December 4, 2025- Linda D. v. Sharon M. Otero, No. A-1-CA-41980

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: __________	2
Filing Date: December 4, 2025	3
IN THE MATTER OF THE	4
GUARDIANSHIP AND	5
CONSERVATORSHIP PROCEEDINGS	6
FOR LINDA D., a person in need	7
of protection.	8
LINDA D.,	9
Respondent-Appellant,	10
v. 	No. A-1-CA-41980	11
SHARON M. OTERO,	12
Petitioner-Appellee.	13
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	14
Erin B. O’Connell, District Court Judge	15
Disability Rights of New Mexico	16
Caitlin M. Palencia	17
Albuquerque, NM	18
for Appellant	19
Law Office of Benjamin Hancock, P.C.	20
Benjamin Hancock	21
Albuquerque, NM	22
for Appellee	23
Court of Appeals of New Mexico
Filed 12/4/2025 9:06 AM

OPINION	1
HANISEE, Judge.	2
{1} 	The opinion filed August 18, 2025, is hereby withdrawn, and this opinion is	3
substituted in its place. Respondent Linda D. appeals the district court’s order	4
appointing a limited conservator pursuant to Article 5 of the Uniform Probate Code.	5
See 	NMSA 	1978, 	§§ 45-5-101 	to 	-7-612 	(1975 	as 	amended 	through 	2024).	6
Respondent primarily argues, among other things, that the district court’s decision	7
to appoint a conservator is not supported by substantial evidence. We agree and	8
reverse. As such, we do not address Respondent’s other arguments.	9
BACKGROUND	10
{2} 	This matter arose from a petition filed by Respondent’s daughter (Petitioner)	11
for the appointment of a plenary guardian and plenary conservator for Respondent.	12
In her petition, Petitioner alleged that Respondent suffers from several mental health	13
conditions that render her an “incapacitated person” within the meaning of Section	14
45-5-101(F) and that such requires appointment of a guardian and a conservator for	15
Respondent’s personal and financial affairs. After receiving the petition, the district	16
court appointed a guardian ad litem, a court visitor, and a qualified healthcare	17
professional (collectively, Court-Appointed Professionals), as required by statute, to	18
evaluate Respondent’s “capacity and whether a guardian and/or conservator shall be	19
appointed.” 	See 	§ 	45-5-407(B)-(D). 	All 	three 	Court-Appointed 	Professionals	20

2
conducted the required investigations into Respondent’s capacity and submitted	1
separate 	written 	reports 	to 	the 	district 	court 	containing 	their 	findings 	and	2
recommendations. In their separate reports, each Court-Appointed Professional	3
concluded that while a guardian was not appropriate, a limited conservatorship was	4
necessary to protect Respondent only during those times in which Respondent was	5
hospitalized or unable to manage her financial affairs during periods when she feels	6
“down.”	7
{3} 	The district court then held a hearing on the matter that was attended by	8
Respondent, who was represented by counsel, along with Petitioner and the three	9
Court-Appointed Professionals. During the hearing, all three Court-Appointed	10
Professionals provided testimony consistent with the conclusions in their reports:	11
that 	neither 	a 	guardianship 	of 	any 	kind 	nor 	a 	plenary 	conservatorship 	was	12
appropriate, but a limited conservatorship was necessary to protect Respondent’s	13
financial affairs during periods in which Respondent is hospitalized or incapacitated	14
due to her mental health.	15
{4} 	The Guardian Ad Litem (GAL), Milos Marjanovic, specifically noted three	16
instances within the preceding year in which Respondent had attempted to self-harm	17
and required medical attention, inpatient treatment, or law enforcement involvement.	18
The GAL further explained that Respondent admitted she had stored approximately	19
$30,000 in cash in her apartment and that such was a concern for Respondent’s safety	20

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because Respondent had told people in her neighborhood about the money. All three	1
reports from the Court-Appointed Professionals noted allegations that Respondent	2
had recently allowed at least one unidentified person to live with her in her	3
apartment, bolstering concerns about Respondent’s personal and financial safety.	4
{5} 	Both the GAL and the court visitor, Mary Galvez, testified about their	5
concerns regarding Respondent’s ability to manage her estate and financial affairs	6
during potential future instances of mental incapacity. The GAL explained that much	7
of Respondent’s estate consists of real property and associated bank accounts held	8
in a special needs trust established for her benefit. The court visitor testified that	9
Respondent did not have many assets outside of the trust that needed to be managed.	10
Specifically, Respondent receives approximately $1,600 per month in social security	11
disability 	income 	and 	back 	child 	support. 	Collectively, 	the 	Court-Appointed	12
Professionals noted that Respondent was expected to inherit money from the sale of	13
real property owned by Respondent’s family members, but there is no indication in	14
the record whether that money would be placed in trust or distributed to Respondent	15
outright in the future. The GAL expressed concern about Respondent’s ability to	16
manage income from the properties should the proceeds be distributed while	17
Respondent 	was 	experiencing 	a 	mental 	health 	episode 	similar 	to 	those 	she	18
experienced in the months preceding the hearing. The court visitor expressed similar	19
concerns, stating that if Respondent’s current residence was sold—which is a	20

