A. The court, at the hearing on the petition for appointment for a guardian pursuant to provisions of N.M. Stat. Ann. Chapter 45, Article 5, shall:

Terms Used In New Mexico Statutes 45-5-304

  • Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.

(1)     inquire into the nature and extent of the functional limitations of the alleged incapacitated person; and

(2)     ascertain the alleged incapacitated person’s capacity to care for the alleged incapacitated person’s own self.

B. If it is determined that the alleged incapacitated person possesses the capacity to care for the alleged incapacitated person’s own self, the court shall dismiss the petition.

C. Alternatively, the court may appoint a full guardian as requested in the petition or a limited guardian and confer specific powers of guardianship after finding in the record based on clear and convincing evidence that:

(1)     the person for whom a guardian is sought is totally incapacitated or is incapacitated only in specific areas as alleged in the petition;

(2)     the guardianship is necessary as a means of providing continuing care, supervision and rehabilitation of the incapacitated person;

(3)     there are no available alternative resources that are suitable with respect to the alleged incapacitated person’s welfare, safety and rehabilitation;

(4)     the guardianship is appropriate as the least restrictive form of intervention consistent with the preservation of the civil rights and liberties of the alleged incapacitated person; and

(5)     the proposed guardian is both qualified and suitable, has reviewed the proposed order of appointment and is willing to serve.

D. The court may enter any other appropriate order consistent with the findings of this section.

E. A copy of the order appointing the guardian shall be furnished to the proposed guardian, the incapacitated person and the incapacitated person’s counsel.

F. The order shall contain the name and address of the guardian as well as notice of the incapacitated person’s right to appeal the guardianship appointment and of the right to seek alteration or termination of the guardianship at any time.