Section 45-5-311 - Who may be appointed guardian; priorities. - New Mexico Statutes

45-5-311. Who may be appointed guardian; priorities.

A.     Any person deemed to be qualified by the court may be appointed guardian of an incapacitated person, except that no individual who operates or is an employee of a boarding home, residential care home, nursing home, group home or other similar facility in which the incapacitated person resides may serve as guardian for the incapacitated person, except an employee may serve in such capacity when related by affinity or consanguinity.

B.     Persons who are not disqualified have priority for appointment as guardian in the following order:

(1)     a guardian or other like fiduciary appointed by the appropriate court of any other jurisdiction;

(2)     a person, as far as known or as can be reasonably ascertained, previously nominated or designated in a writing as defined in Paragraph (4) of Subsection A of Section 45-5-309 NMSA 1978 to serve as guardian or agent in a writing signed by the incapacitated person prior to the incapacitated person's incapacity that has not been revoked by the incapacitated person or terminated by a court;

(3)     the spouse of the incapacitated person;

(4)     an adult child of the incapacitated person;

(5)     a parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent;

(6)     any relative of the incapacitated person with whom the incapacitated person has resided for more than six months prior to the filing of the petition;

(7)     a person nominated by the person who is caring for the incapacitated person or paying benefits to the incapacitated person; and

(8)     any other person.

C.     With respect to persons having equal priority, the court shall select the person it considers best qualified to serve as guardian.  The court, acting in the best interest of the incapacitated person and for good cause shown, may pass over a person having priority and appoint a person having a lower priority under this section and shall take into consideration:

(1)     the preference of the incapacitated person, giving weight to preferences expressed in writing by the person while having capacity;

(2)     the geographic location of the proposed guardian;

(3)     the relationship of the proposed guardian to the incapacitated person;

(4)     the ability of the proposed guardian to carry out the powers and duties of the guardianship; and

(5)     potential financial conflicts of interest between the incapacitated person and proposed guardian.