N.M. Stat. § 45-5-404 (2026)

C. If the petition is for the appointment of a conservator for an incapacitated person,
the person to be protected 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 person's incapacity, if any, and the
level of the intellectual, developmental and social functioning of the person to be
protected; and

      (2)    contain observations, with supporting data, regarding the ability of the
person to be protected to manage the person's estate or financial affairs.

   D. The court shall also appoint a visitor who shall interview the person seeking
appointment as conservator and the person to be protected. The visitor shall also visit
the present place of residence of the person to be protected. The visitor shall evaluate
the needs of the person to be protected and shall submit a written report to the court.
The report shall include a recommendation regarding the appropriateness of the
appointment of the proposed conservator. The report shall also include
recommendations regarding:
       (1)   those aspects of the person's financial affairs that the person to be
protected can manage without supervision or assistance;

       (2)    those aspects of the person's financial affairs that the person to be
protected could manage with the supervision or assistance of support services and
benefits; and

       (3)    those aspects of the person's financial affairs that the person to be
protected is unable to manage even with the supervision or assistance of support
services and benefits.

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

    E. The person to be protected shall be present at the hearing on the issues raised
by the petition and any response to the petition, unless the court determines it is not in
the best interest of the person for whom a conservator is sought to be present because
of a threat to the health or safety of the person for whom a conservator is sought or
others as determined by the court. The court upon request or its own motion may
conduct hearings at the location of the person to be protected if the person is unable to
be present in court. At a hearing conducted pursuant to this section, the person to be
protected 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.

   F. The person to be protected shall not be permitted by the court to consent to the
appointment of a conservator.

   G. The court, at the hearing on the petition for appointment of conservator, shall:

       (1)    inquire into the nature and extent of the functional limitations of the person
to be protected; and

       (2)    ascertain the person's capacity to manage the person's financial affairs.

   H. If it is determined that the person to be protected possesses the capacity to
manage the person's estate or financial affairs, or both, the court shall dismiss the
petition.
    I. Alternatively, the court may appoint a full conservator, as requested in the
petition, or a limited conservator and confer specific powers of conservatorship after
finding in the record based on clear and convincing evidence that:

       (1)     the person to be protected is totally incapacitated or is incapacitated only
in specific areas as alleged in the petition;

       (2)    the conservatorship is necessary as a means of effectively managing the
estate or financial affairs, or both, of the person to be protected;

     (3)   there are not available alternative resources that enable the effective
management of the estate and financial affairs of the person to be protected;

       (4)    the conservatorship is appropriate as the least restrictive form of
intervention consistent with the preservation of the property of the person to be
protected; and

         (5)   the proposed conservator is both qualified and suitable and is willing to
serve.

    J. After hearing, upon finding that a basis for the appointment of a conservator has
been established, the court shall make an appointment of a conservator. The court
shall appoint a limited conservator if it determines that the incapacitated person is able
to manage some but not all aspects of the incapacitated person's estate and financial
affairs. The court shall specify those powers that the limited conservator shall have and
may further restrict each power so as to permit the incapacitated person to care for the
incapacitated person's estate and financial affairs commensurate with the incapacitated
person's ability to do so.

    K. A person for whom a conservator has been appointed retains all legal and civil
rights except those that have been specifically granted to the conservator by the court.
The conservator shall exercise supervisory powers over the estate and financial affairs
of the incapacitated person in a manner that is the least restrictive form of intervention
consistent with the order of the court.

   L. 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
the Uniform Probate Code.

    M. The existence of a proceeding for or the existence of conservatorship is a matter
of public record unless the court seals the record after:

      (1)     the alleged incapacitated person, the protected person subject to
conservatorship or the parent or a guardian of a minor subject to conservatorship
requests that the record be sealed; and
       (2)      either:

             (a) the petition for conservatorship is dismissed; or

             (b) the conservatorship is terminated.

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

   O. A report pursuant to Subsections C and D of this section or a written report filed
pursuant to Section 45-5-404.1 or 45-5-409 NMSA 1978 is confidential and shall be
sealed on filing, but is available to:

       (1)      the court;

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

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

       (4)     unless the court directs otherwise, an agent appointed under a power of
attorney for finances in which the alleged incapacitated person is identified as 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.

