New Mexico Guardianship Laws: Minors, Adults and Conservators (2026)

In New Mexico, guardianship is a court proceeding under Article 5 of the Uniform Probate Code (NMSA 1978, Chapter 45) in which a judge appoints a guardian for a minor or an incapacitated person, a conservator for a person's estate and financial affairs, or both. For an adult, the petitioner must prove the allegations by clear and convincing evidence against a legal presumption of capacity, and the court may appoint a full or limited guardian only after finding, among other things, that no suitable alternative resources are available and that guardianship is the least restrictive form of intervention (NMSA §§ 45-5-303(I), 45-5-304(C)).

New Mexico's statute is built on the 1975 Uniform Probate Code, reworked by later amendments, including Laws 2018, chapter 10. It is not the 2017 Uniform Guardianship, Conservatorship and Other Protective Arrangements Act: that 2018 law directed the courts' administrative office to report on the status of that uniform act and the feasibility of implementing it in New Mexico (Laws 2018, ch. 10, § 15). Children can also come under a separate Kinship Guardianship Act in Chapter 40. For how other states handle these questions, see our guardianship laws by state overview.

Information last verified on October 20, 2026. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers New Mexico state law on guardianship of minors and adults and on conservatorship in Article 5 of the Uniform Probate Code (NMSA Chapter 45), the Kinship Guardianship Act and caregiver's authorization affidavit (NMSA Chapter 40, Article 10B), the Supported Decision-Making Act (NMSA Chapter 24, Article 7D) and the health-care surrogate rules of the Uniform Health-Care Decisions Act. It does not cover custody disputes between parents (see New Mexico child custody laws), grandparent visitation (see New Mexico grandparents' rights), adoption, emancipation, what happens to a person's estate after death (see New Mexico probate), child-protection cases in children's court, which are a separate track, or civil commitment and mental-health holds.

New Mexico guardianship terms and where the law lives

Article 5 of Chapter 45 is organized in four parts: general provisions (§§ 45-5-101 to 45-5-111), guardians of minors (§§ 45-5-201 to 45-5-212), guardians of incapacitated persons (§§ 45-5-301 to 45-5-315), and conservators and protective proceedings (§§ 45-5-401 to 45-5-436). Article 5A, the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, governs moving a guardianship between states (§ 45-5A-101).

The statute builds adult guardianship on this definition:

"incapacitated person" means 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, except minority, to the extent that the person is unable to manage the person's personal affairs or the person is unable to manage the person's estate or financial affairs or both;

NMSA § 45-5-101(F)

Inability to manage 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" (§ 45-5-101(G)).

The other key term is the "least restrictive form of intervention," which means the guardianship or conservatorship "represents only those limitations necessary to provide the needed care and rehabilitative services" and that the person "shall enjoy the greatest amount of personal freedom and civil liberties" (§ 45-5-101(J)).

How to get guardianship of a child in New Mexico

New Mexico has two court routes for a relative or other adult who is raising a child: a guardianship of a minor under the Probate Code, and a kinship guardianship under Chapter 40. They have different thresholds.

Probate Code guardianship of a minor

The appointment condition is narrow:

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.

NMSA § 45-5-204(A)

When that condition is met, "the court may appoint as guardian any person whose appointment would be in the best interests of the minor," and the court must appoint a person the minor nominates if the minor is 14 or older, unless the court finds that appointment contrary to the minor's best interests (§ 45-5-206).

Notice. The petitioner must give notice of the time and place of the hearing to the minor, if 14 or older; to the person who had the principal care and custody of the minor during the 60 days before the petition; and to any living parent of the minor (§ 45-5-207(A)).

A lawyer for the child. If at any time the court finds the minor is or may be inadequately represented, it may appoint an attorney for the minor, considering the preference of a minor 14 or older (§ 45-5-207(D)). Appointment is up to the court; the statute does not require it in every case.

Temporary guardian. If necessary, and on petition or application, the court may appoint a temporary guardian of a minor with the full authority of a general guardian, for no longer than six months, and it may do so even though the condition in § 45-5-204(A) has not been established (§ 45-5-204(C)).

