Discretionary appointment of counsel

The court may appoint counsel for a minor in a guardianship or conservatorship matter.  Because the attorney may serve in a best interests role, the discretionary appointment of counsel is classified as “qualified.”

Guardianship 

Establishment, removal, modification and other matters

Discretionary appointment

A statute provides for the discretionary appointment of counsel for minors subject to guardianship matters:

If, at any time in the proceeding [to appoint a guardian of a minor], the court finds the minor is or may be inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the preference of the minor if the minor is fourteen years of age or older.

N.M. Stat. § 45-5-207(D).  The statute does not specify the attorney’s role, whether best interests or client-directed.

In regards to the removal of court-appointed guardians, the statute allows “[a]ny person interested in the welfare of a protected person, or the protected person if fourteen or more years of age, [to] petition for removal of a guardian on the ground that removal would be in the best interest of the protected person.”  In removal, resignation, appointment of successor guardians, or “other post-appointment proceedings”, the court may appoint counsel.  The statute incorporates the same discretionary language as that used above. See § 45-5-212 (“If at any time in the proceeding the court finds that the interest of the protected person is or may be inadequately represented, it may appoint an attorney to represent the minor…”).

Conservatorship

Establishment and termination matters 

Discretionary appointment in appointment matters and in termination matters, if minor seeks termination 

Similarly, the part covering conservatorship matters has the same language in its discretionary appointment provision. See N.M. Stat. § 45-5-407(A) [“Procedure for court appointment of a conservator”].  However, unlike the guardianship appointment provision, the section specifies that the attorney’s role is to “represent and protect the interests of the minor.” Id.

In regards to the termination of a minor’s conservatorship, the minor or any other person interested in their welfare can file a petition to terminate.  However, if the minor files the petition, the same discretionary appointment provision attaches. See § 45-5-430 (“A protected person seeking termination is entitled to the same rights and procedures as in an original proceeding for a protective order.”).