New Mexico Adult Guardianship / Conservatorship Petition Packet

NEW MEXICO ADULT GUARDIANSHIP / CONSERVATORSHIP PETITION PACKET

District Court Filing Packet — Uniform Probate Code, Article 5

PART 1 — PRE-PETITION CHECKLIST

Petitioner / Counsel: [_________________________________________]
AIP (Alleged Incapacitated Person): [_________________________________________]
Date of intake: [__/__/____]

1.1 Statutory Standing — § 45-5-303(A)

☐ Petitioner is an "interested person" (relative, person responsible for care, agency, proposed guardian, AIP themself, or other person with demonstrated interest in AIP's welfare)
☐ Confirmed AIP is age 18 or over (for minor guardianship use Probate Code Article 5, Part 2)
☐ Confirmed venue — district court of county where AIP resides or is present (§ 45-5-302)

1.2 Less Restrictive Alternatives Analyzed — § 45-5-303(B)(4), HB 234

Before filing, petitioner has considered and ruled out (or determined insufficient) each of the following:

☐ Supported decision-making agreement (NM recognized under HB 234)
☐ Durable power of attorney for finances (NMSA § 46B-1-101 et seq.)
☐ Power of attorney for health care / advance directive (NMSA § 24-7A-1 et seq.)
☐ Representative payee (Social Security)
☐ VA fiduciary
☐ Joint bank account, ABLE account, special needs trust
☐ Trust (revocable or irrevocable)
☐ Care management / case management services
☐ Protective services through Adult Protective Services (NMSA § 27-7-14 et seq.)

Explanation of why each less restrictive alternative is insufficient:
[____________________________________________________________]
[____________________________________________________________]

1.3 Documents to Collect

☐ Medical / psychological records evidencing functional impairment
☐ Driver's license / ID of AIP and proposed guardian
☐ List of AIP's assets (bank, investments, real property, vehicles, retirement)
☐ List of AIP's debts and monthly income (Social Security, pension, wages)
☐ Existing POA, advance directive, will, trust documents
☐ Names/addresses of spouse, adult children, parents, adult siblings, stepchildren
☐ Names/addresses of current caregivers, agents, fiduciaries
☐ Proposed guardian's background check, credit report, certification (if professional guardian)
☐ Filing fee or in forma pauperis affidavit

1.4 Type of Proceeding Sought

☐ Limited guardianship of the person
☐ Full / plenary guardianship of the person
☐ Limited conservatorship of the estate
☐ Full / plenary conservatorship of the estate
☐ Combined guardianship and conservatorship
☐ Temporary / emergency guardianship — § 45-5-310 (60-day duration)
☐ Standby guardianship

PART 2 — VERIFIED PETITION FOR APPOINTMENT OF GUARDIAN AND/OR CONSERVATOR

STATE OF NEW MEXICO
COUNTY OF [______________________]
[______________] JUDICIAL DISTRICT COURT

Case No.: [_______________________]

VERIFIED PETITION FOR APPOINTMENT OF [☐ GUARDIAN] [☐ CONSERVATOR] [☐ GUARDIAN AND CONSERVATOR] OF AN INCAPACITATED PERSON

COMES NOW Petitioner, [PETITIONER FULL NAME], pursuant to NMSA 1978, §§ 45-5-303 and 45-5-407, and respectfully petitions this Court as follows:

2.1 Petitioner

1. Petitioner's full legal name: [_________________________________________]
2. Principal residence: [_________________________________________]
3. Current mailing address (if different): [_________________________________________]
4. Telephone: [(___) ___-____] Email: [______________________]
5. Relationship to AIP: [_________________________________________]
6. Interest in the appointment: [_________________________________________]
7. Attorney for Petitioner (if any): [_________________________________________]
   NM Bar No.: [____________] Address: [_________________________________________]

2.2 Alleged Incapacitated Person (Respondent)

8. Full legal name: [_________________________________________]
9. Date of birth: [__/__/____] Age: [____]
10. Principal residence: [_________________________________________]
11. Current street address (if different): [_________________________________________]
12. Address of proposed dwelling if petition granted: [_________________________________________]

2.3 Statutorily Required Notice Parties — § 45-5-303(B)(2)–(3)

2.4 Reason a Guardianship/Conservatorship Is Necessary — § 45-5-303(B)(4)

13. Nature and extent of alleged need. AIP suffers from the following functional impairments:
    [____________________________________________________________]
    [____________________________________________________________]

14. Diagnoses (to extent known):
    [____________________________________________________________]

15. Specific decision-making areas in which AIP lacks capacity:
    ☐ Health care decisions
    ☐ Residence / placement decisions
    ☐ Activities of daily living
    ☐ Management of finances
    ☐ Contracts and property transactions
    ☐ Other: [_______________________________]

