New Mexico Temporary Guardianship Agreement

Introduction

Key Things to Know

1. 1

   The parent's instrument is a delegation by acknowledged power of attorney under NMSA 1978 Section 45-5-104. The parent signs it and the caregiver is the person receiving the powers. A separate Caregiver's Authorization Affidavit under Section 40-10B-15 is signed by the caregiver, not the parent. Its statutory form is in Section 40-10B-15(J) and is hosted by the New Mexico Courts self-representation site. The affidavit must be substantially in the statutory form.

2. 2

   The parent's power of attorney may not exceed six months. The caregiver's affidavit is not valid for more than one year after the date it is signed.

3. 3

   The parent's power of attorney must be an acknowledged power of attorney. The affidavit is sworn to before a notary public. The affidavit is given to schools and providers, and if the child stops living with the caregiver, the caregiver must notify each recipient.

4. 4

   The power of attorney may delegate any of the parent's powers regarding care, custody or property of the child, except consent to marriage or adoption. The affidavit lets the caregiver enroll the child in early intervention, child development programs, Head Start, preschool or K-12 school, consent to medical care including immunizations, sports physicals, dental and mental health care, and serve as authorized school contact.

5. 5

   Under the affidavit, if the affidavit complies, a medical, dental or mental health care provider who relies in good faith, without actual knowledge of facts contrary to those stated, is protected from criminal and civil liability, and has no duty of further inquiry. A parent's contrary decision on that care supersedes the caregiver's unless it jeopardizes the child's life, health or safety. This page does not promise that any school or provider must accept either document.

6. 6

   This is not a court guardianship. Under the caregiver's affidavit the caregiver does not get legal custody, and the parent's rights are unchanged. For the power of attorney, Section 45-5-104 says "another person" and states no age or relationship restriction. The affidavit caregiver must be an adult, 18 or older, with whom the child lives, and a relative may complete more items for full medical authority.

7. 7

   If this document does not fit your situation, or a longer or court-backed arrangement is needed, New Mexico has court options: a temporary guardian under the Kinship Guardianship Act (Section 40-10B-7, up to 180 days or until the case is decided, whichever comes first) or a temporary guardian of a minor under Section 45-5-204(C) (up to six months). A court guardianship over a parent's objection is a contested case. DocDraft's guardianship-of-a-minor-petition page covers the court petition. For abuse or danger to a child, contact the New Mexico child protective agency. For disputes between parents, see DocDraft's child-custody-agreement and parenting-plan pages.

New Mexico Requirements for Temporary Guardianship Agreement

• Parent Power of Attorney

  A parent or guardian may delegate to another person, by an acknowledged power of attorney, any of the parent's powers regarding care, custody or property of the minor child (NMSA 1978 Section 45-5-104).

• Six-Month Limit

  The parent's delegation may not exceed a period of six months (NMSA 1978 Section 45-5-104).

• Acknowledged Power of Attorney

  The parent's delegation must be made by an acknowledged power of attorney (NMSA 1978 Section 45-5-104).

• Marriage and Adoption Exclusion

  The power to consent to marriage or adoption of the minor cannot be delegated (NMSA 1978 Section 45-5-104).

• Caregiver Affidavit Signed by Caregiver

  The Caregiver's Authorization Affidavit is signed and sworn to before a notary public by the caregiver, an adult 18 or older with whom the child lives, not by the parent (NMSA 1978 Section 40-10B-15).

• One-Year Affidavit Limit

  A caregiver's affidavit is not valid for more than one year after the date of its execution (NMSA 1978 Section 40-10B-15(C)).

• Affidavit Powers

  The affidavit authorizes school enrollment, consent to medical, dental and mental health care, and designation as authorized school contact (NMSA 1978 Section 40-10B-15(A)).

• Parent Decision Overrides Affidavit

  A contrary decision of a parent or other person with legal custody supersedes the caregiver's decision on medical, dental or mental health care unless it jeopardizes the child's life, health or safety (NMSA 1978 Section 40-10B-15(D)).

• Provider Good-Faith Reliance

  Providers of medical, dental or mental health care who rely in good faith on a complying affidavit without actual knowledge of contrary facts are protected from criminal and civil liability (NMSA 1978 Section 40-10B-15(E), (F)).