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

   Q. The issue of whether a conservator 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.

    R. Upon request of the petitioner or person to be protected, the court shall schedule
a jury trial.
    S. Upon entry of an order appointing a conservator, a copy of the order shall be
furnished to the person for whom the conservator was appointed and that person's
counsel. The order shall contain the name and address of the conservator as well as
notice to the person for whom the conservator was appointed of that person's right to
appeal the appointment and of that person's right to seek alteration or termination of the
conservatorship at any time.

History: 1953 Comp., § 32A-5-407, enacted by Laws 1975, ch. 257, § 5-407; 1989, ch.
252, § 20; 1993, ch. 301, § 17; 1998, ch. 32, § 4; 2018, ch. 10, § 11; 2019, ch. 228, § 9.

                                     ANNOTATIONS

The 2019 amendment, effective July 1, 2019, revised hearing procedures on a petition
for court appointment of a conservator, and provided the person to be protected with the
opportunity to participate in hearings on the petition for appointment of a conservator; in
Subsection E, in the introductory paragraph, added "At a hearing conducted pursuant to
this section, the person to be protected may", and added Paragraphs E(1) through E(3);
and in Subsection O, in the introductory clause, after "A report", deleted "under Section"
and added "pursuant to Subsections C and D of this section or a written report filed
pursuant to Section 45-5-404.1 or".

The 2018 amendment, effective July 1, 2018, designated which records of a
conservatorship were confidential and which were a matter of public record, and
designated who may access confidential court records; deleted former Subsection M,
added new Subsections M through O, redesignated former Subsection N as Subsection
P, deleted former Subsection O, and added a new Subsection Q.

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 1998 amendment, effective May 20, 1998, inserted "person" at the end of
Paragraph I(4); inserted "Uniform" in Subsection L; in Subsection M, inserted "except
that the public shall be granted access to the following information:" and added
Paragraphs M(1) to M(5); and added Subsection N and redesignated the following
subsections accordingly.

The 1993 amendment, effective July 1, 1993, rewrote this section to the extent that a
detailed comparison is impracticable.

The 1989 amendment, effective June 16, 1989, in Subsection A substituted "shall
represent and protect the interests of the minor" for "has the duties of a guardian ad
litem" in the last sentence; in Subsection B deleted "or other protective order" following
"conservator" in the first sentence, and rewrote the last three sentences; added present
Subsections C through F; redesignated former Subsection C as present Subsection G,
while deleting "or other protective order" following "conservator" near the beginning and
substituting "of a conservator" for "or other appropriate protective order" at the end;
deleted former Subsection D, relating to cases involving the veterans administration;
and added Subsections H through K.

Conservator for estate of minor. — In the appointment of a conservator for the estate
of a minor, the district court was not required to find by clear and convincing evidence
that the conservatorship is the least restrictive form of intervention. Chisholm v.
Chisholm, 1999-NMCA-025, 126 N.M. 584, 973 P.2d 261, cert. quashed, 128 N.M. 10,
990 P.2d 824.

Substantial evidence did not exist to support the district court’s order appointing
a limited conservator. — Where petitioner filed a petition for the appointment of a
plenary guardian and plenary conservator for respondent, alleging that respondent
suffered from several mental health conditions that render her an “incapacitated person”
and that such required appointment of a guardian and a conservator for respondent’s
personal and financial affairs, the district court erred in appointing a limited conservator
for respondent, because neither the reports nor the testimony of any of the witnesses
below contained evidence that respondent was unable to manage her estate or financial
affairs. Substantial evidence did not exist to support the district court’s finding that
Respondent could not manage her financial affairs. In re Guardianship &
Conservatorship of Linda D., 2026-NMCA-035.
Appointment and appearance of attorney cannot cure defect in jurisdiction. —
Where the jurisdiction of the court was not properly invoked by following the statute in
the first instance, the mere appointment and appearance of a member of the bar to act
as guardian ad litem cannot cure this defect. Bonds v. Joplin's Heirs, 1958-NMSC-095,
64 N.M. 342, 328 P.2d 597 (decided under former law).

Appointment as guardian ad litem is position of highest trust and no attorney
should ever blindly enter an appearance as guardian ad litem and allow a matter to
proceed without a full and complete investigation into the facts and law so that his
clients will be fairly and competently represented and their rights fully and adequately
protected and preserved. Bonds v. Joplin's Heirs, 1958-NMSC-095, 64 N.M. 342, 328
P.2d 597 (decided under former law).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 14 C.J.S. Chemical Dependents § 4; 39
C.J.S. Guardian and Ward §§ 26 to 28; 49 C.J.S. Insane Persons §§ 37, 40.