2.5 Less Restrictive Alternative Analysis — § 45-5-303(B)(4)(b)–(d)

16. Less restrictive alternatives considered or implemented: [_________________________________________]
17. If none considered/implemented, reason: [_________________________________________]
18. Reason a least restrictive alternative is insufficient: [_________________________________________]

2.6 Scope of Relief Requested — § 45-5-303(B)(5)–(7)

19. ☐ Limited guardianship — specific powers requested:
    [____________________________________________________________]

20. ☐ Full guardianship — reason a limited guardianship or protective arrangement is not appropriate:
    [____________________________________________________________]

2.7 Proposed Guardian / Conservator — § 45-5-303(B)(8)–(10)

21. Proposed Guardian: [_________________________________________]
    Address: [_________________________________________]
    Telephone: [(___) ___-____] Relationship to AIP: [_________________]

22. Two alternate contacts for proposed guardian (per § 45-5-303 historical practice):
    a. [_________________________________________]
    b. [_________________________________________]

23. Number of other protected persons served by proposed guardian: [____]

24. Proposed guardian's qualifications and felony history: [_________________________________________]
25. Proposed Conservator (if different): [_________________________________________]

2.8 Conservatorship Allegations (if applicable) — § 45-5-407

26. Estimated value of AIP's estate:
    | Asset Category | Estimated Value |
    |---|---|
    | Real property | $[___________] |
    | Bank/credit union accounts | $[___________] |
    | Investment / brokerage accounts | $[___________] |
    | Retirement accounts | $[___________] |
    | Vehicles | $[___________] |
    | Personal property | $[___________] |
    | Total estate | $[___________] |

27. Monthly income (Social Security, pension, wages, other): $[___________]

28. Reason conservator is needed to manage property: [_________________________________________]

2.9 Prayer for Relief

WHEREFORE, Petitioner respectfully prays that this Court:

A. Set this matter for hearing pursuant to NMSA § 45-5-303(C);
B. Appoint a qualified health care professional to examine AIP and submit a written report pursuant to NMSA § 45-5-303(E);
C. If necessary, appoint a guardian ad litem pursuant to NMSA § 45-5-303.1;
D. Appoint a court visitor pursuant to NMSA § 45-5-303(F);
E. Direct that notice of this petition and hearing be served pursuant to NMSA § 45-5-309;
F. After hearing, adjudicate AIP an incapacitated person to the extent required and appoint [Petitioner / proposed guardian] as [limited / full] guardian and/or conservator;
G. Require bond from the conservator in the amount the Court finds appropriate under NMSA § 45-5-410;
H. Grant such other relief as the Court deems just and proper.

Respectfully submitted this [____] day of [______________], 20[____].

___________________________________
[PETITIONER SIGNATURE]
[PRINTED NAME]

___________________________________
[ATTORNEY FOR PETITIONER] (if any)
NM Bar No. [____________]

VERIFICATION

STATE OF NEW MEXICO )
COUNTY OF [______________] ) ss.

I, [PETITIONER NAME], being first duly sworn, depose and state under penalty of perjury under the laws of the State of New Mexico that I have read the foregoing Verified Petition and that the facts stated therein are true and correct to the best of my knowledge, information, and belief.

___________________________________
[PETITIONER SIGNATURE]

Subscribed and sworn before me this [____] day of [______________], 20[____].

___________________________________
Notary Public
My commission expires: [__/__/____]

PART 3 — MANDATORY FORM 4-999 NOTICE OF HEARING AND RIGHTS

Rule 1-140(G) NMRA requires use of Supreme Court-approved Form 4-999, Notice of Hearing and Rights. Do not substitute a custom notice from this packet.

Form preparation checklist:

☐ Current Form 4-999 downloaded from the New Mexico Courts forms library

☐ Court caption and case number entered

☐ Alleged incapacitated person's name and address entered

☐ Hearing date, time, judicial district, courthouse, address, and judge entered

☐ Petition attached for personal service on the alleged incapacitated person

☐ Every interested person identified on Form 4-992 listed in the notice section

The mandatory form states the alleged incapacitated person's rights to:

1. Obtain an attorney of the person's choice;
2. Object to the individuals appointed as visitor, qualified health care professional, and guardian ad litem;
3. Attend the hearing and request that the hearing be conducted at the person's location if the person cannot be present in court;
4. Present evidence and subpoena witnesses and documents;
5. Examine witnesses, including any court-appointed guardian ad litem, qualified health care professional, and visitor;
6. Otherwise participate in the hearing; and
7. Be personally served with the notice and petition.

