How Do I Create a Conservatorship for My Child in New Mexico?
Conservatorship is established by court order after a petition is filed. We can assist you with searching to locate forms or we can draft add forms you may need to our database. However, we cannot advise you to use one particular form over another that address the same matter. We can show you what is available. You can take a look at the forms below and see if they fit your need. If they do not, let me know and we may be able to add a form for your need. You may order a form or package by phone by calling Toll Free: 1-(877) 389-0141 - 8:30-5:00 Central Time Zone Monday – Friday.
Please see the following NM statutes:
45-5-404. Original petition for appointment of conservator.
A. Any of the following persons may petition for the
appointment of a conservator:
(1) the person for whom a conservator is sought;
(2) any person who is interested in the estate, affairs or
welfare of the person to be protected, including his spouse,
parent, guardian or custodian; or
(3) any person who would be adversely affected by lack of
effective management of the property and affairs of the
person to be protected.
B. The petition shall state the following:
(1) the interest of the petitioner;
(2) the name, age, residence and address of the person for
whom a conservator is sought;
(3) the name and address of the guardian, if any, of the
person for whom a conservator is sought;
(4) the names and addresses, as far as known or as can be
reasonably ascertained, of the persons most closely related
by blood or marriage to the person for whom a conservator is
(5) the approximate value and description of the property of
the person for whom a conservator is sought including any
compensation, insurance, pension or allowance to which the
person may be or is entitled;
(6) the reasons why appointment of a conservator is
necessary, including but not limited to evidence of the
person's recent behavior that demonstrates gross
mismanagement of his income and resources to the extent that
it has led or is likely to lead in the near future to waste
and dissipation of the income and resources;
(7) the name and address of the person or institution, if
any, having the care and custody of the person for whom a
conservator is sought;
(8) the steps taken to find less restrictive alternatives to
the proposed conservatorship;
(9) the name and address of the person whose appointment is
(10) the basis of his priority for appointment;
(11) the names and addresses of any other persons for whom
the proposed conservator is a conservator if the proposed
conservator is an individual; and
(12) the qualifications of the proposed conservator.
45-5-405. Notice in conservatorship proceedings.
A. In a proceeding for the appointment or removal of a
conservator of an incapacitated person or a person to be
protected, other than the appointment of a temporary
conservator or the temporary suspension of a conservator,
notice of hearing and a copy of the petition and any interim
orders that may have been entered shall be given to each of
(1) the person to be protected; and
(2) his spouse, parents and adult children, or if there are
no adult children, at least one of his closest adult
relatives if any can be found.
Notice of hearing shall be given to any person who is
serving as the guardian or conservator of the person to be
protected or who has primary responsibility for his care.
B. Notice shall be served personally on the person to be
protected and his spouse if the spouse can be found within
New Mexico. Notice to an out-of-state spouse, parent and all
other persons, except the person to be protected, shall be
given as provided in Section 45-1-401 NMSA 1978.
C. At least fourteen days' notice shall be given before the
hearing takes place. The notice should be in plain language
and large type and shall include the following information
and shall be substantially in the following form:
TO: (name and address of person receiving notice)
On (date of hearing) at (time of hearing) in (place of
hearing) at (city), New Mexico, the (name and address of
court) will hold a hearing to determine whether a
conservator should be appointed for (name of the person to
be protected). The purpose of this proceeding is to appoint
a conservator. A copy of the petition requesting appointment
of a conservator is attached to this notice.
At the hearing, the court will determine whether (name of
person to be protected) needs to be protected by a
conservator under New Mexico law.
If the court finds that (name of the person to be protected)
is in need of a conservator, the court at the hearing shall
also consider whether (name of proposed conservator, if any)
should be appointed as conservator of (name of person to be
protected). The court may, in its discretion, appoint some
other qualified person as conservator. The court may also,
in its discretion, limit the powers and duties of the
conservator to allow (name of person to be protected) to
retain control over certain activities.
(Name of person to be protected) shall attend the hearing
and be represented by an attorney. The petition may be heard
and determined in the absence of (name of person to be
protected) if the court determines that the presence of
(name of person to be protected) is not required. If (name
of person to be protected) attends the hearing and is not
represented by an attorney, the court shall appoint an
attorney to represent the person to be protected.
(signature of petitioner)".
D. Notice of a petition for appointment of a conservator and
of any subsequent hearing shall be given to any interested
person who has filed a request for notice under
Section 45-5-406 NMSA 1978 and to such other persons as the
court may direct. Except as otherwise provided in
Subsection A of this section, notice shall be given in
accordance with Section 45-1-401 NMSA 1978.
45-5-407. Procedure for court appointment of a conservator.
A. Upon receipt of a petition for appointment of a
conservator or other protective order because of minority,
the court shall set a date for hearing on the matters
alleged in the petition. If at any time in the proceeding
the court finds the minor is or may be inadequately
represented, it may appoint an attorney to represent the
minor, giving consideration to the choice of the minor if
fourteen years of age or older. An attorney appointed by the
court to represent a minor shall represent and protect the
interests of the minor.
