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NM Developmental DisabilitiesPlanning Council (DDPC)
DDPC Federal Projects505-476-7324
Brain Injury Advisory Council (BIAC)505-476-7328
Guardianship Program505-476-7332
Center for Self-Advocacy505-341-0036
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DDPC GUARDIANSHIP PROGRAM
Frank Fajardo, Deputy DirectorRosalie Fragoso, AttorneyJoeann Montoya, Compliance OfficerLinda Quintero Dow, Compliance Officer________, Intake Coordinator Ph: 505-476-7332 or 888-779-6183Website: http://www.nmddpc.com
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OUR SERVICES state-wide
Contract Professional “corporate” Guardians – as a last resort; under the Probate Code
Local contractors for Legal Services for Court appointed family and corporate guardianships Petitioning Attorneys – our cases/contractors only Guardian ad Litem (GAL) – our cases/contractors only Court Visitors – our cases/contractors only
Mental Health Treatment Guardians under the Mental Health Code
Information, training, and education
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Eligibility for our services for Eligibility for our services for Probate CodeProbate Code Guardianship – referrals to our officeGuardianship – referrals to our office
for the person in need of guardianship:for the person in need of guardianship: Adults (must be 18 or older; we accept referrals 3 months before 18th birthday). Must be financially and otherwise eligible for Medicaid or
a similar public benefit.
For legal services to become a family guardian: household income of the person who wants to be a guardian must be less then 200% of poverty. includes legal services for guardianship court
proceedings.
Referrals for Mental Health Treatment Guardians to NAMI or FICDAC – as a last resort/no one else is available
Nat’l Alliance for Mental Illness (NAMI) of NM, Ph: 800-953-6745
Forensic Intervention Consortium of Dona Ana County (FIC-DAC) Las Cruces, NM
for the entire southern part of New Mexico
Ron Gurley, Executive Director
Cell: 575-649-2846, Office: 575-523-8015; Email: [email protected]
Other organizations we work with re: Mental Health Treatment Guardians:
Letticia Garcia; regarding training
Ph: 505-425-8175
Disability Rights NM - regarding rights of individuals
Ph: 800-432-4682 or 505-256-3100
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Can the person give informed Consent?
Competent - person is mentally and physically capable of making and communicating their own decisions (giving informed consent)
Informed – full disclosure; patient understands the: nature of the decision (e.g. treatment or medication); benefits, risks, and drawbacks; availability of alternatives (including deciding against it/treatment) and the risks and
benefits thereof. Voluntary – no coercion; person freely decides whether the risks are worth the
benefits, and expresses an opinion Choice is stable over a period of time.
We also need the ability to protect ourselves from coercion, exploitation, etc.
Guardians have a fiduciary responsibility with the protected person (confidence, good faith, reliance and trust) – this is not a personal relationship.
Guardians use “person-centered” principles to tailor to the individual. Protect while advancing their dignity, respect, and independence. Allow person to explore, learn, grow, and experiment as all of us. seek guidance from the judge with extraordinary decisions. act at all times for the sole benefit and interest of the protected person
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Why would guardianship be necessary for adults? All adults are deemed under the law to have the right to make their own
decisions. Some individuals may have limited capacity to make or communicate
decisions - may need someone else to make certain decisions; some may be susceptible to fraud or undue influence.
If a person has not designated someone to make decisions for them, only a court can legally have their right to make their own decisions taken away. Cannot deprive of civil rights without Due Process (life, liberty, or property) 5th and 14th Amendments to U.S. Constitution, and Bill of Rights
Guardianship may be for mental health treatment, or full or limited as needed.
Treatment Guardians provide informed consent re: mental health treatment Probate Code guardians make decisions per the Court Order, arrange and
monitor placement and services courts will remove only those rights that the proposed protected person is
incapable of handling.
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Guardianship versus Conservatorship, etc.
Guardianship for the person is called a “Guardian”; Guardianship for the estate (property and assets) is called a
“Conservator”. “Guardian” for the person may also include routine
financial matters. Not necessarily the “Representative Payee” for SSA, or the “Fiduciary” for VA benefits.
