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| New Mexico's Third Judicial District Court |
Guardians of last resort are appointed for incapacitated persons when no family or interested friends are located, or if family refuses or is unable to serve. In the guardianship process, there is a guardian ad litem, an attorney appointed by the court, to present the alleged incapacitated person’s declared position to the court.
He or she, as an arm of the court, may also make independent conclusions and recommendations based upon statutorily mandated investigation. The court also appoints a court visitor to investigate the client’s needs, interviews all the other professionals involved, all family members and interested persons, as well as reviews any available medical records.
The court appoints a qualified health care professional, who is to test the person for capacity or incapacity. All file reports with the court prior to the final hearing. The process for initiating the guardianship, notice requirements and the duties of the guardian, visitor, qualified health care professional and guardian ad litem are spelled out in the New Mexico statutes. The alleged incapacitated person may also retain his or her own attorney to represent them during the process.
If a family member surfaces after the appointment of a guardian of last resort, and expresses interest in serving, the guardian ad litem and the court visitor will interview the family member, and report to the court. The decision on who will be appointed is left to the discretion of the court. Once the court has read the reports, hears the testimony from all involved parties, the court then can decide to terminate the guardianship and conservatorship, limit the guardianship as it sees fit, or make it a full guardianship.
As a court-appointed conservator, statutes require the appointed person to marshal and secure all assets, which includes bank accounts, investment accounts, real property, vehicles, and all items of value. Conservators are required to file an inventory within 90 days, detailing all assets of the protected person. Thereafter annual reports are required to be filed with the court. There are auditors hired by the courts who are charged with reviewing these reports. If there are any questions or concerns, the court schedules a status conference to inquire about the auditor’s findings.
Placement of protected persons is chosen based on their needs, their financial status, and the availability of open beds. There is a relationship built with health care facilities to make certain protected persons are receiving the appropriate care.
Guardians of last resort are just that. There is no solicitation for clients from physicians, health care facilities or hospitals. There are no “kickbacks” or funds accepted from any physician, facility or hospitals, nor are referrals accepted from any of those entities. There is a fee for guardian and conservator services provided by guardians of last resort. Guardians and conservators do charge for their services. The hourly rate can be from $85 to $125 an hour, charged by the tenth of an hour. None of the expenses are paid by Medicare or Medicaid. The State Office of Guardianship does pay for guardian services for indigent people but has a long waiting list.
As nationally certified guardians, we are all required to follow the National Guardianship Association Model Code of Ethics and the Standards of Practice. These documents can be found at National Guardianship Association website. Nationally Certified Guardians are required to have continuing education to recertify every year.
Sandy Meyer, a national certified guardian, owns Advocate Services of Las Cruces, LLC
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