

Sale without order of court, 108 A.L.R. 936.

Option under insurance policy, guardian's power to make election, 112 A.L.R. 1063, 127
A.L.R. 454, 136 A.L.R. 1045.

Liability in absence of mandatory statute, of guardian for loss of funds as affected by
failure to obtain court order authorizing investment, 116 A.L.R. 437.

Transaction with affiliated corporation, by corporate guardian as violation of rule against
self-dealing, 151 A.L.R. 905.
Power of guardian as to compromise of liquidated contract claim or money judgment,
155 A.L.R. 196.

Guardian's contract employing attorney as binding upon ward or his estate, 171 A.L.R.
468.

Power of guardian of incompetent to change beneficiaries in ward's life insurance policy,
21 A.L.R.2d 1191.

Liability of incompetent's estate for torts committed by guardian, committee or trustee in
managing estate, 40 A.L.R.2d 1103.

Validity and enforceability of agreement to drop or compromise will contest or withdraw
objections to probate, or of agreement to induce others to do so, 42 A.L.R.2d 1319.

Power of court to confirm sale of ward's property over objection of guardian, 43
A.L.R.2d 1445.

Power of guardian, committee or trustee of mental incompetent, after latter's death, to
pay debts and obligations, 60 A.L.R.2d 963.

Effect of incompetency of joint depositor upon status and ownership of bank account, 62
A.L.R.2d 1091.

Waiver of attorney-client privilege by personal representative or heir of deceased client
or by guardian of incompetent, 67 A.L.R.2d 1268.

Guardian's liability for interest on ward's funds, 72 A.L.R.2d 757.

Capacity of guardian to sue or be sued outside state where appointed, 94 A.L.R.2d 162.

Power to make charitable gifts from estate of incompetent, 99 A.L.R.2d 946.

Factors considered in making election for incompetent to take under or against will, 3
A.L.R.3d 6.

Time within which election must be made for incompetent to take under or against will, 3
A.L.R.3d 119.

Who may make election for incompetent to take under or against will, 21 A.L.R.3d 320.

Power of court or guardian to make noncharitable gifts or allowances out of funds of
incompetent ward, 24 A.L.R.3d 863.
Right of guardian or committee of incompetent to incur obligations so as to bind
incompetent or his estate, or to make expenditures, without approval by court, 63
A.L.R.3d 780.

Guardian's authority, without seeking court approval, to exercise ward's right to revoke
trust, 53 A.L.R.4th 1297.

Validity of inter vivos gift by ward to guardian or conservator, 70 A.L.R.4th 499.

Involuntary disclosure or surrender of will prior to testator's death, 75 A.L.R.4th 1144.

Ademption or revocation of specific devise or bequest by guardian, committee,
conservator or trustee of mentally or physically incompetent testator, 84 A.L.R.4th 462.

Propriety of surgically invading incompetent or minor for benefit of third party, 4
A.L.R.5th 1000.

Power of incompetent spouse's guardian or representative to sue for granting or
vacation of divorce or annulment of marriage, or to make compromise or settlement in
such suit, 32 A.L.R.5th 673.

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