B. Upon receipt of a petition for appointment of a
conservator for reasons other than minority, the court shall
set a date for hearing. Unless the person to be protected is
already represented by an attorney of his own choice, the
court shall appoint an attorney to represent him in the
proceeding. The court-appointed attorney shall have the
duties of a guardian ad litem as set forth in
Section 45-5-404.1 NMSA 1978.
C. If the petition is for the appointment of a conservator
for an incapacitated person, the person to be protected
shall be examined by a qualified health care professional
appointed by the court who shall submit a report in writing
to the court. The report shall:
(1) describe the nature and degree of the person's
incapacity, if any, and the level of the intellectual,
developmental and social functioning of the person to be
(2) contain observations, with supporting data, regarding
the ability of the person to be protected to manage his
estate or financial affairs.
D. The court shall also appoint a visitor who shall
interview the person seeking appointment as conservator and
the person to be protected. The visitor shall also visit the
present place of residence of the person to be protected.
The visitor shall evaluate the needs of the person to be
protected and shall submit a written report to the court.
The report shall include a recommendation regarding the
appropriateness of the appointment of the proposed
conservator. The report shall also include recommendations
(1) those aspects of his financial affairs that the person
to be protected can manage without supervision or
(2) those aspects of his financial affairs that the person
to be protected could manage with the supervision or
assistance of support services and benefits; and
(3) those aspects of his financial affairs that the person
to be protected is unable to manage even with the
supervision or assistance of support services and benefits.
Unless otherwise ordered by the court, the appointment of
the visitor terminates and the visitor is discharged from
his duties upon entry of the order appointing the
conservator and acceptance of the appointment by the
E. The person to be protected shall be present at the
hearing on the issues raised by the petition and any
response to the petition, unless the court determines it is
not in the best interest of the person for whom a
conservator is sought to be present because of a threat to
the health or safety of the person for whom a conservator is
sought or others as determined by the court. The court upon
request or its own motion may conduct hearings at the
location of the person to be protected if he is unable to be
present in court.
F. The person to be protected shall not be permitted by the
court to consent to the appointment of a conservator.
G. The court, at the hearing on the petition for appointment
of conservator, shall:
(1) inquire into the nature and extent of the functional
limitations of the person to be protected; and
(2) ascertain his capacity to manage his financial affairs.
H. If it is determined that the person to be protected
possesses the capacity to manage his estate or financial
affairs, or both, the court shall dismiss the petition.
I. Alternatively, the court may appoint a full conservator,
as requested in the petition, or a limited conservator and
confer specific powers of conservatorship after finding in
the record based on clear and convincing evidence that:
(1) the person to be protected is totally incapacitated or
is incapacitated only in specific areas as alleged in the
(2) the conservatorship is necessary as a means of
effectively managing the estate or financial affairs, or
both, of the person to be protected;
(3) there are not available alternative resources that
enable the effective management of the estate and financial
affairs of the person to be protected;
(4) the conservatorship is appropriate as the least
restrictive form of intervention consistent with the
preservation of the property of the person to be protected;
(5) the proposed conservator is both qualified and suitable
and is willing to serve.
J. After hearing, upon finding that a basis for the
appointment of a conservator has been established, the court
shall make an appointment of a conservator. The court shall
appoint a limited conservator if it determines that the
incapacitated person is able to manage some but not all
aspects of his estate and financial affairs. The court shall
specify those powers that the limited conservator shall have
and may further restrict each power so as to permit the
incapacitated person to care for his estate and financial
affairs commensurate with his ability to do so.
K. A person for whom a conservator has been appointed
retains all legal and civil rights except those that have
been specifically granted to the conservator by the court.
The conservator shall exercise his supervisory powers over
the estate and financial affairs of the incapacitated person
in a manner that is the least restrictive form of
intervention consistent with the order of the court.
L. The rules of evidence shall apply and no hearsay evidence
that is not otherwise admissible in a court shall be
admitted into evidence except as otherwise provided in the
Uniform Probate Code.
M. A record of the proceedings shall be made if requested by
the person to be protected, his attorney or when ordered by
the court. Records, reports and evidence submitted to the
court or recorded by the court shall be confidential, except
that the public shall be granted access to the following
(1) docket entries;
(2) date of the proceeding, appointment and termination;
(3) duration of the conservatorship and whether limited or
(4) for a limited conservatorship, the nature of the
(5) the name and other information necessary to identify the
alleged incapacitated person.
N. Notwithstanding the provisions of Subsection M of this
section, any disclosure of information shall not include any
diagnostic information, treatment information or other
medical or psychological information.
O. The issue of whether a conservator shall be appointed
shall be determined by the court at a closed hearing unless
the person to be protected requests otherwise.
P. Upon request of the petitioner or person to be protected,
the court shall schedule a jury trial.
Q. Upon entry of an order appointing a conservator, a copy
of the order shall be furnished to the person for whom the
conservator was appointed and that person's counsel. The
order shall contain the name and address of the conservator
as well as notice to the person for whom the conservator was
appointed of that person's right to appeal the appointment
and of that person's right to seek alteration or termination
of the conservatorship at any time.