By Merri Rudd, appeared November 16,, 2006, Albuquerque Journal, Business Outlook
Reprinted with permission

Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.

Q: My uncle, who is mentally disabled, lives with my grandmother. If she dies, who would have custody of my uncle since my grandfather is deceased? My mom and my aunt (the only two siblings) are not sure what is necessary from my grandmother to ensure that he is never taken away by the state. B.P, Santa Fe

New Mexico's Uniform Health-Care Decisions Act might allow a surrogate to make health-care decisions for your uncle if no guardian has been appointed. However, a guardian would have broader powers including the authority to make all health and personal care decisions for an incapacitated person, such as surgery, treatment, medication, living arrangements, hiring doctors and nurses, and instructions about life support.

A person may be impaired for reasons such as mental illness, mental deficiency, physical disability or substance abuse that prevents the person from making personal care decisions.

New Mexico has two ways to appoint a guardian for an incapacitated adult: a specific writing or a court procedure.

The parent of an unmarried incapacitated person can appoint a guardian for the incapacitated person either in a will, or in a writing signed by the parent and attested to by at least two witnesses.

If both parents are dead or incapacitated, the appointment becomes effective when the guardian files an acceptance of appointment in the court in which the will is probated. If the appointment was made by a writing other than a will, then the acceptance is filed in the district court in the county where the incapacitated person resides or is present.

The easier method is for your grandmother to put her wishes about your uncle's personal care in writing during her lifetime. Consulting a reputable attorney to make sure this is done properly may save extensive legal fees later on.

In the absence of a written appointment of a guardian, the district court has the power to appoint a guardian to make personal and health-care decisions for an incapacitated adult.

New Mexico's guardianship law encourages the individual's independence and limits the powers given to the guardian. Only those powers necessary to accommodate the incapacitated person's actual functional mental and physical limitations are granted.

Your uncle may also need a conservator to handle his financial affairs if he has income, such as government benefits or a trust fund. Conservatorships require a court proceeding.

The court procedure for obtaining guardianship of an incapacitated adult is very similar to the conservatorship procedure described in a prior column. Both may be combined into one proceeding. Both involve multiple parties:

• The petitioner who files the case, usually with the help of an attorney;
• The court-appointed "guardian ad litem" (a different attorney) who represents the incapacitated person;
• The court-appointed "visitor" who interviews the incapacitated person and submits a written report to the court;
• The court-appointed "qualified health care professional," such as a physician or nurse practitioner, who examines the alleged incapacitated person and submits a written report to the court.

After notice of the upcoming court hearing is given to specified persons, a hearing is held. The judge considers all evidence for and against the guardianship appointment and, if appropriate, enters an order appointing a guardian. The court then issues "Letters of Guardianship," which are official proof of the authority of the guardian to act for the incapacitated person. If the incapacitated person lives in a nursing home or other facility, the guardian gives a copy of the Letters to the administrator and to any doctor who has a medical file on the incapacitated person.

Those who serve as guardians and/or conservators should be trusted individuals who have knowledge of the incapacitated person's desires about health care and the skill and time to handle the person's financial matters.

© 2006, Merri Rudd & Albuquerque Journal, All Rights Reserved