For mental health treatment or medication is called a Mental Health Treatment Guardian.
May need all based on income, property and assets, and needs.
May be the same person.
Probate Code Guardian, or Mental Health Treatment Guardian, or both?
Treatment Guardians provide informed consent re: mental health treatment/medication
Probate Code guardians make decisions per the Court Order - arrange and monitor:
> placement/housing
> services
> Benefits and routine financial matters
> requires specific language in the Court Order re:
mental health treatment/medication
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Required for Guardianship of Adults under theNM Probate Code:
First consider alternatives to guardianship Least Restrictive Means, and as a last resort Presumption of capacity - need “clear and convincing” evidence of
functional impairment. Balancing of protection with self-determination and only as necessary
to promote and protect the well being of the person (and others); “functional assessment” – what the individual can and cannot do for
themselves, and what they require help with. Preference for limited level of guardianship (rather than full/plenary
guardianship) - encourage development of maximum independence “Incapacity” is a legal, not a medical determination. Relies heavily on
Qualified Health Care Professional, GAL, and Court VisitorNote: “Competency” has different meanings in different legal situations, how that is determined, etc. (e.g. mental health, criminal).
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Guardianship removes considerable rights - only consider after alternatives have proven ineffective or unavailable.
Alternatives while capable include: Advance Directives, e.g. Advance Health Care Directive:
o Describe what you want and what you don’t want (your wishes)o Designate an agent to make decisions for you (in writing or verbally to your
physician)o While the doctor may say the person isn't competent to make the decisions re:
health care, the person may be competent to designate someone to make the medical decisions for them.
o End of life decisions (DNR, DNI)o not required to be notarized (although please note that a power of attorney must be
notarized).o Witnesses signing the document, although not required, may give it more validity
particularly in another state. Witnesses should not be family members nor the designated agent.
Representative Payee for Social Security benefits (Fiduciary for VA benefits) informal arrangements with family members
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Alternative if no one is designated, or if the agent is not available – for health care decisions only:
Surrogate Decision-maker: if none designated, or if the agent is not available – then the following in descending order:
• spouse, unless pending petition for divorce, etc.• an individual in a long-term relationship of indefinite duration
similar to the commitment of a spouse, and the individual and the patient consider themselves to be responsible for each other's well-being;
• Adult child, parent, adult brother/sister, grandparent;• an adult who has exhibited special care and concern for the
patient, who is familiar with the patient's personal values.Majority of the members of that class, or if the class is evenly divided, then the class and all with lower priority are disqualified.
Note: does not apply to mental health treatment/medication.
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Guardianship – when can the Court/government intervene (involuntary; similar to police powers)
“Clear and Convincing” standard of proof - that client is not capable of making or communicating own decisions.
mental health or . . . or physician . . . or any other interested person believes that the client is incapable of informed consent - for Treatment Guardian, relies heavily on the doctor.
“functional assessment” for Probate Code guardianships re: “incapacitated person” – “unable to manage his personal affairs” or unable to manage estate/financial affairs, or both - “inability, as evidenced by recent behavior, to meet one's needs for medical care, nutrition, clothing, shelter, hygiene or safety so that physical injury, illness or disease has occurred or is likely to occur in the near future;” What the individual can and cannot do for themselves, and what they require help with.
Rely heavily on Qualified Health Care Professional, guardian ad litem (GAL), and Court Visitor for Probate Code guardianships
priority for an agent designated or nominated previously by the client when had capacity, if no guardian already appointed.
Balance protection of health & safety with their civil rights (self determination)
Also, re: Commitment (and for detaining and transporting a person for emergency mental health evaluation and care) –only if: more likely than not that in the near future “likelihood of serious harm to oneself (includes “grave passive neglect”)or others”; “that immediate detention is necessary to prevent such harm” (Ref: Chapter 43 Commitment Procedures,Article 1);
Note: “Competency” has different meanings in different legal situations, how that is determined, etc. (e.g. mental health,criminal).
