Guardianship is the legal process of granting another individual the authority to make financial, legal and medical decisions for an incapacitated person; it removes substantial personal rights from an individual who is no longer able to make sound decisions about his or her life, property and assets.


The authority of a guardian is determined by the court; authority may be full or limited depending on the circumstances. A full guardianship grants another individual the power to make all major decisions for an incapacitated person, while a limited guardianship grants another individual power to make certain decisions for an incapacitated person or the authority to make decisions for a limited period of time.


Since guardianship is determined by the court, proceedings can be timely and costly. Additionally, an incapacitated person has no authority to choose who they would like to be their guardian; that is all determined through the court. Guardianship can be avoided by establishing a durable power of attorney or revocable trust before you become disabled or incapacitated (see New Mexico Durable Power of Attorney and Revocable Trusts for more information).


Guardians are required to keep careful record of their ward’s personal belongings and finances. At no point does a guardian assume ownership of their ward’s assets; they must carefully manage their ward’s assets and make decisions that are in the best interest of their ward. Additionally, guardians may not amend or terminate a will or trust established by the ward before incapacitation. Guardians are legally accountable for any mismanagement.


Planning for your future care is an important part of estate planning. Our experienced New Mexico estate planning attorneys can help you carefully craft an estate plan that not only provides for your loved ones after you die, but provides for your well-being should you become incapacitated and unable to manage your own affairs.


If you have questions about guardianship and how to plan for your future care and well-being, contact one of our New Mexico estate planning attorneys in Albuquerque, Farmington, Las Cruces, Roswell or Santa Fe today.

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