The appointment of a guardian, while sometimes necessary in order to protect the rights and well being of a vulnerable individual, can often be unduly restrictive.  There are less restrictive alternatives to guardianship available within the existing law that are less costly, quicker and simpler to accomplish and far less restrictive.

When you are considering the need for a Guardian, these are some alternatives available today in New Mexico.

If an Individual can make decisions about many but not all aspects of his/her care, then
consider:

Limited Guardianship:
A Court Appointment is required, but the Guardian is able to make only those decisions specifically identified in the Court Order.  The individual retains all other decisions-making authority.

If an Individual needs help with Medical Care only, consider:

Advanced Directives:
Any individual with capacity can create their own Advanced Directive and inform those around him/her and the doctor.  No one can create Advanced Directives for another.  Advanced Directives cannot be changed without the individual’s express approval.

HealthCare Agent or Surrogate:
An Individual can select the person to serve as surrogate; the surrogate will take the Individual’s wishes into account; No appointment or Court appearance is needed.  The surrogate’s name should appear in the medical records.

If an Individual needs help making financial decisions, consider:

Representative Payee:
If an individual receives only disability benefits such as Suplemental Social Security (SSI), Veterans (VA) or Railroad benefits, a payee can be appointed to manage the benefits for an individual.  Funds are held in a separate account for the individual and the payee pays all bills from that account.  Appointment is simple, by notification of the Payer agency (Social Security or Veterans Administration) of the name of the Representative Payee.

Trust:
Resources that exceed an individual’s income limit can be placed into a Special Needs Trust for the individual.  Once in the trust, the resources cannot be counted against benefits to disqualify an individual from social security or Medicaid but are available to an individual for special or supplemental uses.  Typically, these resources cannot be used for food, clothing or shelter and may revert to Medicaid upon the individual’s death.

Special Needs Trusts may be established for one individual and held in trust or established as part of a larger Pooled trust, by the completion of a Trust agreement and initial deposit to open the trust account.  The trustee manages the resources within the trust and provides the individual with access to his or her funds according to prescribed rules and procedures.

Conservatorship:
If an individual has significant assets and resources and is unable to manage the assets appropriately, a conservator may be appointed to act in the financial best interest, of an individual.  Conservators, like Guardians, are Court appointed. Conservators, like Guardians, have a duty to insure that the financial assets of an individual are prudently managed and the law requires that the conservator make regular reports and accountings to the Court.