4
property held in trust for her—during such an episode, Respondent would need	1
someone to make financial decisions for her, such as executing a new lease. The	2
court visitor stated that a limited conservatorship was the least restrictive means to	3
accomplish this while protecting Respondent’s personal autonomy and financial	4
well-being.	5
{6} 	The testimony of the qualified healthcare professional, Dr. Rex Swanda,	6
consisted mainly of his assertion that he stood by the conclusions in his report. He	7
did, however, reiterate his opinion that Respondent “lacks full capacity” to make	8
financial decisions and that limited conservatorship was necessary to protect her	9
financial resources and affairs. His report stated that Respondent has struggled with	10
financial decision-making “to the point that her long-term financial stability and	11
security is precarious.”	12
{7} 	Respondent also testified on her own behalf during the hearing. Respondent	13
stated that since the time she was interviewed by the Court-Appointed Professionals,	14
she had put the $30,000 in cash into a bank account that was jointly owned by her	15
sister. Respondent further testified that she had named her sister and her nephew in	16
an “advanced designation” of a representative payee for her social security income	17
should Respondent become unable to manage her finances. Respondent further	18
discussed other mechanisms of protection for herself and her assets, such as an	19
advanced healthcare directive and a psychiatric advanced directive, which she had	20

5
already established or was in the process of establishing at the time of the hearing.	1
Respondent also testified at length regarding her ability to manage her finances	2
throughout the past thirty years, including during instances in which she was	3
hospitalized due to her mental health, noting that she had no bills that went unpaid	4
and that she had maintained a credit score of 806. Respondent stated that she has not	5
gone into debt during these instances.	6
{8} 	At the conclusion of the hearing, the district court found that Respondent	7
lacked capacity within the meaning of the New Mexico Probate Code and concluded	8
that a limited conservatorship was necessary to protect Respondent’s estate and	9
financial affairs during periods of incapacity. The court appointed a professional to	10
act as Respondent’s conservator with plenary authority, but limited the conservator’s	11
authority to periods in which Respondent “is unable to manage all of her estate and	12
all of her financial affairs during periods of incapacity.” Respondent appeals,	13
arguing in pertinent part that substantial evidence does not support the district court’s	14
decision to appoint a limited conservator for her affairs.	15
DISCUSSION	16
{9} 	Appointment of a conservator requires proof of certain statutory elements by	17
clear and convincing evidence. See § 45-5-407(I). In district court, clear and	18
convincing evidence is that which “instantly tilt[s] the scales in the affirmative when	19
weighed against the evidence in opposition[,] and the fact[-]finder’s mind is left with	20

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an abiding conviction that the evidence is true.” State ex rel. Child., Youth & Fams.	1
Dep’t v. Heather S., 2025-NMSC-002, ¶ 43, 563 P.3d 821 (internal quotation marks	2
and citation omitted). On appeal, when reviewing whether a district court’s decision	3
is supported by substantial evidence of a clear and convincing nature, “we do not	4
reweigh the evidence and we will uphold the district court’s judgment if, viewing	5
the evidence in the light most favorable to the judgment, a fact[-]finder could	6
properly determine that the clear and convincing standard was met.” Id. (alteration,	7
internal quotation marks, and citation omitted). If we conclude that such an	8
evidentiary standard was met, we then review the district court’s resulting legal	9
conclusions de novo. See id. ¶ 44 (stating that we review the district court’s	10
conclusions of law de novo).	11
{10} 	In general terms, a conservator may be appointed only if clear and convincing	12
evidence establishes the following: (1) the person to be protected is either “totally	13
incapacitated” or is “incapacitated only in specific areas”; (2) the conservatorship is	14
necessary to “effectively manag[e] the estate or financial affairs, or both, of the	15
person to be protected”; (3) “there are not available alternative resources that enable	16
management” of such; (4) “the conservatorship is appropriate as the least restrictive	17
form of intervention consistent with the preservation of the property of the person to	18
be protected”; and (5) the proposed conservator is “qualified[,]” “suitable,” and	19
“willing to serve.” Section 45-5-407(I)(1)-(5). An “incapacitated person” is defined	20

