Right to counsel

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Legislation, Guardianship/Conservatorship of Adults - Protected Person

Courts must appoint counsel for the person to be protected in a conservatorship proceeding.  N.M. Stat. § 45-5-407(B) (long-term conservators).  Additionally, counsel must be provided to any indigent, incapacitated adult in a guardianship hearing.  N.M. Stat. § 45-5-303(C) (in guardianship proceeding, "Unless an alleged incapacitated person already has an attorney of the alleged incapacitated person's own choice, the court shall appoint an attorney to represent the alleged incapacitated person. The court-appointed attorney in the proceeding shall have the duties of a guardian ad litem …"); § 45-5-307(D)  (for review/termination of guardianship, "the court shall follow the same procedures to safeguard the rights of the incapacitated person as those that apply to a petition for appointment of a guardian as set forth in Section 45-5-303 NMSA 1978.")


Originally, the court was also required to appoint counsel for the alleged incapacitated person in temporary guardianship [N.M. Stat. § 45-5-310(B)] and temporary conservatorship [N.M. Stat. § 45-5-408(B)] proceedings, but in 2022, the New Mexico legislature passed SB 35, which amended these sections of the code, changing "counsel" to "guardian ad litem."  Under the Uniform Probate Code, § 45-5-101, a "guardian ad litem" is defined as "a person appointed by the district court to represent and protect the interests of a minor or an incapacitated person in connection with litigation or any other court proceeding[,]" so it seems that the GAL need not be an attorney.

Appointment of Counsel: categorical Qualified: yes