Right to counsel

There is a right to an attorney for unrepresented adults in plenary guardianship and conservatorship establishment proceedings, but in an ad litem role.  Because the right to counsel does not apply in temporary establishment matters and because the representation provided is best interests and not client-directed, the right to counsel is classified as "qualified." 

 

Guardianship / Conservatorship

 

Establishment (Plenary)

 

Right to attorney ad litem

 

If the adult respondent to a petition for the appointment of a guardian or conservator is unrepresented, the court must appoint counsel, regardless of indigency. See N.M. Stat. §§ 45-5-303(D) ["Procedure for court appointment of a guardian of an incapacitated person"]; 45-5-407(B) ["Procedure for court appointment of a conservator"]. 

 

However, counsel serves in a guardian ad litem role. N.M. Stat. §§ 45-5-303(D); 45-5-407(B).

 

Establishment (Temporary)

 

Right to guardian ad litem, who may or may not be an attorney

 

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.

Guardianship Modification: Enlargement of guardianship sought

Right to attorney ad litem

In matters related to guardianship modification, if the proceeding seeks to increase the guardian's authority or reduce the autonomy of the adult, the same procedures apply as those found in Section 45-5-303. See N.M. Stat. § 45-5-307(E).  Accordingly, the court must appoint an attorney ad litem for an unrepresented adult.

Guardianship termination matters

Right to attorney ad litem "unless waived by the court"

In regards to removing a guardian, N.M. Stat. § § 45-5-307(C) states, "The incapacitated person or any person interested in the incapacitated person's welfare may petition for an order that the incapacitated person is no longer incapacitated and for removal or resignation of the guardian." 

The procedures followed, "[u]nless waived by the court", must be 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." Id. at (D).  Accordingly, an unrepresented adult would likely have the right to an attorney ad litem.

Guardianship review matters

Discretionary appointment of attorney ad litem

If the court receives a "request for review" of the guardianship, "[t]he court has the option to follow all or part of the procedures that apply for the appointment of a guardian as set forth in Section 45-5-303 NMSA 1978." N.M. Stat. § 45-5-307(F).

Conservatorship Termination

Right to attorney ad litem if the protected person seeks termination

Section 45-5-430 states as to petitions for termination of conservatorships:

The protected person, his personal representative, the conservator or any other person interested in the welfare of a person for whom a conservator has been appointed may petition the court to terminate the conservatorship. A protected person seeking termination is entitled to the same rights and procedures as in an original proceeding for a protective order. 

The language  "same rights and procedures as in an original proceeding" implies that the court must appoint an attorney ad litem for an unrepresented adult who has filed the petition to terminate.