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as “any person who demonstrates over time either partial or complete functional	1
impairment by reason of mental illness[ or] mental deficiency . . . to the extent that	2
the person is unable to manage the person’s personal affairs or the person is unable	3
to manage the person’s estate or financial affairs or both.” Section 45-5-101(F).	4
“[I]nability to manage [one’s] estate or financial affairs” is further defined as “gross	5
mismanagement, as evidenced by recent behavior, of one’s income and resources or	6
medical inability to manage one’s income and resources that has led or is likely in	7
the near future to lead to financial vulnerability.” Section 45-5-101(H). If the district	8
court determines that “the person to be protected possesses the capacity to manage	9
the person’s estate or financial affairs, or both, the court shall dismiss the petition.”	10
Section 45-5-407(H).	11
{11} 	Respondent 	argues 	that 	the 	record 	lacks 	evidence 	supporting 	that	12
conservatorship is necessary, however limited, because there is no 	evidence	13
Respondent is incapacitated to such an extent that she could not manage her financial	14
affairs and estate “even during times when she is experiencing depressive episodes.”	15
Respondent points to her credit score of 806, her substantial cash savings, and the	16
facts that she has always paid her bills and has never gone into significant debt.	17
While Respondent acknowledges that the three Court-Appointed Professionals all	18
“relied heavily on the three instances [Respondent] received inpatient treatment” in	19

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the year preceding the hearing, she asserts that there was no evidence connecting her	1
mental health issues with an inability to manage her estate or financial affairs.	2
{12} 	Petitioner argues to the contrary, pointing to evidence of Respondent’s	3
longstanding struggles with mental illness. Petitioner highlights Section 45-5-	4
101(H), which allows a person to be deemed incapacitated through a showing of	5
“medical inability to manage one’s income and resources that has led or is likely in	6
the near future to lead to financial vulnerability.” Petitioner asserts that the evidence	7
presented regarding Respondent’s hospitalizations and other mental health episodes	8
clearly and convincingly establishes such medical inability, although intermittent,	9
and justifies the district court’s appointment of a limited conservator. For the reasons	10
set forth, we disagree with Petitioner and conclude that substantial evidence does not	11
exist to support the district court’s finding that Respondent cannot manage her	12
financial affairs.	13
{13} 	The most direct evidentiary support for the district court’s appointment of a	14
limited conservator is the unanimous recommendations and associated testimony of	15
the three Court-Appointed Professionals that one was necessary. However, neither	16
the reports nor the testimony of any of these three witnesses contains evidence that	17
Respondent is unable to “manage [her] estate or financial affairs,” as required by	18
statute. See § 45-5-407(H) (“If it is determined that the person to be protected	19
possesses the capacity to manage the person’s estate or financial affairs, or both, the	20

9
court 	shall 	dismiss 	the 	petition.”). 	For 	instance, 	the 	qualified 	healthcare	1
professional’s statement that Respondent has struggled with financial decision-	2
making “to the point that her long-term financial stability and security is precarious”	3
is supported only by observations of Respondent’s behavior unrelated to finances.	4
He asserted that Respondent’s “behavior has resulted in significant problems in	5
effectively managing [the property held in trust for Respondent]” and pointed to	6
instances 	in 	which 	Respondent 	verbally 	forgave 	rent 	for 	other 	tenants 	or	7
“interfer[ed] with the relationship between tenants and the management company.”	8
He further pointed to Respondent’s “behavioral outbursts” and alcohol abuse.	9
{14} 	While Respondent’s behavior in this regard, as well as the qualified healthcare	10
professional’s 	conclusion 	that 	she 	suffers 	from 	mildly 	impaired 	cognitive	11
functioning, may indirectly result in some adverse financial consequences for	12
Respondent, such is not evidence that Respondent is unable to manage her estate or	13
finances. See § 45-5-101(H) (defining “inability to manage [one’s] estate or financial	14
affairs” as “gross mismanagement, as evidenced by recent behavior, of one’s income	15
and resources or medical inability to manage one’s income and resources”). The	16
qualified healthcare professional’s report and testimony do not contain allegations	17
or factual circumstances showing that Respondent has mismanaged her finances but	18
simply advances that conclusion based on her other behaviors. Any conclusion that	19
Respondent’s behavior may have a deleterious effect on Respondent’s long-term	20

