463 P.3d 487
N.M. Ct. App.2019Background:
- In 2014 the district court appointed a plenary guardian (Guardian) and a conservator (Conservator) for C.G. under New Mexico’s Uniform Probate Code; the appointing order and letters contained some ambiguous “temporary” language but the court later found the guardianship remained in effect.
- Guardian later sought revocation after C.G. moved home; Guardian retained attorney Robert Richards to represent C.G.’s preferences at a January 21, 2016 status/hearing when no active GAL was in place.
- Conservator (and Daughter) objected, arguing only the conservator or the court could lawfully contract for legal services for an incapacitated person and moved to strike Richards’ entry of appearance and to bar him from contacting C.G.
- The district court granted the motion in May 2016, reasoning Guardian lacked authority to hire counsel and only Conservator could retain an attorney; the court struck Richards’ entry, barred him from contact with C.G., and left fee issues for later.
- Richards appealed. The Court of Appeals reversed: it held Richards had standing to appeal as a directly aggrieved attorney and that, on the statutes as they existed at the relevant time, the text did not unambiguously prohibit a guardian from hiring counsel to represent the incapacitated person’s preferences in a guardianship-review proceeding (while preserving court oversight and separate fee questions).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to appeal | Richards: as the attorney whose entry was stricken and who was barred from contacting C.G., he is directly aggrieved and may appeal. | Conservator: Richards was not a party below and lacks standing to challenge guardianship/conservatorship authority. | Richards has a right to appeal as a directly aggrieved attorney who appeared below; appellate jurisdiction proper. |
| Authority to hire counsel for ward in guardianship-review proceeding | Richards/Guardian: §45-5-312(B) gives guardians broad parental-like powers, allowing Guardian to hire counsel to present C.G.’s preferences at the hearing. | Conservator: Conservator (and §45-5-424 and related provisions) has exclusive authority to employ attorneys/contract for ward’s legal services; Guardian cannot hire without conservator or court approval. | The statutes do not unambiguously grant conservator exclusive authority to hire counsel for the personal-representation purpose at issue; a guardian may hire counsel in these circumstances, subject to court supervision. |
| Conservator’s power to employ attorneys as exclusive control over contracts/payments | Richards: Conservator must pay unless hiring unreasonable; Guardian’s retention was lawful. | Conservator: Only conservator can enter contracts for the ward and approve payment; guardian lacked authority; retention invalid without conservator ratification. | Conservator’s authority to employ attorneys is tied to estate/administrative duties; statutory text does not establish a per se rule that guardians may never retain counsel when a conservator exists. Fee/payment and ratification issues remain for the trial court to decide. |
Key Cases Cited
- De Vargas Sav. & Loan Ass’n v. Campbell, 535 P.2d 1320 (N.M. 1975) (New Mexico requires allegation of direct injury to confer standing)
- In re Gardner, 845 P.2d 1247 (N.M. Ct. App. 1992) (substance of actions may determine whether actor functioned as conservator despite title used)
- Nelson v. Nelson, 878 P.2d 335 (N.M. Ct. App. 1994) (Section 45-5-312 grants guardians broad powers; guardian may bring proceedings on ward’s behalf in some contexts)
- In re Borland, 288 P.3d 912 (N.M. Ct. App. 2012) (statutory construction in UPC matters is reviewed de novo)
- Weeks v. Indep. Sch. Dist. No. I-89, 230 F.3d 1201 (10th Cir. 2000) (attorneys have standing to appeal orders that directly aggrieve them)
- Raley v. Hyundai Motor Co., 642 F.3d 1271 (10th Cir. 2011) (recognizes exceptions allowing non-named parties to appeal when directly injured by the district court’s ruling)