Right to counsel

Generally

Indigent respondents in involuntary protective matters have the right to client-directed counsel, at least in nonemergency and renewal of ex-parte emergency order cases.  Because the right to counsel does not attach immediately upon the entry of an ex parte order or emergency protective custody, the right to counsel is classified as "qualified."

Services are generally provided consensually absent incapacity or emergency

 

In New Mexico, adult protective services can generally only be provided to an adult with capacity if the adult consents. As to the provision of services consensually, the statute provides: 

 

Any adult who has been abused, neglected or exploited and is in need of protective services or protective placement as determined by the department and who consents to those services or placement shall receive them. If the adult withdraws or refuses consent, voluntary protective services or protective placement shall not be provided. No legal rights are relinquished as a result of acceptance of voluntary protective services or protective placement. 

 

N.M. Stat. § 27-7-23; see also § 27-7-19 (“The department shall: ... develop a plan to provide an adult with or refer an adult for protective services, protective placement or other intervention services, unless the department determines that the adult is knowingly and voluntarily refusing services") and § 27-7-21 ("Protective services are short-term services furnished by the department or under arrangement through the department to an incapacitated or protected adult who has been abused, neglected or exploited and with the adult's consent or appropriate legal authority"). 

 

However, if an adult lacks the ability to consent and “no person authorized by law or court order to give consent to the adult is available or willing to consent”, protective services can be sought involuntarily through an ex parte order for emergency protective services, N.M. Stat. § 27-7-25, emergency protective placement without court order, § 27-7-25.1, or through nonemergency protective services or placement, § 27-7-26. 

 

Ex parte orders for emergency services or placement

Right to counsel at hearing held within 10 days

 

Protective services or protective placement through an emergency ex parte order may be provided for a period of up to 10 days. N.M. Stat. § 27-7-25(F)(3).  Though there is no appointment of counsel provision upon the entry of an ex parte order, notice of the order is served to the adult. Id. at (F)(6).  The notice informs the adult that a hearing must be scheduled within 10 days to determine whether the original order needs to be renewed, id. at (G), and “[t]he hearing upon an application for renewal shall be held pursuant to the provisions of Section 27-7-27 NMSA 1978.” Id. at (H).  Section 27-7-27(A)(2) does provide the adult with the right to court appointed counsel if the adult is indigent.

 

Emergency protective placement by a law enforcement officer without court order

Right to counsel at hearing held within 10 days of the filing of a petition

 

If “due to the emergency nature of the circumstances”, it is not possible to follow the procedures in Section 27-7-25 as to ex parte orders, a law enforcement office may take an incapacitated adult into protective custody. N.M. Stat. § 27-7-25.1(A).  But within two working days of placing the adult in protective custody, a petition must be filed pursuant to that section, id. at (C), and a hearing must be held within ten days “to determine whether the conditions creating the need for the emergency placement have been removed and whether the adult should be released from protective placement.” Id. at (E).  Again, the procedures used are those found in Section 27-7-27, so the adult has a right to counsel if indigent. Id.

 

Nonemergency protective services or placement

Right to counsel

Nonemergency protective services or placement matters are governed by Section 27-7-7, and indigent adults have the right to appointed counsel. N.M. Stat. § 27-7-27(A).  The attorney serves in a client-directed role as opposed to a best interests or guardian ad litem role. Id. at (B).

 

Guardianship context

 

Finally, the department is authorized to pursue guardianship or conservatorship matters if necessary. See § 27-7-24 ("If an adult lacks the ability to consent to receive protective services or protective placement, those services or placement may be ordered by a court on an involuntary basis through an emergency order pursuant to the Adult Protective Services Act or through appointment of a guardian or conservator.”) (emphasis added). 

 

For information about the right to counsel in adult guardianship matters, please see Legislation, Guardianship/Conservatorship of Adults - Protected Person.