VERIFIED PETITION FOR APPOINTMENT OF GUARDIAN
(State of New Mexico • Probate Court)
[// GUIDANCE: This template is intentionally broad so it can be used for (i) a minor, (ii) an adult alleged to be incapacitated, or (iii) a limited-purpose guardianship. Delete any inapplicable provisions during customization.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Operative Provisions
3.1 Jurisdiction & Venue
3.2 Parties & Capacity Allegations
3.3 Necessity for Guardianship
3.4 Proposed Guardian; Qualifications & Consents
3.5 Scope of Guardianship Requested
3.6 Bond & Liability Allocation
3.7 Reporting & Plan Requirements - Representations & Warranties
- Covenants & Restrictions
- Default & Remedies
- Risk Allocation
- Dispute Resolution
- General Provisions
- Execution Block (Signature, Verification, Notary)
1. DOCUMENT HEADER
1.1 Title
VERIFIED PETITION FOR APPOINTMENT OF GUARDIAN PURSUANT TO N.M. STAT. ANN. §§ 45-5-101 et seq.
1.2 Parties & Identifying Information
• Petitioner: [PETITIONER FULL LEGAL NAME], [relationship to the Alleged Incapacitated Person (“AIP”) or Minor]
• Alleged Incapacitated Person/Minor: [FULL LEGAL NAME] (“Proposed Ward”)
• Proposed Guardian: [FULL LEGAL NAME] (collectively with the Petitioner, the “Petitioning Parties”)
1.3 Court & Case Data
Filed in the Probate Court of [COUNTY], State of New Mexico (the “Court”).
Case No. ____ (to be assigned by the Clerk).
1.4 Effective Date
This Petition is deemed filed on the date and time stamped by the Clerk of Court (the “Effective Date”).
2. DEFINITIONS
For purposes of this Petition, capitalized terms have the meanings set forth below. Terms defined in this Section appear in alphabetical order.
“Annual Report” means the yearly guardianship report required to be filed with the Court under N.M. Stat. Ann. § 45-5-209(H) and related court rules.
“Bond” means the surety bond (or equivalent restricted account or other security) required pursuant to Section 3.6 of this Petition and as ordered by the Court.
“Fiduciary Duty” means the highest duty of loyalty, care, and good faith owed by the Guardian to the Ward under New Mexico law.
“Guardian” means the person appointed by the Court to exercise some or all powers over the person of the Ward.
“Guardianship Plan” means the initial plan for the Ward’s care, custody, and control to be filed within sixty (60) days of the appointment, unless the Court orders otherwise.
“Incapacitated Person” has the meaning assigned in N.M. Stat. Ann. § 45-5-101(A) (adult) or § 45-5-201(A) (minor).
“Ward” means the person for whom a Guardian is sought (i.e., the AIP or Minor).
[// GUIDANCE: Add or delete definitions as appropriate for the facts of the case.]
3. OPERATIVE PROVISIONS
3.1 Jurisdiction & Venue
(a) The Court has jurisdiction under N.M. Stat. Ann. §§ 45-5-101 et seq. (the “Act”).
(b) Venue is proper in [COUNTY] because the Ward [resides / is present] in this county.
3.2 Parties & Capacity Allegations
(a) The Ward is [age] years old and, as described in the medical/psychological report attached hereto as Exhibit A, [is an Incapacitated Person / is a minor whose parents are unable or unwilling to exercise parental rights].
(b) The Ward’s current residence is [ADDRESS].
(c) The Petitioner is [relationship] and is an interested person under the Act.
(d) Required notices have been or will be given to all interested persons listed in Exhibit B.
3.3 Necessity for Guardianship
(a) Alternatives less restrictive than guardianship were considered and found insufficient, including: [supported decision-making, powers of attorney, advance directives, etc.]
(b) Without a Guardian, the Ward is at substantial risk of harm to person and/or property.
3.4 Proposed Guardian; Qualifications & Consents
(a) The Proposed Guardian is [NAME], whose address is [ADDRESS] and whose occupation is [OCCUPATION].
(b) The Proposed Guardian is over eighteen (18) years of age, is not disqualified under the Act, and consents to serve.
(c) A criminal background check summary and guardian questionnaire are attached as Exhibit C.
(d) The Proposed Guardian is willing to post any Bond required by the Court.
3.5 Scope of Guardianship Requested
Petitioner requests a [Limited / Plenary] guardianship:
• Personal decision-making authority over medical care, housing, education, and general welfare.
• Financial authority limited to applying the Ward’s governmental benefits toward personal needs, unless a separate conservatorship is established.
[// GUIDANCE: If a concurrent conservatorship is sought, reference that separate petition here.]
3.6 Bond & Liability Allocation
(a) Pursuant to the Court’s inherent power and N.M. Stat. Ann. § 45-5-101 et seq., Petitioner requests Bond in the initial penal sum of $[AMOUNT] or such other amount the Court deems appropriate.
(b) The Bond shall secure the Guardian’s faithful performance of Fiduciary Duties and any damages resulting from breach thereof.
(c) Liability of the Guardian is otherwise limited to the value of the Bond unless the Guardian’s misconduct is willful or grossly negligent.