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“Best Interests” of the client(when you don’t know what the person would decide) relief of suffering; restoration of functioning - normalization; possible risks and consequences ; quality of life – least restrictive alternatives; opportunity for future satisfaction; possibility of future regaining of self-determination and
their own Informed Consent.
What a reasonable prudent person would do Presumption in favor of medical treatment Versus their “wishes” and “desires” or preferences
“Substituted Judgment” – what they would decide for themselves Should not over-ride what person wants
Treatment Guardian Probate Code Guardian
• Petition by the mental health or developmental disabilities professional or physician , or any other interested person • Client represented by counsel
• An “interested person” may petition • The Court appoints a guardian ad litem (GAL) to represent the client - a Court Visitor, and a - a Qualified Health Care Professional
For Office of Guardianship cases only:• OG is the Petitioner and pays for the Petitioning Attorney• OG pays for the GAL (attorney for client) - contractor• OG pays for the Court Visitor (contractor)
Hearing held within 3 court days Temporary guardian may be appointed pending a full hearing
TG makes decision on behalf of the client whether to accept treatment – mental health only. TG May seek Enforcement Order.
Guardian makes decisions under the authority given in the Court Order – plenary/full or limited/specified.
Maximum of 1 year; renewable Temporary or permanent
Reasons for Treatment Guardian
only appointed because client is incapable of giving informed consent (making a treatment decision based on understanding risks, benefits and alternatives to proposed treatment).
can’t be used as a tool for compliance if patient can make treatment decision, but is non-compliant.
can’t be presumed not to have capacity solely based on commitment for mental health treatment (or awaiting commitment) §43-1-15A
does not require commitment to be appointed a Treatment Guardian (outpatient and inpatient).
Agent(s) previously designated by client, if any, are not available or are not known – note Advance Directives for Mental Health treatment (24-7B) are a different form versus Advance Health Care Directives (24-7A).
other Surrogate decision-makers may not include mental health treatment decisions (§24-7A-1 NM Health-Care Decisions Act - family or someone who knows patient’s personal values).
clear and convincing evidence that client is not capable of making own treatment decisions.
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Emergency meds - meds without the person’s consent or without the consent of a Treatment Guardian (may be pending appointment).
“If a licensed physician believes that the administration of psychotropic medication is necessary to protect the client from serious harm that would occur while the provisions of subsection B of this section (petitioning court for appointment of TG) are being satisfied, the licensed physician may administer the medication on an emergency basis…treating physician shall prepare and place in the client’s medical records a report explaining the nature of the emergency and the reason that no treatment less drastic than administration of psychotropic medication without proper consent would have protected the client from serious harm.”
“Upon the sworn application of the treating physician, the court may issue an order permitting the treating physician to continue to administer psychotropic medication until a treatment guardian is Appointed,“ if the appointment of a treatment guardian is in process.
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Mental Health Treatment Guardians
This is separate from a guardian appointed under the Probate Code - often permanent, and may be given authority comparable to a Mental Health Treatment Guardian if specified in the Court Order.
Mental Health Treatment Guardians are appointed by a District Court under the Mental Health and Developmental Disabilities Code.
for those who are temporarily unable to make their own decisions about mental health services.
appointed to maximum of one year - the Court specifies the length of time; subject to renewal by the Court
a guardian under the Probate Code may also be appointed as a Mental Health Treatment Guardian
priority for an agent designated or nominated previously by the client when had capacity, if no guardian already appointed.
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Mental Health Treatment Guardians
Role is limited by our Mental Health Code to mental health care decisions (consent for psychiatric treatment/ medication) - does not extend to other physical health problems.
unless the Treatment Guardian has also been appointed a full or limited guardian under the Uniform Probate Code.
Treatment Guardian may decide re: authorizing disclosure of confidential information (mental health medical records) when client cannot provide informed consent re: disclosure (43-1-19E).
Enforcement Orders: for outpatient clients who refuse to comply with Treatment Guardian’s decision, the Treatment Guardian may seek an enforcement order from the court. Order may authorize a Peace officer to take person into custody and transport to an evaluation facility, and may authorize forcible administration of treatment.
