2019 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 5 - Protection of Persons Under Disability and Their Property
Part 4 - PROTECTION OF PROPERTY OF PERSONS UNDER DISABILITY AND MINORS
Section 45-5-429 - Individual liability of conservator.

A. Unless otherwise provided in the contract, a conservator is not individually liable on a contract properly entered into in the conservator's fiduciary capacity in the course of administration of the estate unless the conservator fails to reveal the conservator's representative capacity and identify the estate in the contract.

B. The conservator is individually liable for obligations arising from ownership or control of property of the estate or for torts committed in the course of administration of the estate only if the conservator is personally at fault.

C. Claims based on contracts entered into by a conservator in the conservator's fiduciary capacity on obligations arising from ownership or control of the estate or on torts committed in the course of administration of the estate may be asserted against the estate by proceeding against the conservator in the conservator's fiduciary capacity, whether or not the conservator is individually liable for those claims.

D. Any question of liability between the estate and the conservator individually may be determined in a proceeding for accounting, surcharge or indemnification or other appropriate proceeding or action.

E. No person shall request, procure or receive a release or waiver of liability, however denominated, of a conservator, an agent, an affiliate or a designee of a conservator or any other third party acting on behalf of a conservator.

F. A release or waiver of liability that is requested, procured or received contrary to the provisions of this section is void.

History: 1953 Comp., § 32A-5-429, enacted by Laws 1975, ch. 257, § 5-429; 2019, ch. 228, § 13.

The 2019 amendment, effective July 1, 2019, prohibited waivers of liability for conservators, and provided that any release or waiver of liability requested, procured or received contrary to the provisions of this section is void; and added Subsections E and F.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Liability in absence of mandatory statute, of guardian for loss of funds as affected by failure to obtain court order authorizing investment, 116 A.L.R. 437.

Transaction with affiliated corporation, by corporate guardian as violation of rule against self-dealing, 151 A.L.R. 905.

Liability of incompetent's estate for torts committed by guardian, committee or trustee in managing estate, 40 A.L.R.2d 1103.

Guardian's liability for interest on ward's funds, 72 A.L.R.2d 757.

17A C.J.S. Contracts § 347; 14 C.J.S. Chemical Dependents § 4; 39 C.J.S. Guardian and Ward § 93; 49 C.J.S. Insane Persons § 86.