New Mexico Statutes 45-5-311. Who may be appointed guardian; priorities; qualifications
A. Any person deemed to be qualified by the court may be appointed guardian of an incapacitated person, except that no individual who operates or is an employee of a boarding home, residential care home, nursing home, group home or other similar facility in which the incapacitated person resides may serve as guardian for the incapacitated person, except an employee may serve in such capacity when related by affinity or consanguinity.
Terms Used In New Mexico Statutes 45-5-311
- Fiduciary: A trustee, executor, or administrator.
- 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.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Probate: Proving a will
B. Persons who are not disqualified have priority for appointment as guardian in the following order:
(1) a guardian or other like fiduciary appointed by the appropriate court of any other jurisdiction;
(2) a person, as far as known or as can be reasonably ascertained, previously nominated or designated in a writing signed by the incapacitated person prior to incapacity that has not been revoked by the incapacitated person or terminated by a court. This includes writings executed under the Uniform Health-Care Decisions Act [N.M. Stat. Ann. Chapter 24, Article 7A], the Mental Health Care Treatment Decisions Act [N.M. Stat. Ann. Chapter 24, Article 7B], the Uniform Power of Attorney Act N.M. Stat. Ann. § 45-5B-101 to 45-5B-403, the Uniform Probate Code [N.M. Stat. Ann. Chapter 45] and the Uniform Trust Code [N.M. Stat. Ann. Chapter 46A];
(3) the spouse of the incapacitated person; (4) an adult child of the incapacitated person;
(5) a parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent;
(6) any relative of the incapacitated person with whom the incapacitated person has resided for more than six months prior to the filing of the petition;
(7) a person nominated by the person who is caring for the incapacitated person or paying benefits to the incapacitated person; and
(8) any other person.
C. With respect to persons having equal priority, the court shall select the person it considers best qualified to serve as guardian. The court, acting in the best interest of the incapacitated person and for good cause shown, may pass over a person having priority and appoint a person having a lower priority under this section and shall take into consideration:
(1) the preference of the incapacitated person, giving weight to preferences expressed in writing by the person while having capacity;
(2) the geographic location of the proposed guardian;
(3) the relationship of the proposed guardian to the incapacitated person;
(4) the ability of the proposed guardian to carry out the powers and duties of the guardianship; and
(5) potential financial conflicts of interest between the incapacitated person and proposed guardian.
D. A professional guardian shall not serve or be appointed as a guardian of the incapacitated person unless the professional guardian is certified and is in good standing with a national or state organization recognized by the supreme court that provides professional certification for guardians.