Mental Health Treatment Guardians

A Mental Health Treatment Guardian is appointed by the court and is given authority to ONLY make substituted decisions regarding mental health treatment (including psychotropic medications) for individuals who are determined by the court to lack capacity to provide informed consent.

Mental Health Treatment Guardianship appointments are limited in scope for a specified period of time not to exceed one year.

At the end of the Mental Health Treatment Guardian’s appointment (6 months to 1 year); if there is reason to believe that the individual is still unable to make their own mental health treatment decisions, the Mental Health Treatment Guardian may petition the court for reappointment. 

Mental Health Treatment Guardianship Referral Process

• A “Petition for Appointment of Mental Health Treatment Guardian” is filed in the District court where the individual resides.
  • If the individual is in a treatment facility or hospital the physician may submit a referral to the District Attorney’s Office.
  • If the individual is not a patient of a treatment facility or hospital, any interested party can file a petition in the District Court.
• The individual has the right to be represented by an attorney.
• A copy of the Petition for Appointment of Mental Health Treatment Guardian is served to the individual and their attorney.
• A hearing is held with the individual and their attorney, the district attorney, physician and the proposed Mental Health Treatment Guardian.
  • During the hearing the court will hear testimony from all parties and decide whether a Mental Health Treatment Guardian is necessary.

If the court appoints a Mental Health Treatment Guardian, they will specify the amount of time of the appointment (not to exceed 1 year). 

Note: If an individual resides in Bernalillo County, the civil clerk for the court is located at the "Children's Court” located at 5100 2nd St NW, Albuquerque, NM 87107.    

Mental Health Treatment Guardian Qualifications

The Developmental Disabilities Council’s Office of Guardianship (OOG) is a statewide publicly funded program that contracts with Mental Health Treatment Guardians to provide mental health treatment decisions for adults who have been determined incapacitated by the New Mexico District Court.

Mental Health Treatment Guardians who are contracted with OOG are required to follow the legal authority and guardianship practices, including but not limited to:

• Mental Health and Developmental Disabilities Code (NMSA 1978, §§ 43-1-1 to -25)
• Mental Health Care Treatment Decisions Act (NMSA 1978, §§ 24-7B-1 to -16)
• Uniform Health-Care Decisions Act (NMSA 1978, §§ 24-7A-1 to -18)
• Adult Protective Services Act (NMSA 1978, §§ 27-7-1 to -31)
• Rule of the Office of Guardianship (9.4.21 NMAC)

OOG Mental Health Treatment Guardians are required to:

• Employ or contract with competent Mental Health Treatment Guardians, as determined by education and experience to perform treatment guardianship services.
• Ensure that all decisions made on behalf of a Protected Person, as per scope of the guardianship order, are made by a trained Mental Health Treatment Guardian.
• Comply with the Caregiver’s Criminal History Screening Act, (NMSA 1978, §§ 29-17-1 to -5) and follow the Caregiver’s Criminal History Screening Requirements, (7.1.9 NMAC).
• Implement internal written procedures available to all Protected Persons to present complaints relating to guardianship services, complying with the rules of the Office of Guardianship, 9.4.21.14 NMAC, Complaints Against Contractors.

Mental Health Treatment Guardian Duties and Responsibilities

It is the responsibility of the Mental Health Treatment Guardian to ensure that:

• Protected Persons are receiving the least restrictive standard of services, to the highest degree possible;
• Protected Persons are involved in individual planning, decision-making, implementation and evaluation of those services;
• All services provided are designed to enhance, promote and expand independence, self-sufficiency, self-esteem and quality of life of a Protected Person;
• At minimum attempt one in-person, individual face-to-face visit is conducted with each Protected Person on a monthly basis; and
• The Mental Health Treatment Guardian can only consent to mental health treatment (including psychotropic medications) and does not have the authority to make decisions about any other medical treatment.

A Mental Health Treatment Guardian does not have the authority to:

• Admit an individual into the hospital; or
• Agree to extend a voluntary admission to a mental health treatment facility.