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Who may be appointed as Treatment Guardian:
priority for an agent designated or nominated previously by the client when had capacity, if no guardian already appointed.
reach out to family, but they need to be vetted – sometimes they aren’t capable of making the treatment decisions for the client, can’t be reached, conflict with person, etc.
Trained Treatment Guardians from NAMI and FIC-DAC for Treatment Guardians of last resort when no one else is available.
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Petitioning the court for appointmentof a Treatment Guardian
Regarding mental health treatment or medication (psychotropic medication, psychosurgery, convulsive therapy, experimental treatmentor behavior modification program involving aversive stimuli or substantial Deprivations)
If the mental health or developmental disabilities professional or physician who is proposing this or any other course of treatment or any other interested person believes that the client is incapable of informed consent, he may petition the court for the appointment of a treatment guardian to make a substitute decision for the client.
o Served on client and client’s attorneyo hearing held within 3 court days of when served on client/attorneyo client shall be represented by counsel at hearing, right to be present,
present witnesses, and cross examine others (43-1-15C)o Court shall give priority to court-appointed guardian or agent
designated by client when client had capacity (43-1-15D)o clear and convincing evidence that client isn’t capable of making own
treatment decisions, for court to order TG (43-1-15E) 22
Decisions by the Treatment Guardian,and Enforcement Orders
The treatment guardian shall make a decision on behalf of the client whether to accept treatment, based on the client's best interest and least drastic means for accomplishing the treatment objective.
consult with the client and consider client’s expressed opinions, and consider client’s previous decisions when had capacity.
consult with the physician or other professional proposing treatment. Consult with client’s attorney, interested friends, relatives, or other agents or
guardians as reasonably practicable. treatment guardians have authority to access health records - is the client's
personal representative under the federal Health Insurance Portability and Accountability Act.
decide re: authorizing disclosure of confidential information (mental health medical records) when client cannot provide informed consent re: disclosure (Ref: 43-1-19E).
Enforcement: For outpatient clients who refuse to comply with the Treatment Guardian’s decision, the Treatment Guardian may seek enforcement order from court. Order may authorize a Peace officer to take person into custody and transport to an evaluation facility, and may authorize forcible administration of treatment.
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Role of the guardian – generally(Decision-maker - does not actually have “custody”) Advance Directive, power of attorney, other guides? make decisions (consent or withhold consent) re: medical or other professional care,
other services, placement, etc. - ultimately responsible/accountable to the Court. based on known values of the incapacitated person – involve the protected person,
family, friends, and seek insight from all available sources “best interests” – if reasonably certain substantial harm will result by following the
protected person’s wishes; focus on the incapacitated person. same as the protected person - entitled to information and same freedom of choice cannot consent to “voluntary commitment” re: mental health treatment may decide re: authorizing disclosure of confidential information (medical records) Protect while advancing their dignity, respect, and self-determination - well-reasoned
and principled decisions; be able to explain to a normal person (and to the Court) fiduciary relationship; act in equity and in good conscience; special trust and
confidence - view the decision from the protected person’s standpoint No conflict of interest - duty to act primarily for the benefit of the protected person seek direction from the Court, and report significant matters and Annual Report. Guardians bear liability for their own negligent acts. 24
Voluntary Admission to Residential Treatmentor Habilitation.
B. A guardian appointed under the Uniform Probate Code, an agent or surrogate under the Uniform Health-Care Decisions Act or an agent under the Mental Health Care Treatment Decisions Act shall not consent to the admission of an individual to a mental health care facility. If a guardian has full power or limited power that includes medical or mental health treatment or, if the individual's written advance health-care directive or advance directive for mental health treatment expressly permits treatment in a mental health care facility, the guardian, agent or surrogate may present the person to a facility only for evaluation for admission pursuant to Subsection E of Section 43-1-10 NMSA 1978.