3.7 Reporting & Plan Requirements
(a) Guardianship Plan. The Guardian shall file a written Guardianship Plan within sixty (60) days of appointment.
(b) Annual Report. The Guardian shall file an Annual Report each year within thirty (30) days after the anniversary of appointment.
(c) Inventory of Assets (if applicable). If the Guardian takes control of assets in excess of $5,000, an inventory shall be filed within ninety (90) days.
4. REPRESENTATIONS & WARRANTIES
4.1 The Petitioner represents and warrants to the Court that:
(a) All facts set forth herein are true to the best of Petitioner’s knowledge, information, and belief formed after reasonable inquiry.
(b) No material fact affecting the Court’s jurisdiction or the best interests of the Ward has been omitted.
(c) Exhibits A-C are true and correct copies of the original documents.
4.2 Survival. These representations survive the Court’s decision on this Petition.
5. COVENANTS & RESTRICTIONS
5.1 The Proposed Guardian covenants that, upon appointment, he/she/they will:
(a) Fulfill all Fiduciary Duties imposed by law;
(b) Maintain accurate records and make them available for Court review on demand;
(c) Seek Court approval before making any major life decision not expressly authorized herein (e.g., change in residence, major medical treatment, or educational placement).
5.2 Restrictions. The Guardian shall not:
(a) Commit the Ward to a psychiatric facility for longer than seventy-two (72) hours without Court order;
(b) Delegate guardianship powers to another person absent Court approval;
(c) Apply to serve as representative payee for federal benefits without simultaneously notifying the Court.
6. DEFAULT & REMEDIES
6.1 Events of Default
(a) Failure to file any required report within statutory deadlines;
(b) Misapplication or misuse of the Ward’s funds;
(c) Breach of any Fiduciary Duty;
(d) Failure to maintain Bond.
6.2 Notice & Cure
The Court may, in its discretion, issue an order to show cause giving the Guardian ten (10) days to cure any default prior to suspension or removal.
6.3 Remedies
(a) Suspension or removal of the Guardian;
(b) Surcharge against the Bond;
(c) Contempt sanctions;
(d) Any other relief deemed just and proper.
6.4 Attorney Fees & Costs
In the event of a default, the Guardian shall be personally liable for reasonable attorney fees and costs incurred by the Ward or any interested person in enforcing the Guardian’s duties.
7. RISK ALLOCATION
7.1 Indemnification. The Guardian shall indemnify and hold harmless the Ward, the Ward’s estate, and the Court from any loss arising out of the Guardian’s breach of Fiduciary Duty, subject to the Bond limitations in Section 3.6.
7.2 Insurance. Petitioner requests authority for the Guardian to obtain errors & omissions insurance if commercially available and cost-effective.
7.3 Force Majeure. Non-performance due to acts of God, war, epidemic, or disaster shall not relieve the Guardian of reporting obligations but shall be considered in any determination of breach.
8. DISPUTE RESOLUTION
8.1 Governing Law. This Petition and any resulting Guardianship are governed by the laws of the State of New Mexico, including the Act and local court rules.
8.2 Forum Selection. Exclusive jurisdiction lies in this Probate Court.
8.3 Arbitration. Arbitration is not available for guardianship matters.
8.4 Jury Waiver. Jury trial is not available in the Probate Court for the relief requested herein.
8.5 Injunctive Relief. The Court retains authority to issue protective and injunctive orders as necessary for the Ward’s immediate safety.
9. GENERAL PROVISIONS
9.1 Amendment & Waiver. Any amendment to the Guardianship Plan or scope of authority must be approved by the Court.
9.2 Assignment. Guardianship powers are personal to the Guardian and may not be assigned.
9.3 Successors. Upon resignation, suspension, or removal, a successor guardian may be appointed in accordance with the Act.
9.4 Severability. If any provision of the Court’s order is held invalid, the remaining provisions shall remain enforceable to the fullest extent permissible.
9.5 Integration. The Court’s order and any approved Guardianship Plan constitute the entire arrangement between the Guardian and the Ward regarding authority granted.
9.6 Electronic Signatures. Electronic filings and e-signatures conforming to New Mexico court rules shall be deemed originals.
10. EXECUTION BLOCK
Respectfully submitted this ___ day of __, 20_.
[PETITIONER NAME], Petitioner
Address: ______
Phone: _______
[PROPOSED GUARDIAN NAME], Proposed Guardian
Address: ______
Phone: _______
VERIFICATION
STATE OF NEW MEXICO )
COUNTY OF ____ ) ss.
I, [PETITIONER NAME], being first duly sworn, depose and state that I have read the foregoing Verified Petition and that the factual statements contained therein are true and correct to the best of my knowledge, information, and belief.
[PETITIONER NAME]
Subscribed and sworn before me this ___ day of __, 20_.
Notary Public
My Commission Expires: __
[// GUIDANCE: Repeat the verification for the Proposed Guardian if local practice requires.]
SERVICE LIST
[// GUIDANCE: Attach a certificate of service and list all interested persons to whom notice will be given, using court-approved forms where available.]
END OF DOCUMENT