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Unlike run-of-the-mill Guardianships and Conservatorships, Emergency Guardianship proceedings are conducted when there exists a substantial risk of immediate harm to either the incapacitated person or to his/her estate. In such cases, the Court will appoint an Emergency Temporary Guardian or an Emergency Temporary Conservator (or both). The request for an Emergency Guardianship must be supported by a sworn statement and/or other evidence that clearly sets forth the circumstances giving rise to the need for the emergency temporary appointment.
What Are the Requirements for an Emergency Guardianship?
- Incapacity. New Mexico guardianship law defines an incapacitated person as one “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, except minority, to the extent that he or she is unable to manage personal affairs or is unable to manage estate or financial affairs or both.”
- Risk of Harm. For an emergency temporary guardian (or emergency temporary conservator) to be appointed for the incapacitated person, the standard is a substantial risk of immediate and irreparable harm to that person and/or his/her estate.
- No alternatives. Given the circumstances of the particular case, there are no other alternatives available to protect the incapacitated person. Such alternatives would include legal documents such as a Power of Attorney or Advanced Healthcare Directives.
Duties of an Emergency Temporary Guardian or Conservator:
- A court-appointed Temporary Guardian is entrusted with making healthcare decisions for the incapacitated person until such time as the court can have the hearing. A court-appointed Temporary Conservator is entrusted with making financial decisions for the incapacitated person on a temporary basis. A Temporary Conservator is not authorized to liquidate the property of the person prior to the court hearing.
- Under a new law (to take effect in July of 2022), the court must conduct a hearing within 10 days of any temporary appointment. Additionally, an initial report must be filed within 15 days.
Emergency Guardianships Are Temporary
It is important to remember that emergency guardianships and conservatorships are temporary. In cases in which an emergency guardianship is necessary, the court must always be guided by the best interests of the incapacitated person and must seek to maximize their freedom and independence to the extent possible.