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financial well-being is speculative and insufficient to constitute clear and convincing	1
evidence of “medical inability” that may lead to “financial vulnerability.” See id.	2
{15} 	The court visitor’s and the GAL’s reports and testimony similarly lack	3
evidence supporting their conclusions that a limited conservatorship is necessary to	4
protect Respondent’s financial affairs. At the hearing, both expressed concern about	5
Respondent’s mental health episodes, pointing to concerns related to the quantity of	6
cash Respondent once stored in her apartment—even if now moved to a bank	7
account—her past hospitalizations for mental health reasons, and Respondent’s	8
anticipated inheritance of significant amounts of money if trust assets or other	9
properties are sold to continue supporting her. The GAL specifically noted that the	10
apartment complex in which Respondent lives and that is held in trust for her has	11
presented significant maintenance costs and is “steadily . . . losing revenue.” The	12
court visitor, in turn, stated that “if the apartment complex had to be sold . . . [and	13
Respondent] is in a period where she’s lacking capacity, somebody would have to	14
have authority to, for example, execute a lease.” Both the court visitor and the GAL	15
opined that during Respondent’s mental health episodes, she cannot manage such	16
financial affairs and, in those instances, requires the assistance of a conservator.	17
{16} 	As with the qualified healthcare professional’s concerns, these too are	18
conclusory and do not indicate that Respondent is, in fact, unable to manage her	19
finances. While the record establishes that Respondent had been hospitalized and	20

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suffered from mental health issues, neither the court visitor nor the GAL pointed to	1
any 	instance 	in 	which 	such 	circumstances 	have 	had 	a 	negative 	effect 	on	2
Respondent’s financial estate or affairs. But see § 45-5-407(I)(2) (stating that	3
appointment of a conservator requires “clear and convincing evidence that . . . the	4
conservatorship is necessary as a means of effectively managing the estate or	5
financial affairs, or both, of the person to be protected”). It is undisputed that	6
Respondent, despite her history with mental illness and her hospitalizations related	7
to that illness, has maintained a remarkably high credit score, has never gone into	8
significant debt, if any, and has not let bills go unpaid. The court visitor’s and the	9
GAL’s concerns that Respondent may be unable, due to a mental health crisis, to	10
manage large sums of money if a family property is sold or to execute a new lease	11
if necessary are also speculative. As we have already indicated, while Respondent	12
has been hospitalized in the recent past, her financial estate has remained in good	13
standing. Absent evidence that Respondent cannot manage her financial affairs there	14
is little basis, if any, for us to conclude that a conservator is necessary. See § 45-5-	15
407(I)(1)-(2) (requiring, for appointment of a conservator, that clear and convincing	16
evidence show that the person to be protected is both incapacitated and that a	17
conservatorship is “necessary as a means of effectively managing [their] estate or	18
financial affairs”); see also § 45-5-101(F) (defining an “incapacitated person,” in	19

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part, as one who “by reason of mental illness[ or] mental deficiency . . . is unable to	1
manage the person’s estate or financial affairs”).	2
{17} 	We further note that, even if substantial evidence did exist to establish that	3
Respondent was at times incapacitated within the meaning of Section 45-5-101(F)	4
and (H) during periods when she was hospitalized, there was no showing that other,	5
less-restrictive forms of intervention were inadequate to protect Respondent’s	6
financial resources. See § 45-5-407(I)(4) (requiring that “the conservatorship is	7
appropriate 	as 	the 	least 	restrictive 	form 	of 	intervention 	consistent 	with 	the	8
preservation of the property of the person to be protected”). Respondent points out	9
that 	the 	conservator 	was 	appointed 	to 	manage 	only 	those 	components 	of	10
Respondent’s 	estate 	outside 	of 	the 	trust 	established 	for 	her. 	That 	includes	11
Respondent’s social security income, her child support payments, and her cash assets	12
of approximately $30,000, which is now stored in a joint bank account. As	13
Respondent indicates, some alternatives to protecting these assets are various	14
advance directives and a joint bank account designation. Despite the district court’s	15
assertions to the contrary, the record is absent any evidence that such measures,	16
among others, are insufficient to adequately protect Respondent’s property. For all	17
of the above reasons, we conclude that substantial evidence does not exist to support	18
the district court’s appointment of a limited conservator for Respondent.	19

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CONCLUSION	1
{18} 	We reverse the district court’s order appointing a limited conservatorship.	2
{19} 	IT IS SO ORDERED.	3
_____________________________	4
J. MILES HANISEE, Judge	5
WE CONCUR:	6
___________________________________	7
MEGAN P. DUFFY, Judge	8
___________________________________	9
SHAMMARA H. HENDERSON, Judge	10