What the guardian may decide. A guardian of a minor "has the powers and responsibilities of a parent regarding the protected person's support, care and education," but is not personally liable for the child's expenses (§ 45-5-209(A)). Among other powers, the guardian may consent to medical or other professional care, treatment or advice, and may consent to the minor's marriage or adoption (§ 45-5-209(C)(4), (5)).

When it ends. The guardian's authority ends on the guardian's death, resignation or removal, or on the minor's death, adoption, emancipation, marriage or attainment of majority (§ 45-5-210). Any person interested in the child's welfare, or the child if 14 or older, may petition to remove the guardian on the ground that removal is in the child's best interest, and after notice and a hearing the court may terminate the guardianship (§ 45-5-212(A), (C)).

Kinship guardianship under Chapter 40

The Kinship Guardianship Act is a separate court route with its own conditions. Only certain caregivers may file: a kinship caregiver; an unrelated caregiver at least 21 years old whom a child 14 or older has nominated; a caregiver a parent designated in a writing that shows the parent understands the guardianship and the right to be served and to contest it; or a caregiver with whom the children, youth and families department placed the child (NMSA § 40-10B-5(A)).

The hearing is set 30 to 90 days after filing, and the petition is served on the parents, the child if 14 or older, anyone with court-ordered custody or visitation, the department if a Children's Code matter is pending, and, for an Indian child, the tribe and any Indian custodian (§ 40-10B-6). The court may appoint a temporary guardian for not more than 180 days or until the case is decided on the merits, whichever comes first (§ 40-10B-7(A)), and it must appoint a guardian ad litem if a participating parent objects to the requested appointment (§ 40-10B-9(A)).

A guardian may be appointed under the Act only if one of these applies:

• a living parent has consented in writing to the appointment and has not withdrawn the consent;
• a living parent's parental rights have all been terminated or suspended by prior court order; or
• the child has lived with the petitioner without the parent for 90 days or more immediately before the petition is filed, and a parent with legal custody is currently unwilling or unable to provide adequate care, maintenance and supervision, or there are extraordinary circumstances;

and, in every case, no guardian of the child is currently appointed under the Uniform Probate Code (NMSA § 40-10B-8(B)). "The burden of proof shall be by clear and convincing evidence" (§ 40-10B-8(C)).

A kinship guardian "has the legal rights and duties of a parent except the right to consent to adoption of the child and except for parental rights and duties that the court orders retained by a parent" (§ 40-10B-13(A)). The court may order a parent to pay the reasonable costs of support the parent is financially able to pay and may order parent-child visitation if it is in the child's best interests (§ 40-10B-8(D), (E)); unless the court orders otherwise, the guardian decides visitation (§ 40-10B-13(B)). The court appoints a person nominated by a child 14 or older unless it finds the nomination contrary to the child's best interests, and it will not appoint a person the child objects to in writing before acceptance unless it specifically finds the appointment in the child's best interest (§ 40-10B-11). Any person, including a child 14 or older, may move to revoke the guardianship with a proposed transition plan; the court grants revocation if a preponderance of the evidence proves a change in circumstances and revocation is in the child's best interests (§ 40-10B-12). Disputes between parents over custody are a different proceeding, covered on our New Mexico child custody laws page, and grandparent visitation is covered on our New Mexico grandparents' rights page.

A child's money without a conservator

A person who owes money or personal property to a minor may pay or deliver it, "in amounts not exceeding ten thousand dollars ($10,000) per year," to a person who has care and custody of the minor and with whom the minor lives, to a guardian of the minor, to a financial institution for deposit in a federally insured savings account in the minor's sole name (with notice to the minor), or to a custodian under the Uniform Transfers to Minors Act (NMSA § 45-5-103(A)).

Can a parent name a guardian in a will in New Mexico?

Yes. "The parent of an unmarried minor may appoint a guardian for the minor by will, or other writing signed by the parent and attested by at least two witnesses" (NMSA § 45-5-202(A)).

