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.
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previously nominated or designated in a writing signed by the incapacitated person prior to incapacity that has not been revoked by the incapacitated person or terminated by a court.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 [Chapter 24, Article 7A NMSA 1978], the Mental Health Care Treatment Decisions Act [Chapter 24, Article 7B NMSA 1978], the Uniform Power of Attorney Act [45-5B-101 to 45-5B-403 NMSA 1978], the Uniform Probate Code [Chapter 45 NMSA 1978] and the Uniform Trust Code [Chapter 46A NMSA 1978];
(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.
History: 1953 Comp., § 32A-5-311, enacted by Laws 1975, ch. 257, § 5-311; 1989, ch. 252, § 12; 1993, ch. 301, § 9; 2009, ch. 159, § 38; 2019, ch. 228, § 5.
ANNOTATIONSThe 2019 amendment, effective July 1, 2019, provided additional qualifications for a guardian of an incapacitated person; in the section heading, added "qualifications"; in Subsection B, Paragraph B(2), deleted "as defined in Paragraph (4) of Subsection A of Section 45-5-309 NMSA 1978 to serve as guardian or agent in a writing signed by the incapacitated person prior to the incapacitated person's incapacity that has not been revoked by the incapacitated person or terminated by a court" and added "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, the Mental Health Care Treatment Decisions Act, the Uniform Power of Attorney Act, the Uniform Probate Code and the Uniform Trust Code"; and added Subsection D.
The 2009 amendment, effective June 19, 2009, in Paragraph (2) of Subsection B, added "as far as known or as can be reasonably ascertained"; added "or designated in a writing as defined in Paragraph (4) of Subsection A of Section 45-5-309 NMSA 1978"; added "or agent"; and added "that has not been revoked by the incapacitated person or terminated by a court"; in Subsection C, added "and for good cause shown"; and in Paragraph (1) of Subsection C, added "giving weight to preferences expressed in writing by the person while having capacity".
The 1993 amendment, effective July 1, 1993, inserted "Appointed" in the section heading; in Subsection B, added current Paragraphs (1) and (2) and redesignated former Paragraphs (1) through (6) as Paragraphs (3) through (8).
The 1989 amendment, effective June 16, 1989, substituted the present provisions of Subsection A for "Any competent person or a suitable institution may be appointed guardian of an incapacitated person"; and added Subsections B(6) and C.
Preference of incapacitated person. — The provisions in the New Mexico Uniform Probate Code for appointment of a guardian for an incapacitated person do provide some opportunity for choice or preference by the incapacitated person under this section. The same is true of the provisions for appointment of a conservator under 45-5-410NMSA 1978. However, the provisions for choice or preference in these cases are not as liberal as the provision for appointment of a minor's guardian under 45-5-206 NMSA 1978. 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. — Priority and preferences in appointment of conservator or guardian for an incompetent, 65 A.L.R.3d 991.
14 C.J.S. Chemical Dependents § 4; 49 C.J.S. Insane Persons §§ 42, 43.