Ref: 43-1-14
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Not liable as a Treatment Guardian
“A person carrying out the duties of a treatment guardian as provided in this section shall not be liable in any civil or criminal action so long as the treatment guardian is not acting in bad faith or with malicious purpose.” Ref: §43-1-15L
is not liable for acts of the incapacitated person solely by reason of the guardianship.
not liable within authority in Court Order use reasonable care and caution, taking reasonable steps, like a
prudent person would, and in good faith caution not to perform outside Court Order Appointee of the Court Good Samaritan laws protect individuals that assist a victim during a
medical emergency, and medical personnel following normal procedures
may be liable for own negligence
Appealing decisions and Termination
Appeal of decisions by Treatment Guardians – client, physician or other professional may appeal treatment decision of Treatment Guardians within 3 days. Client shall be represented by counsel. Court may overrule Treatment Guardian’s decision if against best interest of client.
Termination of treatment guardianship – “If during a period of a treatment guardian’s power, the treatment guardian, the client, the treatment provider, a member of the client’s family or the client’s attorney or another person believes that the client has regained competence to make the client’s own treatment decisions, that person shall petition the court for a termination of the treatment guardianship.” (43-1-15K)
Note: this is a mandate – “shall” because client should only have Treatment Guardian when can’t make own treatment decisions.
After Treatment Guardian is appointed, client may be compliant with psych meds, and may regain competence to make treatment decisions.
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Reappointment/new appointment – still required?
Reappointments: when appointment ends, the Treatment Guardian may petition the court for reappointment if client still incapable of making own treatment decisions (43-1-15J). Practically speaking, the provider, facility, or D.A. petitions for reappointment.
- the Court must hold another hearing. - if client is incapable of understanding and expressing opinion re: treatment decisions, then the court orders reappointment.
Note: Treatment Guardians are decision-makers and try to arrange for services – their success depends on the availability of services state-wide (assisted outpatient treatment, crisis triage centers, and inpatient public beds, etc.).
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Concerns re: the guardian
Complaints, grievances against a guardian (paid or family): First try to resolve directly Generally, you can report it to the Judge/Court who appointed the guardian,
and/or to Adult Protective Services If they work for someone else - report it to their boss If they are a contractor with the Office of Guardianship – written complaint
to our office If paid through NAMI or FICDAC, start with them If they are Certified by the National Center for Guardianship Certification,
file a complaint with them (Ph: 717-238-4689; [email protected]
website: http://www.guardianshipcert.org/make_a_complaint.cfm)
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For additional information,please see:
Handbook for Psychiatric Treatment Guardians in NM (2007)produced by NAMI-NM “New Mexico's Voice on Mental Illness” with a grant from the DD Planning Council, Office of Guardianship
Training Manual for Psychiatric Treatment Guardians in NM, produced by NAMI-NM “New Mexico’s Voice on Mental Illness”
Chapter 43 NMSA 1978 - Commitment Procedures The entire Mental Health Code is relevant. Article 1 - Mental Health and Developmental Disabilities § 43-1-14. Voluntary admission to residential treatment or habilitation. §43-1-15. Consent to treatment; adult clients (Treatment Guardian) NMSA 1978
Guardianship website: http://www.nmddpc.com
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Question & Answer
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Guardianship removes considerable rights - only consider after alternatives have proven ineffective or unavailable.
Alternatives while capable include: Advance Directives, e.g. Advance Health Care Directive:
o Describe what you want and what you don’t want (your wishes)o Designate an agent to make decisions for you (in writing or verbally to your
physician)o While the doctor may say the person isn't competent to make the decisions re:
health care, the person may be competent to designate someone to make the medical decisions for them.
o End of life decisions (DNR, DNI)o not required to be notarized (although please note that a power of attorney must be
notarized).o Witnesses signing the document, although not required, may give it more validity
particularly in another state. Witnesses should not be family members nor the designated agent.