The current Form 4-999 warns that the court shall not grant the petition unless the alleged incapacitated person is personally served with both documents.

PART 4 — NOTICE DISTRIBUTION RECORD

Use the interested-person section of Form 4-999 rather than a separately drafted notice. Record completion below and follow the current statute, rules, court order, and clerk instructions for timing and method.

PART 5 — CAPACITY / MEDICAL CERTIFICATION (§ 45-5-303(E))

REPORT OF COURT-APPOINTED QUALIFIED HEALTH CARE PROFESSIONAL

Re: [AIP NAME] Case No.: [_______________________]

Rule 1-143(C)(1) report deadline — no later than fourteen (14) calendar days before hearing: [__/__/____]

I, Dr. [______________________], a qualified health care professional as defined in NMSA § 24-7A-1(R) (physician, physician assistant, nurse practitioner, nurse, psychologist, or social worker), having been appointed by this Court to examine the above-named individual, submit the following report:

5.1 Examination Details

• Date of examination: [__/__/____]
• Place of examination: [_________________________________________]
• License: [_________________] State: [____] License No.: [____________]

5.2 Nature and Degree of Incapacity — § 45-5-303(E)

• Primary diagnoses: [_________________________________________]
• Description of cognitive functioning: [_________________________________________]
• Description of intellectual/developmental functioning: [_________________________________________]
• Description of social functioning: [_________________________________________]

5.3 Functional Findings — § 45-5-303(E)

5.4 Prognosis and Recommendations

• Prognosis: [_________________________________________]
• Expected duration of incapacity: [____________]
• Recommended scope of guardianship: ☐ None ☐ Limited ☐ Full
• Less restrictive supports recommended: [_________________________________________]

___________________________________
Dr. [______________________]

Date: [__/__/____]

PART 6 — GUARDIAN AD LITEM APPOINTMENT, IF NECESSARY (§ 45-5-303.1)

Rule 1-143(B) NMRA requires appointment of a qualified health care professional and visitor upon filing and permits appointment of a guardian ad litem if necessary. Use the court's current appointment order rather than this packet as an appointment order.

Guardian ad litem, if appointed: [________________________________]

Appointment date: [__/__/____]

Rule 1-143(C)(3) report deadline — no later than seven calendar days before hearing: [__/__/____]

☐ Guardian ad litem reviewed the qualified health care professional and visitor reports with the alleged incapacitated person before the hearing, as required by Rule 1-143(E)

PART 7 — ORDER APPOINTING COURT VISITOR (§ 45-5-303(F))

The Court appoints [VISITOR NAME] as court visitor in this matter. The visitor shall:

a. Interview the proposed guardian and AIP personally;
b. Visit AIP's present place of abode and the proposed residence (if different);
c. Evaluate AIP's needs;
d. Submit a written report including recommendation regarding the appropriateness of the proposed guardian and recommendations regarding which aspects of personal care AIP can manage (i) without assistance, (ii) with supports, or (iii) only with guardian supervision;
e. File the report no later than eleven (11) calendar days before the hearing under Rule 1-143(C)(2).

The visitor's appointment terminates upon entry of an order appointing a guardian and acceptance of appointment by the guardian unless otherwise ordered.

Date: [__/__/____]

___________________________________
District Court Judge

PART 8 — LESS RESTRICTIVE ALTERNATIVE ANALYSIS (Statement Filed with Petition)

Pursuant to NMSA § 45-5-303(B)(4) and the Office of Guardianship Act (NMSA § 28-16B-1 et seq., as strengthened by HB 234), Petitioner has analyzed each of the following less restrictive alternatives:

Petitioner's Statement: Based on the foregoing analysis, no less restrictive alternative is sufficient to meet AIP's needs for the following reasons:
[____________________________________________________________]
[____________________________________________________________]

___________________________________
[PETITIONER SIGNATURE]

PART 9 — BOND (§ 45-5-410)

ORDER REQUIRING / WAIVING BOND

Pursuant to NMSA § 45-5-410, the Court ORDERS:

☐ Conservator shall post bond in the penal sum of $[___________], secured by [☐ corporate surety ☐ personal surety ☐ cash ☐ pledged assets].
☐ Bond is waived because:
☐ Estate consists entirely of restricted accounts requiring court order to withdraw
☐ All interested persons have consented in writing
☐ Other good cause: [_________________________________________]

Bond shall be filed with the Clerk before Letters issue.

