Parents of children with developmental disabilities are often surprised to learn that when their child turns eighteen, they no longer have the right to make medical decisions for their child or manage their child’s finances. If the child is incapacitated, that is, unable to manage their personal and/or financial affairs, the parents need to consider guardianship and conservatorship. In New Mexico, the guardian makes decisions related to residential placement, medical treatment and other personal issues, while the conservator makes financial, legal and business decisions.
What is Guardianship?
A guardian makes decisions related to residential placement, medical treatment and other personal issues, while a conservator makes financial, legal and business decisions.Guardianship is the process where an interested party, including the parents of the disabled individual, ask the court to appoint a guardian and/or conservator. The process begins with the filing of a Petition. The court will appoint a Guardian ad Litem to represent the disabled individual’s interests and a Court Visitor, who will investigate the circumstances and report to the Court. The process is designed to protect the disabled individual and insure that the appointment of a guardian and conservator is warranted and that the appointees are qualified to serve in such capacity.
Not all adults with developmental disabilities require the appointment of a guardian and conservator. Guardianship is appropriate where the individual’s parents, physicians, caregivers or other professionals agree that the individual is incapable of making informed decisions and his or her safety and well-being will be at risk if a guardian or conservator is not appointed. In appropriate cases, the court can limit the guardian or conservator’s authority to allow the disabled individual to make his or her own decisions in certain, specified areas. The purpose of a limited guardianship is to adhere to the principle of using the least restrictive alternative.