The appointment does not take effect while a parent with parental rights is able to act. Subject to the child's right to object, it becomes effective only if both parents are dead or incapacitated, or the surviving parent has no parental rights or has been adjudged incapacitated, and then only when the guardian's acceptance is filed: in the court where the will is probated, or, for a nominating writing other than a will, in the court at the place where the minor lives or is present (§ 45-5-202(B)).

Two further rules apply:

• Priority. A parental nominee whose appointment has not been prevented or terminated has priority over any guardian the court might appoint, but the court may proceed with another appointment if it finds the nominee failed to accept within 30 days after notice of the guardianship proceeding (§ 45-5-204(B)).
• The child's objection. A minor 14 or older who is the subject of a parental appointment may prevent it, or cause it to end, by filing a written objection before or after acceptance. The objection does not stop the court, in a proper proceeding, from appointing the parental nominee or any other suitable person (§ 45-5-203).

A similar rule covers an adult. The parent of an unmarried incapacitated person, or the spouse of a married incapacitated person, may appoint a guardian by will or other writing attested by at least two witnesses. The appointment takes effect when the guardian, after giving seven days' prior written notice to the incapacitated person and to the person's caregiver or nearest adult relative, files an acceptance in the proper court (for a parent's appointment, only once both parents are dead or incapacitated or the surviving parent has no parental rights or has been adjudged incapacitated). A spouse's appointment has priority over a parent's, and the incapacitated person's written objection terminates it, though the court may still appoint the nominee or another suitable person after an adjudication of incapacity (NMSA § 45-5-301).

The general rules for making a valid will are a separate subject; see our New Mexico wills and trusts page.

Letting a relative care for a child without going to court

New Mexico law offers two documents that let a parent arrange care without a guardianship. Neither one transfers custody.

Delegation by power of attorney. Under NMSA § 45-5-104:

A parent or a guardian of a minor or an incapacitated person, by an acknowledged power of attorney, may delegate to another person, for a period not exceeding six months, any of the parent's or guardian's powers regarding care, custody or property of the minor child or protected person, except the power to consent to marriage or adoption of a minor protected person.

The statute requires the power of attorney to be acknowledged and limits the delegation to six months. The same section lets a guardian of an incapacitated adult delegate powers on the same terms.

Caregiver's authorization affidavit. Section 40-10B-15 of the Kinship Guardianship Act provides for a caregiver's authorization affidavit. A caregiver who completes the statutory form and swears to it before a notary public may enroll the child in school, preschool or early intervention programs, consent to medical care including school-related care, immunizations, sports physicals, dental and mental health care, and act as the school contact; a caregiver who is a relative and completes the additional items has the same authority over medical, dental and mental health care as a kinship guardian (§ 40-10B-15(A), (B)). The statutory form states that it does not affect the parents' rights and does not mean the caregiver has legal custody (§ 40-10B-15(J)). Two limits in the statute matter most:

• "A caregiver's authorization affidavit executed pursuant to this section is not valid for more than one year after the date of its execution" (§ 40-10B-15(C)).
• A caregiver's decision under the affidavit to consent to or refuse medical, dental or mental health care "is superseded by a contravening decision of a parent or other person having legal custody of the child if the contravening decision does not jeopardize the life, health or safety of the child" (§ 40-10B-15(D)).

How to become guardian of an adult in New Mexico

New Mexico states its approach in a guiding principle: guardianship "shall be used only as is necessary to promote and to protect the well being of the person," shall be designed to encourage "maximum self reliance and independence," and "shall be ordered only to the extent necessitated by the person's actual functional mental and physical limitations" (NMSA § 45-5-301.1).

The petition

The petition must explain why a guardianship is necessary, including a brief description of the person's alleged need; any least restrictive alternative that has been considered or implemented; if none has been, the reason; and why a least restrictive alternative instead of guardianship is insufficient. It must say whether a limited or full guardianship is sought, and for a full guardianship, why a limited guardianship or a protective arrangement instead of guardianship is not appropriate (§ 45-5-303(B)(4) to (6)), along with the other contents § 45-5-303(B) requires.