Date: [__/__/____]

___________________________________
District Court Judge

PART 10 — FORM 4-999 FILING AND SERVICE TRACKING

Hearing date: [__/__/____]

Completed Form 4-999 received or prepared: [__/__/____]

Alleged incapacitated person personally served with Form 4-999 and petition: [__/__/____]

Proof of personal service filed: [__/__/____]

Interested-person distribution completed: [__/__/____]

☐ Current court instructions checked for any remote-hearing information or additional notice order

PART 11 — FINAL ORDER OF APPOINTMENT AND LETTERS (§ 45-5-304; § 45-5-312)

ORDER APPOINTING [☐ LIMITED ☐ FULL] GUARDIAN AND/OR CONSERVATOR

The Court, having held a hearing on [__/__/____], having considered the Verified Petition, the report of the qualified health care professional under § 45-5-303(E), the report of the court visitor under § 45-5-303(F), the report of the guardian ad litem under § 45-5-303.1 if one was appointed, and the testimony presented;

FINDS by clear and convincing evidence that:

1. AIP is an incapacitated person within the meaning of NMSA § 45-5-101(F);
2. AIP's needs cannot be met by less restrictive alternatives;
3. The proposed guardian/conservator is qualified, suitable, and willing to serve;
4. The least restrictive form of guardianship/conservatorship necessary is [☐ limited ☐ full].

IT IS ORDERED:

A. [NAME] is appointed [☐ Limited ☐ Full] Guardian of the Person of [AIP NAME].
B. [NAME] is appointed [☐ Limited ☐ Full] Conservator of the Estate of [AIP NAME].
C. The guardian's powers are: [_________________________________________]
D. The conservator's powers are: [_________________________________________]
E. Bond is set at $[___________] [☐ waived].
F. Letters of Guardianship and Letters of Conservatorship shall issue upon acceptance of appointment and posting of bond.
G. The guardian shall file an annual report; the conservator shall file an inventory within 90 days and an annual accounting.

Date: [__/__/____]

___________________________________
District Court Judge

LETTERS OF GUARDIANSHIP

The Clerk of the [_________] Judicial District Court hereby certifies that [GUARDIAN NAME] has been duly appointed and qualified as Guardian of [AIP NAME], an incapacitated person, with the powers set forth in the Order of Appointment, and is authorized to act as such.

Dated: [__/__/____] Seal: [____]

___________________________________
Clerk of the District Court

LETTERS OF CONSERVATORSHIP

The Clerk of the [_________] Judicial District Court hereby certifies that [CONSERVATOR NAME] has been duly appointed and qualified as Conservator of the Estate of [AIP NAME], having posted bond in the amount of $[___________] (or bond waived), and is authorized to act as such.

Dated: [__/__/____] Seal: [____]

___________________________________
Clerk of the District Court

PART 12 — INITIAL INVENTORY & ANNUAL ACCOUNTING REFERENCE (§ 45-5-418)

12.1 Initial Inventory (due within 90 days of appointment)

Conservator shall file with the Court and serve on the protected person and interested persons an inventory describing all property of the protected person, including:

12.2 Annual Accounting and Guardian's Report

• Conservator's annual accounting — receipts, disbursements, asset balances; supported by bank statements (NMSA § 45-5-418).
• Guardian's annual report — AIP's residence, physical/mental condition, services received, summary of contact, recommendation regarding continued need for guardianship (NMSA § 45-5-314).
• Filed within thirty (30) days of the anniversary of appointment.
• Served on AIP, AIP's attorney, and interested persons who requested notice.

12.3 Recordkeeping Best Practices

☐ Maintain separate fiduciary checking account titled "[NAME], Conservator for [AIP NAME]"
☐ Never commingle conservator funds with personal funds
☐ Keep all receipts and supporting documentation for 7 years
☐ Document all decisions impacting AIP's residence, care, and finances
☐ Obtain court approval for sale of real estate or distributions outside ordinary maintenance

SOURCES AND REFERENCES

• NMSA 1978, Chapter 45, Article 5 (Uniform Probate Code — Protection of Persons Under Disability and Their Property)
• Rule 1-140 NMRA — mandatory guardianship and conservatorship forms
• Rule 1-143 NMRA — professional appointments and report deadlines
• Supreme Court Form 4-999 — Notice of Hearing and Rights
• NM Office of Guardianship: https://www.nmcdd.org/office-of-guardianship/
• NM Supreme Court Self-Help: https://selfrepresentation.nmcourts.gov/
• HB 234 (2024) — Office of Guardianship reform
• WINGS (Working Interdisciplinary Network of Guardianship Stakeholders) New Mexico
• NM District Court Local Rules (consult county-specific rules)

END OF NEW MEXICO ADULT GUARDIANSHIP / CONSERVATORSHIP PETITION PACKET