Representative Payee for Social Security benefits (Fiduciary for VA benefits) informal arrangements with family members
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Alternative if no one is designated, or if the agent is not available – for health care decisions only:
Surrogate Decision-maker: if none designated, or if the agent is not available – then the following in descending order:
• spouse, unless pending petition for divorce, etc.• an individual in a long-term relationship of indefinite duration
similar to the commitment of a spouse, and the individual and the patient consider themselves to be responsible for each other's well-being;
• Adult child, parent, adult brother/sister, grandparent;• an adult who has exhibited special care and concern for the
patient, who is familiar with the patient's personal values.Majority of the members of that class, or if the class is evenly divided, then the class and all with lower priority are disqualified.
Note: does not apply to mental health treatment/medication.
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Continued - Alternatives while capable:
Power of Attorney Must understand what they are signing “Durable” means it’s still good once person is incapacitated. “Springing”
means only good once person is incapacitated. can be broad or specific must be notarized, and best if prepared by an attorney working for the
person. Witnesses signing the POA may strengthen its validity, but is not
required by state law in New Mexico. the person you designate to make your medical decisions, should not be
the same person you designate to make your financial decisions. a power of attorney, and Advance Directives, are no longer effective
after the death of either the principal person or of the agent. A Will is not effective until the death of the person. If no Will, property
and assets will be distributed under Probate (state law).
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Bank Account Signatory - often referred to as “Co-signer”
a trusted person such as a family member is registered with banks and other Financial Institutions as “Signatory”.
check writing authority for the benefit of the principal person only. is convenient if the owner of the bank account is ill. no ownership interest in the account is passed to the Signatory legal recourse by the principal person if Signatory exploits the
account. Revocation does not require mutual agreement by the Signatory.
A durable power of attorney and a beneficiary designation is another option related to bank accounts and other assets.
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Co-owner versus Power of Attorney A co-owner becomes an equal owner and will own the entire amount upon
the death of the principal person. A co-ownership may change the intent of a Will. with co-ownership, creditors and lawsuits may be able to use that to pay off
debts or damages of the other person. The other person’s spouse may also claim this money or assets as part of
community property. With a power of attorney, the other person does not own the bank account or
asset, and the other person’s creditors, lawsuits, and spouses would not gain access.
After your death the money or assets will be distributed as you directed in your beneficiary designation, and the person with a power of attorney only gets what you specify, if any.
Also keep in mind that a power of attorney is no longer effective after the death of either the principal person or of the agent. A Will is not effective until the death of the person.
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Co-ownership of Property - Joint Tenancy on Real Estate and other Assets. a tool used frequently between spouses more caution is often required when used between non-spouses. involves a change to the Title or Deed can result in unexpected liability to the principal person for actions
of the co-owner. Mutual agreement is required to rescind/revoke the co-ownership
and restore to sole ownership. For example, this requires a deed back to the original owner by the co-owner/joint tenant.
Bank Account Signatory is different from Co-ownership of a bank account or other assets – co-ownership comes with significant risks.
Co-ownership of any asset is often called joint tenancy and actually gives the other person ownership of the account as if it was their own.
This should be avoided unless that is truly the intention.
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Trusts: involves the transfer of property by the owner, known as the
Trustor or Grantor to another person or entity, known as the Trustee,
to be held in Trust, and either maintained or distributed by the Trustee in accordance with the directives of the Trust.
Trusts can be used to divert income, facilitating the Grantor to qualify for Institutional Medicaid.
Trusts are financial instruments that should be drafted by qualified professionals.
Trusts can be designed to either dissolve or continue after death of the grantor.
Trusts can be revocable or irrevocable depending on the objectives of the grantor.
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Testamentary Guardianship - successor guardian
Parent or Spouse of incapacitated person: May appoint a guardian by Will or other
writing - must first be a legally appointed guardian of the adult (protected person);
Notice of intention; The guardian files acceptance with court; May be terminated by filing objection
Ref: Uniform Probate Code 45-5-301
Emergency Temporary guardianship
where waiting for a full hearing would “cause immediate and irreparable harm to the alleged incapacitated person's physical health”
appoint a temporary guardian . . . in order to prevent serious and irreparable harm to the alleged incapacitated person.
shall not exceed sixty days, . . . may be extended for not more than thirty days. may be appointed without notice to the alleged incapacitated person and his attorney
only if it clearly appears from specific facts shown by affidavit or sworn testimony that immediate and irreparable harm will result to the alleged incapacitated person
. . . the alleged incapacitated person or his counsel may appear and move dissolution or modification of the court's order, and, in that event, the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.
