2018 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 5 - Protection of Persons Under Disability and Their Property
Section 45-5-407 - Procedure for court appointment of a conservator.

A. Upon receipt of a petition for appointment of a conservator or other protective order because of minority, the court shall set a date for hearing on the matters alleged in the petition. If at any time in the proceeding the court finds the minor is or may be inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the choice of the minor if the minor is fourteen years of age or older. An attorney appointed by the court to represent a minor shall represent and protect the interests of the minor.

B. Upon receipt of a petition for appointment of a conservator for reasons other than minority, the court shall set a date for hearing. Unless the person to be protected is already represented by an attorney of the person's own choice, the court shall appoint an attorney to represent the person to be protected in the proceeding. The court-appointed attorney shall have the duties of a guardian ad litem as set forth in Section 45-5-404.1 NMSA 1978.

C. If the petition is for the appointment of a conservator for an incapacitated person, the person to be protected shall be examined by a qualified health care professional appointed by the court who shall submit a report in writing to the court. The report shall:

(1) describe the nature and degree of the person's incapacity, if any, and the level of the intellectual, developmental and social functioning of the person to be protected; and

(2) contain observations, with supporting data, regarding the ability of the person to be protected to manage the person's estate or financial affairs.

D. The court shall also appoint a visitor who shall interview the person seeking appointment as conservator and the person to be protected. The visitor shall also visit the present place of residence of the person to be protected. The visitor shall evaluate the needs of the person to be protected and shall submit a written report to the court. The report shall include a recommendation regarding the appropriateness of the appointment of the proposed conservator. The report shall also include recommendations regarding:

(1) those aspects of the person's financial affairs that the person to be protected can manage without supervision or assistance;

(2) those aspects of the person's financial affairs that the person to be protected could manage with the supervision or assistance of support services and benefits; and

(3) those aspects of the person's financial affairs that the person to be protected is unable to manage even with the supervision or assistance of support services and benefits.

Unless otherwise ordered by the court, the appointment of the visitor terminates and the visitor is discharged from duties upon entry of an order appointing a conservator and acceptance of the appointment by the conservator.

E. The person to be protected shall be present at the hearing on the issues raised by the petition and any response to the petition, unless the court determines it is not in the best interest of the person for whom a conservator is sought to be present because of a threat to the health or safety of the person for whom a conservator is sought or others as determined by the court. The court upon request or its own motion may conduct hearings at the location of the person to be protected if the person is unable to be present in court.

F. The person to be protected shall not be permitted by the court to consent to the appointment of a conservator.

G. The court, at the hearing on the petition for appointment of conservator, shall:

(1) inquire into the nature and extent of the functional limitations of the person to be protected; and

(2) ascertain the person's capacity to manage the person's financial affairs.

H. If it is determined that the person to be protected possesses the capacity to manage the person's estate or financial affairs, or both, the court shall dismiss the petition.

I. Alternatively, the court may appoint a full conservator, as requested in the petition, or a limited conservator and confer specific powers of conservatorship after finding in the record based on clear and convincing evidence that:

(1) the person to be protected is totally incapacitated or is incapacitated only in specific areas as alleged in the petition;

(2) the conservatorship is necessary as a means of effectively managing the estate or financial affairs, or both, of the person to be protected;

(3) there are not available alternative resources that enable the effective management of the estate and financial affairs of the person to be protected;

(4) the conservatorship is appropriate as the least restrictive form of intervention consistent with the preservation of the property of the person to be protected; and

(5) the proposed conservator is both qualified and suitable and is willing to serve.

J. After hearing, upon finding that a basis for the appointment of a conservator has been established, the court shall make an appointment of a conservator. The court shall appoint a limited conservator if it determines that the incapacitated person is able to manage some but not all aspects of the incapacitated person's estate and financial affairs. The court shall specify those powers that the limited conservator shall have and may further restrict each power so as to permit the incapacitated person to care for the incapacitated person's estate and financial affairs commensurate with the incapacitated person's ability to do so.

K. A person for whom a conservator has been appointed retains all legal and civil rights except those that have been specifically granted to the conservator by the court. The conservator shall exercise supervisory powers over the estate and financial affairs of the incapacitated person in a manner that is the least restrictive form of intervention consistent with the order of the court.

L. The rules of evidence shall apply and no hearsay evidence that is not otherwise admissible in a court shall be admitted into evidence except as otherwise provided in the Uniform Probate Code.

M. The existence of a proceeding for or the existence of conservatorship is a matter of public record unless the court seals the record after:

(1) the alleged incapacitated person, the protected person subject to conservatorship or the parent or a guardian of a minor subject to conservatorship requests that the record be sealed; and

(2) either:

(a) the petition for conservatorship is dismissed; or

(b) the conservatorship is terminated.

