Disclaimer: We are not attorneys and the information below is a general overview of healthcare practices. Please confer with a qualified attorney prior to taking any action, especially regarding court ordered services.
When does a person need a guardian?
A person needs a guardian when they are no longer capable of making appropriate decisions for themselves regarding their housing, personal care, medications, or other things they need to be safe and healthy, and have not appointed a personal representative to make these decisions.
Who decides when a person is incapacitated, or incapable of making appropriate decisions for themselves?
A Qualified Health Professional (usually a Primary Care Physician, Psychiatrist or Psychologist) will make this determination based on a physical exam and testing of cognitive skills.
Is guardianship the only option for someone who is incapacitated?
No, if someone has completed and signed a Power of Attorney form, appointing a person they felt they could trust to be their decision maker a guardianship is usually not necessary. This individual would only need a guardian if it was found that the designated decision maker was making decisions that put the incapacitated person at risk.
When is a corporation, like Necessity CMC, LLC, appointed?
A corporate guardian is appointed when there are no family members, or interested persons (usually a close friend) who are willing , able, or deemed appropriate by the court to be acceptable to serve in this capacity.
If I want to petition the court for guardianship of a family member, how would I do it?
To petition for guardianship, you should hire an attorney that works in the area of probate. This attorney would then find professionals in the community who could serve as a Medical Healthcare Professional, a Guardian at Litem, and a Court Visitor. The petitioning attorney would also file all related documentation and request a hearing date in the District Court that the alleged incapacitated person lives in.
What are the costs for this type of proceeding, and who pays for it?
In New Mexico, the average cost of a guardianship proceeding runs between $3,00.00 and $6,000.00. This is usually paid out of the alleged incapacitated person's estate.
What if the alleged incapacitated person can't afford to pay that?
If an alleged incapacitated person meets the eligibility requirements maintained by the Office of Guardianship (see Contract Work under Fee Structure), the costs may be picked up by the State.
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