Ref: §45-5-310
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Who may be appointed guardian – priorities:
priority for an agent designated or nominated previously by the client when had capacity.
Spouse, adult child, parent, person nominated by will/other writing by a deceased parent, relative with whom has resided for 6 months prior to petition, a person nominated by the person who is caring or paying benefits for the incapacitated person, or any other person.
The court selects the best qualified to serve as guardian, for the best interest of the incapacitated person, and for good cause shown.
Possible guardian needs to be vetted – sometimes they aren’t capable of making the decisions for the protected person, can’t be reached, conflict with person, etc.
Contract corporate professional guardian as a last resort when no one else is available.
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Notice of Hearing required
Required Notice of Hearing (and a copy of the petition and any interim orders that may have been
entered) to:
(1) the person alleged to be incapacitated;
(2) the person's spouse, parents and adult children, or if there are no adult children, at least one of the
person‘s closest adult relatives if any can be found;
(3) the proposed guardian; and
(4) a person, as far as known or as can reasonably be ascertained, previously nominated or designated in a
writing signed by the incapacitated person prior to incapacity that has not been revoked by the
incapacitated person or terminated by a court. This includes but is not limited to writings executed
under the Uniform Health-Care Decisions Act, the Mental Health Care Treatment Decisions Act, the
Uniform Power of Attorney Act, the Uniform Probate Code and the Uniform Trust Code.
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Annual Report by the guardian initial report to the same court within 90 days of the guardian's appointment. thereafter, an annual report within 30 days of the anniversary date of the guardian's
appointment. copy of the report submitted to:
• the district judge who appointed the guardian• the incapacitated person, and to• the incapacitated person's conservator, if any.
include the case # from your Letters of Guardianship in Cause No. __________ report on the condition and well-being of the protected person and anything significant
over the past year accounting for financial matters if you have such responsibility/authority have the Clerk of the Court date stamp each copy, then provide a copy to the Judge’s
office, the incapacitated person, and the incapacitated person's conservator. report should be easy to complete – just complete a form (see handout).
Ref: §45-5-31443
Substitution, review and termination of guardianship
• 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.
• A request for this order may be made by informal letter to the court or judge.
• Any person who knowingly interferes with transmission of this kind of request to the court may be adjudged guilty of contempt of court.
Ref: §45-5-307. C.
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Lessening or removing the guardianship
• Following receipt of a request for review, the court shall hold
a status hearing, which may be informal, to determine the
appropriate order to be entered. • If the court finds the incapacitated person is capable of more autonomy than
at the time of the original order, the court may enter an order removing the guardian, terminating the guardianship or reducing the powers previously granted to the guardian.
• The 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.
Ref: §45-5-307. F.
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Protections in the Probate Code
definition of:o “incapacitated person”o "least restrictive form of intervention“o "inability to manage his personal care"
Qualified Health Care Professional - a physician, psychologist, physician assistant, nurse practitioner or other health care practitioner whose training and expertise aid in the assessment of functional impairment.
Guardian ad Litem (GAL) - appointed by the court to represent and protect the interests of the alleged incapacitated person in connection with the court proceeding.
Court Visitor - appointee of the court who has no personal interest in the proceeding with expertise to evaluate the needs of the alleged incapacitated person – e.g. a psychologist, a social worker, a developmental incapacity professional, a physical and occupational therapist, an educator and a rehabilitation worker.
Annual Report by the guardian to the Court Notice requirements to closest family members and previously designated
agents
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Guardian ad Litem (GAL)
Guardian ad Litem (GAL) is appointed by the Court to:1. interview in person the alleged incapacitated person prior to the
hearing;2. Present the alleged incapacitated person’s declared position to the
court;3. Interview the qualified health care professional, the visitor and the
proposed guardian;4. Review both the medical report submitted by the qualified health
care professional and the report by the visitor; and 5. Obtain independent medical or psychological assessments, or both, if
necessary.