Notice to the person

A copy of the petition and notice of the hearing "shall be served personally on the alleged incapacitated person." The notice must tell the person about the rights at the hearing and the right to attend, and must describe the nature, purpose and consequences of granting the petition. "The court shall not grant the petition if notice substantially complying with this subsection is not served on the alleged incapacitated person" (§ 45-5-309(B)). Section 45-5-309 does not itself state a number of days of advance notice.

A lawyer, a health care professional and a visitor

Three court appointments follow the petition:

• Counsel. "Unless an alleged incapacitated person already has an attorney of the alleged incapacitated person's own choice, the court shall appoint an attorney to represent the alleged incapacitated person." The court-appointed attorney has the duties of a guardian ad litem set out in § 45-5-303.1 (§ 45-5-303(D)).
• Examination. The person "shall be examined by a qualified health care professional appointed by the court who shall submit a report in writing to the court" (§ 45-5-303(E)).
• Visitor. The court must appoint a visitor, who interviews the person seeking appointment as guardian and the person alleged to be incapacitated (§ 45-5-303(F)).

The person cannot simply agree to the arrangement: "An alleged incapacitated person shall not be permitted by the court to consent to the appointment of a guardian" (§ 45-5-315).

The hearing, the jury and the burden of proof

The person must be present at the hearing unless the court determines by evidence that presence is not in the person's best interest because of a threat to the health or safety of the person or others. At the hearing the person may present evidence, subpoena witnesses and documents, and examine witnesses, including the guardian ad litem, the health care professional and the visitor (§ 45-5-303(G)).

On request of the petitioner or the alleged incapacitated person, "the court shall schedule a jury trial" (§ 45-5-303(O)).

"There is a legal presumption of capacity, and the burden of proof shall be on the petitioner to prove the allegations set forth in the petition. Such proof shall be established by clear and convincing evidence" (§ 45-5-303(I)).

The court may appoint a full guardian, as requested, or a limited guardian with specific powers (§ 45-5-304(C)), only after finding in the record, based on clear and convincing evidence, that:

(1) the person for whom a guardian is sought is totally incapacitated or is incapacitated only in specific areas as alleged in the petition; (2) the guardianship is necessary as a means of providing continuing care, supervision and rehabilitation of the incapacitated person; (3) there are no available alternative resources that are suitable with respect to the alleged incapacitated person's welfare, safety and rehabilitation; (4) the guardianship is appropriate as the least restrictive form of intervention consistent with the preservation of the civil rights and liberties of the alleged incapacitated person; and (5) the proposed guardian is both qualified and suitable, has reviewed the proposed order of appointment and is willing to serve.

NMSA § 45-5-304(C)

If the court determines the person can care for himself or herself, it must dismiss the petition (§ 45-5-304(B)). If it determines the person is able to manage some but not all aspects of personal care, it must appoint a limited guardian (§ 45-5-312(A)). The order must tell the person of the right to appeal and the right to seek alteration or termination of the guardianship at any time (§ 45-5-304(F)).

Who serves as guardian

Any person the court deems qualified may be appointed, except that no one who operates or is an employee of a boarding home, residential care home, nursing home, group home or similar facility where the person lives may serve, although an employee related by affinity or consanguinity may (§ 45-5-311(A)). Persons who are not disqualified have priority in this order (§ 45-5-311(B)):

1. a guardian or similar fiduciary appointed by a court of another jurisdiction;
2. a person the incapacitated person nominated or designated, before incapacity, in a signed writing that has not been revoked;
3. the spouse;
4. an adult child;
5. a parent;
6. any relative with whom the person has lived for more than six months before the petition was filed;
7. a person nominated by whoever is caring for the person or paying benefits to the person; and
8. any other person.

Acting in the person's best interest and for good cause, the court may pass over a person with priority, considering among other factors the person's preference, with weight to preferences written while the person had capacity (§ 45-5-311(C)). A professional guardian may serve only if certified and in good standing with a certifying organization the supreme court recognizes (§ 45-5-311(D)).

