2021 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 5 - Protection of Persons Under Disability and Their Property
Section 45-5-401 - Conservatorship proceedings.

Universal Citation: NM Stat § 45-5-401 (2021)

Upon petition and after notice and hearing in accordance with the provisions of the [Uniform] Probate Code, the court may appoint a conservator as follows:

A. appointment of a conservator may be made in relation to the estate and financial affairs of a minor if the court determines that:

(1) a minor owns property that requires management or protection that cannot otherwise be provided;

(2) a minor has or may have financial affairs that may be jeopardized or prevented by his minority; or

(3) funds are needed for a minor's support and education and that protection is necessary or desirable to obtain or provide funds; and

B. appointment of a conservator may be made in relation to the estate and financial affairs of a person for reasons other than minority if the court finds that the person has property that may be wasted or dissipated unless proper management is provided; that funds are needed for the support, care and welfare of the person or those entitled to be supported by him; that protection is necessary or desirable to obtain or provide funds; and that:

(1) the person is incapacitated; or

(2) the person is unable to manage his estate and financial affairs effectively for reasons such as confinement, detention by a foreign power or disappearance.

History: 1953 Comp., § 32A-5-401, enacted by Laws 1975, ch. 257, § 5-401; 1987, ch. 12, § 2; 1989, ch. 252, § 16; 1993, ch. 301, § 12.


Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Compiler's notes. — This section includes within its scope some of the functions of former 32-2-1 and 32-2-3, 1953 Comp.

The 1993 amendment, effective July 1, 1993, in Subsection A, inserted "financial" in the introductory paragraph, substituted "financial" for "business" in Paragraph (2) and made minor stylistic changes; and rewrote Subsection B.

The 1989 amendment, effective June 16, 1989, substituted "Conservatorship" for "Protective" in the section heading; deleted "or make other protective order for cause" following "conservator" in the undesignated introductory paragraph; in Subsection A deleted "or other protective order" following "conservator" in the introductory paragraph; and in Subsection B deleted "or other protective order" following "conservator" in the introductory paragraph and substituted "property or financial affairs, or both" for "the estate and affairs" in that paragraph, added present Paragraph (1), redesignated former Paragraph (1) as Paragraph (2) while substituting therein "financial affairs effectively for reasons such as confinement" for "affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement", and redesignated former Paragraph (2) as Paragraph (3) while substituting "and" for "or" near the middle of that paragraph.

Conservatorship does not automatically preclude mental capacity for will. — The Uniform Probate Code carefully separated the disability that is the basis for conservatorship from the incapacity necessitating guardianship; therefore, a testatrix, although a conservator of her property had been appointed, could have the requisite mental capacity and knowledge to execute a will. Lucero v. Lucero, 1994-NMCA-128, 118 N.M. 636, 884 P.2d 527.

Costs of administration. — The cost to prepare a transcript for an appeal taken in good faith is an administrative expense and is chargeable against the ward's estate. In re Pulver, 1994-NMCA-024, 117 N.M. 329, 817 P.2d 985, cert. denied, 117 N.M. 524, 873 P.2d 270.

Law reviews. — For article, "The Family Legal Check-Up: A Guide to Planning and Drafting Wills for Middle-Income Couples with Minor Children," see 8 N.M.L. Rev. 171 (1978).

For note, "Tort Law Either the Parents or the Child May Claim Compensation for the Child and 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. — Right of natural guardian to custody or control of infant's property, 6 A.L.R. 115.

Necessity and sufficiency of notice to alleged incompetent of application for appointment of guardian or committee, 23 A.L.R. 594.

Constitutionality of statute making physical disability ground for appointment of guardian of person or property, 30 A.L.R. 1381.

Remedy for conservation of property of alleged incompetent prior to his adjudication as such, 107 A.L.R. 1392.

Construction and application of statute prescribing that notice of petition or hearing for appointment of guardian be of such nature or be given to such persons as court deems reasonable or proper, 109 A.L.R. 338.

Contract in consideration of renunciation of one's status, or right to appointment, as guardian, executor, administrator, trustee or other fiduciary, as contrary to public policy, 121 A.L.R. 677.

Mental condition which will justify the appointment of guardian, committee or conservator of the estate for an incompetent or spendthrift, 9 A.L.R.3d 774.

14 C.J.S. Chemical Dependents § 4; 39 C.J.S. Guardian and Ward §§ 9, 10; 49 C.J.S. Insane Persons § 11.

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