Standby Guardianship - New Mexico

Date: June 2018

Who Can Nominate a Standby Guardian

Citation: Ann. Stat. §§ 45-5-201; 45-5-204; 45-5-206

A person becomes a guardian of a minor by parental appointment or upon appointment by the court. The guardianship status continues until terminated, without regard to the location from time to time of the guardian or minor protected person.

The court may appoint a guardian for an unmarried minor if all parental rights of custody have been terminated or suspended by circumstances or prior court order.

The court may appoint as guardian any person whose appointment would be in the best interests of the minor. The court shall appoint a person nominated by the minor, if the minor is age 14 or older, unless the court finds the appointment contrary to the best interests of the minor.

How to Establish a Standby Guardian

Citation: Ann. Stat. §§ 45-5-202; 45-5-203; 45-5-204

The parent of an unmarried minor may appoint a guardian for the minor by will or other writing that is signed by the parent and attested by at least two witnesses.

Subject to the right of the minor to object under § 45-5-203, if both parents are dead or incapacitated or the surviving parent has no parental rights or has been adjudged to be incapacitated, a parental appointment becomes effective when the guardian€„¢s acceptance is filed in the court in which a nominating instrument is probated, or, in the case of a nontestamentary nominating instrument, in the court at the place where the minor resides or is present. If both parents are dead, an effective appointment by the parent who died later has priority.

A minor age 14 or older who is the subject of a parental appointment of a guardian may prevent the appointment or may cause it to terminate by filing in the court in which the will is probated or, in the case of a nontestamentary instrument, in the court where the minor resides or is present, a written objection to the appointment before it is accepted or after its acceptance. An objection does not prevent appointment by the court of the parental nominee or any other suitable person.

A guardian whose appointment has not been prevented or terminated under § 45-5-203 has priority over any guardian who may be appointed by the court, but the court may proceed with another appointment upon a finding that the parental nominee has failed to accept the appointment within 30 days after notice of the guardianship proceeding.

How Standby Authority is Activated

Citation: Ann. Stat. §§ 45-5-202; 45-5-207; 45-5-208

Upon acceptance of appointment, the guardian shall give written notice of acceptance to the minor and to the person having the minor's care or the minor's nearest adult relative. If the minor is age 14 or older, the notice shall state that the appointment may be terminated by filing a written objection in the court, as provided in § 45-5-203.

Notice of the time and place of hearing of a petition for the appointment of a guardian of a minor is to be given by the petitioner to the following:

  • The minor, if he or she is age 14 or older
  • The person who has had the principal care and custody of the minor during the 60 days preceding the date of the petition
  • Any living parent of the minor

Upon hearing, if the court finds that a qualified person seeks appointment, venue is proper, the required notices have been given, the requirements of § 45-5-204 have been met, and the best interests of the minor will be served by the requested appointment, it shall make the appointment. In other cases, the court may dismiss the proceedings or make any other disposition of the matter that will serve the best interests of the minor.

By accepting a parental or court appointment as guardian, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person. Letters of guardianship shall indicate whether the guardian was appointed by parental appointment or by court order.

Involvement of the Noncustodial Parent

This issue is not addressed in the statutes reviewed.

Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

Citation: Ann. Stat. §§ 45-5-210; 45-5-212

A guardian's authority and responsibility terminate upon the death, resignation, or removal of the guardian or upon the minor's death, adoption, emancipation, marriage, or attainment of majority. Resignation of a guardian does not terminate the guardianship until it has been approved by the court.

Any person interested in the welfare of a protected person or the protected person who is age 14 or older may petition for removal of a guardian on the grounds that removal would be in the best interests of the protected person. A guardian may petition for permission to resign. A petition for removal or for permission to resign may, but need not, include a request for appointment of a successor guardian.

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