The duties of the GAL terminate upon appointment of the guardian.
Ref: 45-5-303.1 ; also see Collins v. Tabet 806 P.2d 40 (1991), 111 N.M. 391
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“Best Interests” of the client(when you don’t know what the person would decide) relief of suffering; restoration of functioning - normalization; possible risks and consequences; quality of life – least restrictive alternatives; opportunity for future satisfaction; possibility of future regaining of self-determination and
their own Informed Consent.
What a reasonable prudent person would do Presumption in favor of treatment (e.g. medical) Versus their “wishes” and “desires” or preferences
“Substituted Judgment” – what they would decide for themselves Should not over-ride person’s ascertainable preferences, except
where reasonably certain that substantial harm will result from such a decision.
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“incapacitated person”
The main criteria in the Probate Code is that the person meet the definition of “incapacitated person”: any person who demonstrates over time either partial or complete
“functional impairment” by:- reason of mental illness, mental deficiency,- physical illness or disability,- chronic use of drugs, chronic intoxication or other cause,
to the extent that he is “unable to manage his personal affairs” or he is unable to manage estate or financial affairs or both
“Incapacity” is a legal, not a medical determination, based on “functional impairment”.
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"inability to manage his personal care" means the “inability, as evidenced by recent behavior, to meet one's needs for medical care, nutrition, clothing, shelter, hygiene or safety so that physical injury, illness or disease has occurred or is likely to occur in the near future;”
Ref: 45-5-101 (G)
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"least restrictive form of intervention"
means that the guardianship or conservatorship imposed on the incapacitated person represents only those limitations necessary to provide the
needed care and rehabilitative services, and that the incapacitated person shall enjoy the greatest amount
of personal freedom and civil liberties;
Ref: 45-5-101 (J)
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Qualified Health Care Professional’s Report
The report shall: “describe the nature and degree of the alleged
incapacitated person's incapacity, if any, and the level of the respondent's intellectual, developmental and social functioning; and”
“contain observations, with supporting data, regarding the alleged incapacitated person's ability to make health care decisions and manage the activities of daily living.”
Ref: 45-5-303 (D)
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Court Visitor
Appointed by the Court to evaluate the needs of the person alleged to be incapacitated and report to the court: personal care that the individual can manage without
supervision or assistance; personal care that the individual could manage with the
supervision or assistance of support services and benefits; personal care that the individual is unable to manage
without the supervision of a guardian.
NM Uniform Adult Guardianship & Protective Proceedings Jurisdiction Act (UAGPPJA).
Most provisions effective Jan. 1, 2012 30 States (jurisdictions) have adopted this as of Sept. 2012 includes guardianship and conservatorships, property interests, wills, trusts
and other probate issues. this Act (Senate Bill 146) passed by Legislature in recent 2011 session clarifies jurisdiction and provides a procedural roadmap for addressing
multi-state dilemmas. which court has jurisdiction to appoint a guardian or conservator - primary jurisdiction is the “home state” - state the adult has lived at least 6 consecutive months.
- next is the “significant-connection state”
- once a court has jurisdiction, this continues until the proceeding is terminated or transferred.
transfer of guardianship and conservatorship to other states, and acceptance of guardianships and conservatorships from other states, and
registration of orders from other jurisdictions.
Ref: Article 5A (45-5A-101 thru 502)54
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For additional information, please see:
Video and Handbook for Guardians and Conservators - practical guide to NM law; at: http://www.nmgaresourcecenter.org
National Guardianship Association (NGA), Model of Ethics, and Standards of Practice; see at website: http://www.guardianship.org/; Click on: "Publications", then Click on "Model Code of Ethics for Guardians", and "Standards of Practice for Guardians"; Ph: 814-238-3126; E-mail: [email protected]
Office of Guardianship website: http://www.nmddpc.com
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Question & Answer
