It is unusual to be named as guardian for an adult in a will. However, New Mexico law allows spouses and parents to name in a will, or in another writing that is witnessed by two persons, a guardian of their incapacitated spouse or adult child. Only parents and spouses can use this method.

If you are willing to take on the responsibility as guardian when the person who wrote the will dies, you can be appointed fairly easily as guardian if the will of the deceased person is being probated in a court proceeding. First, you must give written notice of your intention to act as a guardian to the incapacitated person and his or her caregiver or closest adult relative. At least seven days after giving notice, you must file a form accepting responsibility with the district court (note) where the will is being probated. (An example of a written notice and the form for acceptance can be found in the Appendix (PDF: 252k)). "Filing" means taking or mailing the written acceptance to the court clerk at the district court. You should have an original and at least two copies of your acceptance.

The clerk will keep the original acceptance for the court records and give you a certified copy and one stamped copy. There will be a small fee for the certified copy. Keep the certified copy as proof of your authority; make copies as necessary. You can use the copies where necessary but keep the certified copy as proof of your authority. The judge may also issue you Letters of Guardianship specifying your authority to act as guardian. Since being appointed in this way takes place as part of a court probate proceeding, the attorney who is representing the personal representative of the deceased person's estate may be able file the necessary paperwork for you.

Once you file the acceptance you will be recognized as the guardian in New Mexico. If someone files a written objection to your acting as guardian, then the appointment is no longer valid and you will have to go through another court proceeding that deals specifically with the appointment of a guardian.