What a New Mexico guardian can decide, and the rights the person keeps

The guardian's authority is only what the court confers. A person under guardianship "retains all legal and civil rights except those which have been expressly limited by court order or have been specifically granted to the guardian by the court" (NMSA § 45-5-301.1).

Voting. "The voting rights of a protected person shall not be abridged or restricted except pursuant to Article 7, Section 1 of the constitution of New Mexico" (§ 45-5-109).

Contact with family and friends. A guardian may not restrict the person's ability to communicate, visit or interact with others, including visitors, phone calls, mail, electronic communications, social media and social activities, unless one of three conditions applies (§ 45-5-312(F)):

• the court has authorized it by specific order;
• a less restrictive alternative in effect limits contact between the person and someone; or
• the guardian has good cause to believe the restriction is necessary because interaction with a specified person poses a risk of significant physical, psychological or financial harm, and the restriction lasts not more than seven business days if that person has a family or preexisting social relationship with the person under guardianship, or not more than 60 days if not.

Powers of attorney and commitment. Unless the court authorizes it by specific order, a guardian for an adult may not revoke or amend a health-care or financial power of attorney the adult signed, and, unless a court orders otherwise, the agent's decisions within the agent's authority take precedence over the guardian's (§ 45-5-312(D)). A guardian may not initiate the adult's commitment to a mental health treatment facility except under the state's involuntary civil commitment procedure (§ 45-5-312(E)).

Moving toward less guardianship. A guardian "shall seek and support the least restrictive option, consistent with the court's guardianship order of appointment, including developing adequate supports and requesting guardianship termination if less restrictive alternatives to guardianship are appropriate" (§ 45-5-312(G)).

Reports to the court

• Initial report. The guardian of an incapacitated person must file an initial report within 90 days of appointment (§ 45-5-314(A)).
• Annual report. After that, the guardian files an annual report within 30 days of the anniversary of appointment (§ 45-5-314(A)). The court "shall not waive the requirement of an annual report under any circumstance," may extend the deadline by no more than 60 days, and may require more than one report a year (§ 45-5-314(D)).
• Late reports. A guardian may be fined $25 per day for an overdue interim or annual report (§ 45-5-314(C)).

Conservatorship: managing a person's property

A conservator manages a person's estate and financial affairs. For a person other than a minor, the court may appoint one if it finds "that the person has property that may be wasted or dissipated unless proper management is provided; that funds are needed for the support, care and welfare of the person or those entitled to be supported by him; that protection is necessary or desirable to obtain or provide funds," and that the person is incapacitated or is unable to manage the estate and financial affairs effectively for reasons such as confinement, detention by a foreign power or disappearance (NMSA § 45-5-401(B)).

As with guardianship, the court may appoint a full or a limited conservator only after making findings in the record based on clear and convincing evidence (§ 45-5-407(I)), and it must appoint a limited conservator if the person can manage some but not all aspects of the estate and financial affairs (§ 45-5-407(J)). Unless the person already has a lawyer of his or her own choice, the court must appoint one, and on request of the petitioner or the person the court must schedule a jury trial (§ 45-5-407(B), (R)).

Bond. The court "shall require a conservator to furnish a bond with a surety the court specifies, or require an alternative asset-protection arrangement." It may waive that requirement only if it finds a bond or other asset-protection arrangement is not necessary to protect the person's interests, and it "shall not waive the requirement if the conservator is in the business of serving as a conservator and is being paid for the conservator's service" (§ 45-5-411(A)). Both rules are subject to an exception: a financial institution exercising general trust powers in New Mexico is not required to give a bond (§ 45-5-411(C)).

Inventory. Within 90 days after appointment, every conservator must prepare and file with the appointing court a complete inventory of the protected person's estate (§ 45-5-418(A)).

Annual report and account. Every conservator must file an annual report and account within 30 days of the anniversary of appointment, and on resignation, removal or termination; the court may extend the time but may not waive the requirement, and an overdue report and account can draw a fine of $25 per day (§ 45-5-409(A), (C), (D)).

