2018 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 5 - Protection of Persons Under Disability and Their Property
Section 45-5-404 - Original petition for appointment of conservator.

A. The following may petition for the appointment of a conservator:

(1) a person interested in the estate, financial affairs or welfare of an individual, including a person that would be adversely affected by lack of effective management of property or financial affairs of an individual; or

(2) the guardian for an individual.

B. A petition under Subsection A of this section shall state the petitioner's name, principal residence, current street address, if different, relationship to the alleged incapacitated person, interest in the appointment, the name and address of any attorney representing the petitioner and, to the extent known, the following:

(1) the alleged incapacitated person's name, age, principal residence, current street address, if different, and, if different, address of the dwelling in which it is proposed that the alleged incapacitated person will reside if the petition is granted;

(2) the name and address of the alleged incapacitated person's:

(a) spouse, or, if the alleged incapacitated person has none, an adult with whom the alleged incapacitated person is in a long-term relationship of indefinite duration in which the individual has demonstrated an actual commitment to the alleged incapacitated person similar to the commitment of a spouse and in which the individual and the alleged incapacitated person consider themselves to be responsible for each other's well-being;

(b) adult children or, if none, each parent and adult sibling of the alleged incapacitated person or, if none, at least one adult nearest in kinship to the alleged incapacitated person who can be found with reasonable diligence; and

(c) adult stepchildren whom the alleged incapacitated person actively parented during the stepchildren's minor years and with whom the alleged incapacitated person had an ongoing relationship during the two years immediately preceding the filing of the petition;

(3) the name and current address of each of the following, if applicable:

(a) a person responsible for the care or custody of the alleged incapacitated person;

(b) any attorney currently representing the alleged incapacitated person;

(c) the representative payee appointed by the federal social security administration for the alleged incapacitated person;

(d) a guardian or conservator acting for the alleged incapacitated person in New Mexico or another jurisdiction;

(e) a trustee or custodian of a trust or custodianship of which the alleged incapacitated person is a beneficiary;

(f) the fiduciary appointed for the alleged incapacitated person by the federal department of veterans affairs;

(g) an agent designated under a power of attorney for health care in which the alleged incapacitated person is identified as the principal;

(h) an agent designated under a power of attorney for finances in which the alleged incapacitated person is identified as the principal;

(i) a person known to have routinely assisted the alleged incapacitated person with decision making in the six-month period immediately before the filing of the petition; and

(j) any proposed conservator, including a person nominated by the alleged incapacitated person;

(4) a general statement of the alleged incapacitated person's property with an estimate of its value, including any insurance or pension and the source and amount of other anticipated income or receipts;

(5) the reason conservatorship is necessary, including a brief description of:

(a) the nature and extent of the alleged incapacitated person's alleged need;

(b) if the petition alleges the alleged incapacitated person is missing, detained or unable to return to the United States, the relevant circumstances, including the time and nature of the disappearance or detention and any search or inquiry concerning the alleged incapacitated person's whereabouts;

(c) any less restrictive alternative for meeting the alleged incapacitated person's alleged need that has been considered or implemented;

(d) if no less restrictive alternatives have been considered or implemented, the reason it has not been considered or implemented; and

(e) the reason a less restrictive alternative is insufficient to meet the alleged incapacitated person's need;

(6) whether the petitioner seeks a limited conservatorship or a full conservatorship;

(7) if the petitioner seeks a full conservatorship, the reason a limited conservatorship instead of conservatorship is not appropriate;

(8) if the petition includes the name of a proposed conservator, the reason the proposed conservator should be appointed;

(9) if the petition is for a limited conservatorship, a description of the property to be placed under the conservator's control and any requested limitation on the authority of the conservator;

(10) whether the alleged incapacitated person needs an interpreter, translator or other form of support to communicate effectively with the court or understand court proceedings; and

(11) the name and address of an attorney representing the petitioner, if any.

History: 1953 Comp., § 32A-5-404, enacted by Laws 1975, ch. 257, § 5-404; 1989, ch. 252, § 17; 2018, ch. 10, § 8.

The 2018 amendment, effective July 1, 2018, revised the language regarding who may petition for the appointment of a conservator, and revised the information required to be included in a petition for appointment of conservator; deleted former Subsections A and B, and added new Subsections A and B.

Applicability. — Laws 2018, ch. 10, § 16 provided that the provisions of Laws 2018, ch. 10, §§ 1 through 14 apply to:

A. a proceeding for appointment of a guardian or conservator or for a protective arrangement instead of guardianship or conservatorship commenced on or after July 1, 2018; and

B. a guardianship, conservatorship or protective arrangement instead of guardianship or conservatorship in existence on June 30, 2018 unless the court finds application of a particular provision of this act would substantially interfere with the effective conduct of the proceeding or prejudice the rights of a party, in which case the particular provision of this act does not apply and the superseded law applies.

The 1989 amendment, effective June 16, 1989, substituted "of conservator" for "or protective order" in the section heading; in Subsection A, deleted "or for other appropriate protective order" at the end of the introductory paragraph and substituted all of the present language of Paragraph (1) following "person" for "to be protected"; in Subsection B, substituted "state the following" for "set forth to the extent known" in the introductory paragraph and substituted "for whom a conservator is sought" for "to be protected" in Paragraphs (2) and (3) and added Subsections B(11) and B(12); rewrote former Subsection C as Subsections B(9) and B(10).

No jurisdiction where statutory requirements not fulfilled. — Where in the proceeding under former 31-7-14, 1953 Comp., there were no parties defendant, even though the statute specifically stated that the widow and the minors "shall" be made parties defendant, and there was never any service obtained upon the minor heirs of decedent, as the file showed that no summons was ever issued even though the statute provided "summons shall issue," the district court failed to obtain jurisdiction of the parties or the subject matter. Bonds v. Joplin's Heirs, 1958-NMSC-095, 64 N.M. 342, 328 P.2d 597 (decided under former law).

Law reviews. — For note, "Tort Law Either the Parents or the Child May Claim Compensation for the Child's Medical and Non-Medical Damages: Lopez v. Southwest Community Health Services," see 23 N.M. L. Rev. 373 (1993).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 14 C.J.S. Chemical Dependents § 4; 39 C.J.S. Guardian and Ward §§ 21, 25; 49 C.J.S. Insane Persons § 40.