A. The court, at the hearing on the petition for appointment for a guardian pursuant to provisions of Chapter 45, Article 5 NMSA 1978, shall:

(1) inquire into the nature and extent of the functional limitations of the alleged incapacitated person; and

(2) ascertain the alleged incapacitated person's capacity to care for the alleged incapacitated person's own self.

B. If it is determined that the alleged incapacitated person possesses the capacity to care for the alleged incapacitated person's own self, the court shall dismiss the petition.

C. Alternatively, the court may appoint a full guardian as requested in the petition or a limited guardian and confer specific powers of guardianship after finding in the record based on clear and convincing evidence that:

(1) the person for whom a guardian is sought is totally incapacitated or is incapacitated only in specific areas as alleged in the petition;

(2) the guardianship is necessary as a means of providing continuing care, supervision and rehabilitation of the incapacitated person;

(3) there are no available alternative resources that are suitable with respect to the alleged incapacitated person's welfare, safety and rehabilitation;

(4) the guardianship is appropriate as the least restrictive form of intervention consistent with the preservation of the civil rights and liberties of the alleged incapacitated person; and

(5) the proposed guardian is both qualified and suitable, has reviewed the proposed order of appointment and is willing to serve.

D. The court may enter any other appropriate order consistent with the findings of this section.

E. A copy of the order appointing the guardian shall be furnished to the proposed guardian, the incapacitated person and the incapacitated person's counsel.

F. The order shall contain the name and address of the guardian as well as notice of the incapacitated person's right to appeal the guardianship appointment and of the right to seek alteration or termination of the guardianship at any time.

History: 1953 Comp., § 5-304, enacted by Laws 1975, ch. 257, § 5-304; repealed and reenacted by Laws 1989, ch. 252, § 7; 1993, ch. 301, § 5; 2009, ch. 159, § 34.

Repeals and reenactments. — Laws 1989, ch. 252, § 7 repealed former 45-3-304 NMSA 1978, as enacted by Laws 1975, ch. 257, § 5-304, relating to findings and order of appointment, and enacted a new section, effective June 16, 1989.

The 2009 amendment, effective June 19, 2009, in Paragraph (5) of Subsection C, added "has reviewed the proposed order of appointment" and in Subsection E, added "proposed guardian,".

The 1993 amendment, effective July 1, 1993, deleted "dismiss the proceedings or" following "court may" in Subsection D and made a minor stylistic change.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 14 C.J.S. Chemical Dependents § 4; 49 C.J.S. Insane Persons § 40.