Protective arrangements instead of conservatorship

The court can sometimes act without appointing a conservator at all. If, after notice and a hearing, a basis exists under § 45-5-401 for affecting a person's estate and financial affairs, the court may issue an order for a protective arrangement instead of conservatorship. Unless the person already has an attorney of the person's own choice, the court must appoint one for the hearing (§ 45-5-405.1(A)).

The court may also restrict a specified person's access to the protected person or the protected person's property, but only if it finds by clear and convincing evidence that the specified person, through fraud, coercion, duress or deception and control, caused or attempted to cause an action that would have resulted in financial harm, and poses a serious risk of substantial financial harm (§ 45-5-405.1(C)).

Emergency (temporary) guardianship of an adult

While a guardianship petition is pending, the court "shall appoint a temporary guardian" if it finds that "serious, immediate and irreparable harm to the alleged incapacitated person's health, safety or welfare would result during the pendency of petition," and it must specify the temporary guardian's powers to prevent that harm (NMSA § 45-5-310(C)).

• Duration. The temporary guardianship "shall not exceed thirty days." After a hearing at which good cause is shown, the court may extend it "for no more than an additional sixty days" (§ 45-5-310(C)).
• Procedure. On a separate motion, the court must hold a hearing no later than ten business days after the motion is filed and appoint a guardian ad litem, who reports no later than two days before the hearing (§ 45-5-310(B)). The court may appoint without notice to the person and the person's attorney only on specific facts shown by affidavit or sworn testimony; the petitioner must then have both served personally within 24 hours, and the person, counsel or any interested person may move to dissolve or modify the order (§ 45-5-310(D)).
• Reports. A temporary guardian files an initial report within 15 days of appointment and a final report within 15 days after the temporary guardianship ends, or as the court otherwise orders (§ 45-5-310(E)).
• Limits. A temporary guardian is entitled to the care and custody of the person, but may not sell or dispose of the person's property, or change the person's housing or other placement, without specific authorization from the court (§ 45-5-310(E)).

How a New Mexico guardianship ends or rights are restored

"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." The request "may be made by informal letter to the court or judge," and anyone who knowingly interferes with sending such a request to the court "may be adjudged guilty of contempt of court" (NMSA § 45-5-307(C)). Section 45-5-307 does not state the standard of proof on a petition to end a guardianship.

After a request for review, the court must hold a status hearing, which may be informal; if it finds the person is capable of more autonomy than at the time of the original order, it may remove the guardian, end the guardianship or reduce the guardian's powers (§ 45-5-307(F)). Unless the court waives them, a petition to end a guardianship for reasons other than the person's death gets the same safeguards as a petition for appointment under § 45-5-303, and any proceeding that increases the guardian's authority must follow those safeguards (§ 45-5-307(D), (E)). On petition and after notice and a hearing, the court may also remove a guardian and appoint a successor if that is in the person's best interest or if the guardian fails to perform the duties in § 45-5-312 (§ 45-5-307(A)).

New Mexico also builds in a periodic check. At any time after appointment, but no later than ten years after the initial appointment and every ten years after that, the court must either hold a status hearing or appoint a court investigator to assess the person's capacity and the continued need for a guardian (§ 45-5-307(G)).

Alternatives to guardianship in New Mexico

New Mexico requires alternatives to be addressed at two points: the petition must describe any least restrictive alternative considered or implemented and why it is insufficient (§ 45-5-303(B)(4)), and the court must find that no available alternative resources are suitable (§ 45-5-304(C)(3)).

Supported decision-making agreement. The Supported Decision-Making Act, NMSA §§ 24-7D-1 to 24-7D-14, was enacted by Laws 2025, chapter 84 and took effect July 1, 2025. An agreement must be in a form promulgated by the New Mexico Supreme Court, in writing, dated, signed voluntarily without coercion or undue influence by the decision-maker and the supporter, and must designate a supporter, along with the other contents the section lists (§ 24-7D-4(A)). "Each party to a supported decision-making agreement shall sign the agreement in the presence of at least two adult witnesses whose signatures shall be acknowledged by a notary public" (§ 24-7D-4(B)). A person who receives an original or a copy "shall rely on the agreement, unless the person suspects abuse, neglect or exploitation and makes a report" (§ 24-7D-10).