N. An alleged incapacitated person or protected person subject to a proceeding for a conservatorship, whether or not a conservator is appointed, an attorney designated by the alleged incapacitated person or protected person and a person entitled to notice may access court records of the proceeding and resulting conservatorship. A person not otherwise entitled to access to court records under this section for good cause may petition the court for access to court records of the conservatorship. The court shall grant access if access is in the best interest of the alleged incapacitated person or protected person subject to conservatorship or furthers the public interest and does not endanger the welfare or financial interests of the alleged incapacitated person or individual.

O. A report under Section 45-5-409 NMSA 1978 is confidential and shall be sealed on filing, but is available to:

(1) the court;

(2) the alleged incapacitated person or protected person who is the subject of the report, without limitation as to use;

(3) the petitioner, guardian ad litem, visitor and an attorney of record, for purposes of the proceeding;

(4) unless the court directs otherwise, an agent appointed under a power of attorney for finances in which the alleged incapacitated person is identified as the principal; and

(5) any other person if it is in the public interest, as determined by the court, or for a purpose the court orders for good cause.

P. Notwithstanding the provisions of Subsection M of this section, any disclosure of information shall not include any diagnostic information, treatment information or other medical or psychological information.

Q. The issue of whether a conservator shall be appointed for the alleged incapacitated person shall be determined by the court at an open hearing unless, for good cause, the court determines otherwise.

R. Upon request of the petitioner or person to be protected, the court shall schedule a jury trial.

S. Upon entry of an order appointing a conservator, a copy of the order shall be furnished to the person for whom the conservator was appointed and that person's counsel. The order shall contain the name and address of the conservator as well as notice to the person for whom the conservator was appointed of that person's right to appeal the appointment and of that person's right to seek alteration or termination of the conservatorship at any time.

History: 1953 Comp., § 32A-5-407, enacted by Laws 1975, ch. 257, § 5-407; 1989, ch. 252, § 20; 1993, ch. 301, § 17; 1998, ch. 32, § 4; 2018, ch. 10, § 11.

The 2018 amendment, effective July 1, 2018, designated which records of a conservatorship were confidential and which were a matter of public record, and designated who may access confidential court records; deleted former Subsection M, added new Subsections M through O, redesignated former Subsection N as Subsection P, deleted former Subsection O, and added a new Subsection Q.

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.

Temporary provisions. — Laws 2018, ch. 10, § 15 provided that on or before November 1, 2018, and again on or before November 1, 2019, the administrative office of the courts shall report to the legislative finance committee on the following topics:

A. the status of the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act as approved by the national conference of commissioners on uniform state laws, including publication of official commentary and introduction and enactment by state legislatures;

B. the feasibility of the implementation in New Mexico of the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act; and

C. an estimate of the financial cost to the judiciary to implement the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act.

The 1998 amendment, effective May 20, 1998, inserted "person" at the end of Paragraph I(4); inserted "Uniform" in Subsection L; in Subsection M, inserted "except that the public shall be granted access to the following information:" and added Paragraphs M(1) to M(5); and added Subsection N and redesignated the following subsections accordingly.

The 1993 amendment, effective July 1, 1993, rewrote this section to the extent that a detailed comparison is impracticable.

The 1989 amendment, effective June 16, 1989, in Subsection A substituted "shall represent and protect the interests of the minor" for "has the duties of a guardian ad litem" in the last sentence; in Subsection B deleted "or other protective order" following "conservator" in the first sentence, and rewrote the last three sentences; added present Subsections C through F; redesignated former Subsection C as present Subsection G, while deleting "or other protective order" following "conservator" near the beginning and substituting "of a conservator" for "or other appropriate protective order" at the end; deleted former Subsection D, relating to cases involving the veterans administration; and added Subsections H through K.

Conservator for estate of minor. — In the appointment of a conservator for the estate of a minor, the district court was not required to find by clear and convincing evidence that the conservatorship is the least restrictive form of intervention. Chisholm v. Chisholm, 1999-NMCA-025, 126 N.M. 584, 973 P.2d 261, cert. quashed, 128 N.M. 10, 990 P.2d 824.

Appointment and appearance of attorney cannot cure defect in jurisdiction. — Where the jurisdiction of the court was not properly invoked by following the statute in the first instance, the mere appointment and appearance of a member of the bar to act as guardian ad litem cannot cure this defect. Bonds v. Joplin's Heirs, 1958-NMSC-095, 64 N.M. 342, 328 P.2d 597 (decided under former law).

Appointment as guardian ad litem is position of highest trust and no attorney should ever blindly enter an appearance as guardian ad litem and allow a matter to proceed without a full and complete investigation into the facts and law so that his clients will be fairly and competently represented and their rights fully and adequately protected and preserved. Bonds v. Joplin's Heirs, 1958-NMSC-095, 64 N.M. 342, 328 P.2d 597 (decided under former law).

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 §§ 26 to 28; 49 C.J.S. Insane Persons §§ 37, 40.