Rule 1-130.Appointment of a treatment guardian
Last verified June 26, 2026
Full Text of Rule 1-130
Rule History
[Adopted by Supreme Court Order No. 14-8300-013, effective for all cases filed or pending on or after December 31, 2014.]
Committee Commentary
In general
This rule and the accompanying forms resulted from the appointment of the Ad Hoc Committee on Rules for Mental Health Proceedings (the committee). The rule governs proceedings for the appointment of a treatment guardian under NMSA 1978, Section 43-1-15, and is intended to raise the profile of an important, but rarely used, procedure for providing mental health treatment to individuals who lack the capacity to consent to such treatment. A treatment guardian may be appointed when the requirements of this rule have been satisfied, regardless of the respondent’s status as an inpatient, outpatient, detainee, or inmate. If the appointment is made while the respondent is admitted to a mental health facility or housed in a penal institution, the appointment may be limited to the duration of the respondent’s admission, detention, or sentence, so long as the appointment does not exceed one year.
A primary aim of this rule is to increase the likelihood that individuals will access mental health treatment in the community without unnecessary detention or incarceration. For that reason, the issuance of a bench warrant to compel attendance at a hearing under this rule is strongly discouraged.
The appointment of a treatment guardian is not an emergency proceeding. Other statutory procedures are available for involuntarily administering emergency medication to an individual who is in crisis, see, e.g., NMSA 1978, § 43-1-15(G), and for involuntarily detaining an individual for evaluation and treatment, see id. § 43-1-10. The relief provided for in this rule should not be awarded based solely on the respondent’s failure to appear at the hearing or to answer the allegations in the petition. Nothing in this rule, however, is intended to prevent the court from appointing a treatment guardian in the respondent’s absence, so long as the requirements of this rule have been satisfied, including proof of service upon the respondent and the respondent’s attorney and a finding supported by clear and convincing evidence that the respondent lacks capacity to make mental health treatment decisions.
Capacity to make mental health treatment decisions
Section 43-1-15(B) provides that certain individuals or entities who believe that a client is “incapable of informed consent” may petition for the appointment of a treatment guardian. However, the statute does not define the phrase “incapable of informed consent.” But see NMSA 1978, § 43-1-15(B) (“If the client is capable of understanding the proposed nature of treatment and its consequences and is capable of informed consent, the client’s consent shall be obtained before the treatment is performed.”). The committee, therefore, elected to use the phrase “capacity to make mental health treatment decisions” and to define the phrase in accordance with the Mental Health Care Treatment Decisions Act, NMSA 1978, §§ 24-7B-1 to 24-7B-16. See NMSA 1978, § 24-7B-3(C) (defining “capacity” under the Mental Health Care Treatment Decisions Act).
Substitution of treatment guardian
Paragraph G permits a motion for substitution of a treatment guardian, which may be appropriate under a variety of circumstances. In particular, if a treatment guardian’s term coincides with a respondent’s temporary stay at a mental health facility or penal institution, a substitute treatment guardian may be necessary to maximize the treatment guardian’s availability and effectiveness when the respondent is released to a location that is geographically remote from the facility or institution.
[Adopted by Supreme Court Order No. 14-8300-013, effective for all cases filed or pending on or after December 31, 2014.]
Plain-English Summary
This rule provides a careful process for substitute mental-health decisions. It applies when a mental health or developmental disabilities professional or a physician has proposed a course of treatment and that professional, the physician, or any interested person believes the respondent lacks capacity to decide. An authorized interested person petitions the court with detailed information—the respondent’s diagnosis and symptoms, where treatment is given, the proposed treatment and guardian, and the allegation that the respondent cannot give informed consent—and requests an appointment for a set period not exceeding one year.
The court sets a hearing within three business days (extendable for good cause), and the petition and notice are served on the respondent and the respondent’s attorney. Unless the respondent waives it, a hearing follows at which the respondent has counsel and the rights to be present, call witnesses, and cross-examine; the petitioner presents professional testimony on incapacity and the proposed treatment and shows the guardian accepts the duties. If the court finds incapacity by clear and convincing evidence, it appoints a treatment guardian for up to a year, with written findings, and a substitute guardian may be sought during the term. As the committee commentary explains, this is not an emergency proceeding and bench warrants to compel attendance are strongly discouraged.
Frequently Asked Questions
What must the court find to appoint a treatment guardian?
By clear and convincing evidence, that the respondent lacks capacity to make mental health treatment decisions—after a hearing where the respondent has counsel and the rights to be present, call witnesses, and cross-examine.
How long can a treatment guardian be appointed?
For a specified period not to exceed one year, with a substitute guardian available during the term if circumstances change.