Powers of attorney. A financial power of attorney and a health-care power of attorney are signed while a person still has capacity; the signing rules are on our New Mexico power of attorney laws page. A person may also nominate a future guardian in advance in a signed writing, and that nominee ranks second in priority for appointment (§ 45-5-311(B)(2)). Free drafting tools are available for a New Mexico power of attorney and a New Mexico advance directive; a tool is not legal advice, and any document must be signed under the New Mexico rules on the power of attorney page.

Family health-care decisions. A surrogate may act only for a patient determined under § 24-7A-11 to lack capacity, and only if no agent or guardian has been appointed or the agent or guardian is not reasonably available (NMSA § 24-7A-5(A)). Under the Uniform Health-Care Decisions Act, an adult or emancipated minor, while having capacity, may designate a surrogate by personally informing the supervising health-care provider. Without a designation, or if the designee is not reasonably available, a reasonably available family member may act as surrogate in this descending order of priority: the spouse (unless legally separated or a petition for annulment, divorce, dissolution or legal separation is pending), an individual in a long-term relationship of indefinite duration, an adult child, a parent, an adult brother or sister, or a grandparent (§ 24-7A-5(B)).

Federal benefits. Social Security appoints its own representative payee when it decides representative payment is in a beneficiary's interest, and a legal guardian is one person it may appoint, not an automatic choice (20 C.F.R. § 404.2001(b)(2)); the guardianship hub covers the federal layer.

Moving to or from New Mexico with a guardianship

New Mexico adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act as Article 5A. A guardian or conservator appointed in New Mexico "may petition the court to transfer the guardianship or conservatorship to another state" (NMSA § 45-5A-301(A)).

Coming the other way, if a guardian has been appointed in another state and no guardianship petition is pending in New Mexico, the out-of-state guardian, after giving notice to the appointing court of an intent to register, may register the guardianship order in New Mexico by filing certified copies of the order and letters of office as a foreign judgment in a district court in any appropriate county (§ 45-5-434).

Recent changes to New Mexico guardianship law

• Laws 2018, chapter 10 (effective July 1, 2018) enacted the voting-rights section (§ 45-5-109) and amended the sections on the petition (§ 45-5-303), the guardian's powers and duties (§ 45-5-312), protective arrangements (§ 45-5-405.1) and the conservator's bond (§ 45-5-411). Its provisions apply to proceedings begun on or after July 1, 2018, and to guardianships, conservatorships and protective arrangements in existence on June 30, 2018, unless the court finds that applying a particular provision would substantially interfere with the effective conduct of the proceeding or prejudice the rights of a party (Laws 2018, ch. 10, § 16).
• Laws 2019, chapter 228 amended the petition, priority, powers and reporting sections and created a grievance procedure: a protected person or any interested person may file a grievance with the court about a guardian or conservator, which the court must review (§ 45-5-110).
• Laws 2022, chapter 36 rewrote the temporary guardian and temporary conservator sections (§§ 45-5-310, 45-5-408).
• Laws 2023, chapter 90 amended the Kinship Guardianship Act and repealed §§ 40-10B-16 to 40-10B-21.
• Laws 2025, chapter 84 created the Supported Decision-Making Act, effective July 1, 2025.

New Mexico guardianship at a glance

Related New Mexico pages

• Guardianship laws by state
• New Mexico power of attorney laws
• New Mexico child custody laws
• New Mexico grandparents' rights
• New Mexico probate

This article provides general legal information about New Mexico guardianship law, not legal advice. Guardianship cases turn on their facts and on local court practice. For advice about a specific situation, contact a lawyer licensed in New Mexico or the district court that would hear the case.

Last updated: October 20, 2026.

Frequently Asked Questions

How do I get guardianship of my grandchild in New Mexico?

