Young woman taking care of elderly father

Can Children Seek Guardianship Over Their Parents if They are Unable to Take Care of Themselves?

At some point, you might begin to feel as if there has been a role reversal in your life, that you have become the parent and your aging mother or father has become the child. In some situations, you might only need to perform minor caregiving tasks, like organizing your parent’s medications.

If, on the other hand, it is in the best interests of your parents for you to assist with their daily care and welfare or their financial management, you might need to get a guardianship or conservatorship. A New Mexico family law attorney could answer your questions, like, “Can children seek guardianship over their parents if they are unable to take care of themselves?” A lawyer could also advocate on your behalf in that situation.

Understanding the Process for Getting an Adult Guardianship

It will take more than filing papers and making one trip to court to obtain an order of guardianship over an adult in New Mexico. 

Here are the steps one must take when seeking a guardianship over an adult:

  • File a Petition for the Appointment of Guardianship over an Incapacitated Person. You will need to include a Summons for each interested party and a Request for Setting and Notice of Hearing.
  • You must provide notice of the proceedings to all interested parties, which typically include the incapacitated person, as well as that individual’s spouse, parents, and adult children, if any. You could serve at least one of the incapacitated person’s closest adult relatives, if any, if the incapacitated person does not have any adult children.
  • At the initial hearing, the court usually appoints a guardian ad litem (GAL) to represent the person alleged to be incapacitated. The original appointment of the GAL lasts for only 60 days, with the possibility of 30-day extensions.
  • The court will appoint a Qualified Health Care Professional who will perform an investigation and draft a report. At the initial hearing, the court will also appoint a Visitor to Interview. The Visitor will talk to all of the involved parties and produce a report.
  • The judge will make a determination as to whether the subject of the court case is indeed incapacitated and in need of a guardianship. If so, the incapacitated person becomes a ward. The judge can order a full or limited guardianship based on the reports of the professionals, testimony, and other evidence. The court can impose any terms of limitation it chooses on the powers of the guardian.

If the court appoints a guardian, that guardian will have to file regular reports with the court.

Who Can Serve as a Guardian of an Adult in New Mexico?

You must be at least 18 years old and legally competent to serve as someone else’s guardian. An incapacitated person cannot serve as the guardian of another person. Also, the judge will have to approve of a proposed guardian and appoint that person to the position.

What is the Difference Between a Guardian and a Conservator?

A guardian has the responsibility of overseeing the incapacitated individual’s daily well-being. Depending on the specific needs of the ward, well-being could include things like safety, nutrition, clothing, medical care and medications, and living arrangements.

A conservator manages the incapacitated person’s financial matters, including government benefits, investments, income, and expenditures. Sometimes one person serves both as guardian and conservator. 

Is There a Way to Plan for the Possibility of Becoming Incapacitated?

Yes. Before the adult becomes incapacitated, he or she can execute a power of attorney for financial matters. This legal document allows a person to select the individual or professional who will manage his money for him in the event that a devastating illness like dementia or an injury robs him of the ability to make or communicate his decisions for himself.

A New Mexico family law attorney can help your family if your parents can no longer take care of themselves and need a guardian or conservator. Contact our office today for a free consultation.