Under the Probate Code, a court may appoint a guardian for an unmarried minor only if all parental rights of custody have been terminated or suspended by circumstances or prior court order (NMSA § 45-5-204(A)), although, if necessary, the court may appoint a temporary guardian for no longer than six months even without that condition (§ 45-5-204(C)). The Kinship Guardianship Act is a separate route: it requires, among other conditions, a living parent's written consent, a court order terminating or suspending parental rights, or 90 days of the child living with the petitioner plus a parent who is unwilling or unable to provide adequate care or extraordinary circumstances, proved by clear and convincing evidence (§ 40-10B-8).

Can a relative care for my child in New Mexico without a court order?

A parent may delegate powers over a child's care, custody or property by an acknowledged power of attorney for no more than six months, except the power to consent to marriage or adoption (NMSA § 45-5-104). A caregiver's authorization affidavit under § 40-10B-15 is valid for no more than one year after it is signed, and a parent's contrary health-care decision overrides the caregiver's unless it jeopardizes the child's life, health or safety.

Can a parent name a guardian for a child in a will in New Mexico?

Yes. A parent may appoint a guardian by will or by another writing signed by the parent and attested by at least two witnesses (NMSA § 45-5-202(A)). It takes effect, subject to the child's right to object, only if both parents are dead or incapacitated or the surviving parent has no parental rights or has been adjudged incapacitated, when the guardian's acceptance is filed in the proper court (§ 45-5-202(B)); a child 14 or older may object in writing (§ 45-5-203). A parent of an unmarried incapacitated adult, or the spouse of a married one, may also appoint a guardian by will or attested writing, effective on filing acceptance after seven days' written notice, and the adult's written objection terminates it (§ 45-5-301).

What must be proved to get guardianship of an adult in New Mexico?

The petitioner must prove the allegations by clear and convincing evidence against a legal presumption of capacity (NMSA § 45-5-303(I)). The court must find, on that standard, total or specific-area incapacity, that guardianship is necessary, that no available alternative resources are suitable, that it is the least restrictive form of intervention, and that the proposed guardian is qualified, suitable and willing (§ 45-5-304(C)).

Does the person get a lawyer in a New Mexico guardianship case?

The court shall appoint an attorney for the person unless the person already has an attorney of his or her own choice, and the court-appointed attorney has the duties of a guardian ad litem (NMSA § 45-5-303(D)). The person must be present at the hearing unless the court finds by evidence that presence would threaten the health or safety of the person or others, and may present evidence and examine witnesses (§ 45-5-303(G)).

How long does an emergency guardianship last in New Mexico?

A temporary guardianship of an adult may not exceed 30 days, but after a hearing showing good cause the court may extend it for no more than an additional 60 days (NMSA § 45-5-310(C)). A temporary guardian may not sell the person's property or change the person's housing or placement without specific court authorization (§ 45-5-310(E)). On a separate motion, the court must hold a hearing within ten business days, and an appointment made without notice must be served personally on the person and the person's attorney within 24 hours (§ 45-5-310(B), (D)).

Can a guardian stop family members from visiting in New Mexico?

Only in the situations NMSA § 45-5-312(F) allows: a specific court order, a less restrictive alternative in effect that limits contact, or good cause to believe a specified person poses a risk of significant physical, psychological or financial harm. A good-cause restriction may last not more than seven business days for someone with a family or preexisting social relationship, and not more than 60 days for anyone else.

Does New Mexico have supported decision-making agreements?

Yes. The Supported Decision-Making Act, NMSA §§ 24-7D-1 to 24-7D-14, took effect July 1, 2025. The agreement must be in the form the New Mexico Supreme Court promulgates and be signed by each party in the presence of at least two adult witnesses whose signatures a notary acknowledges (§ 24-7D-4).

How can a guardianship be ended in New Mexico?

The person under guardianship or anyone interested in the person's welfare may petition for an order that the person is no longer incapacitated, and the request may be made by informal letter to the court or judge (NMSA § 45-5-307(C)). After a request for review, the court holds a status hearing, which may be informal, and if it finds the person capable of more autonomy it may remove the guardian, end the guardianship or reduce the guardian's powers (§ 45-5-307(F)). The court must also hold a status hearing or appoint a court investigator no later than ten years after appointment and every ten years after that (§ 45-5-307(G)).