2021 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 45-5-415 - Death, substitution, review and termination of conservatorship.
A. On the petition of the incapacitated person or a person interested in the incapacitated person's welfare, the court may remove a conservator for good cause, upon notice and hearing. A temporary conservator may be appointed pursuant to Section 45-5-408 NMSA 1978 pending a final hearing.
B. Upon death, resignation or removal of a conservator, the court may appoint another conservator or make any other order that may be appropriate. If a successor conservator is appointed, the successor conservator succeeds to the title and powers of the predecessor.
C. The incapacitated person or a person interested in the incapacitated person's welfare may petition for an order that the incapacitated person is no longer in need of a conservator and for removal or resignation of the conservator. A request for this order may be made by informal letter to the court or judge. Any person who knowingly interferes with transmission of this kind of request to the court may be adjudged guilty of contempt of court.
D. Unless waived by the court upon the filing of a petition to terminate a conservatorship for reasons other than termination of minority or the death of the person under conservatorship, the court shall follow the same procedures as set forth in Section 45-5-407 NMSA 1978.
E. In a proceeding that increases the conservator's authority or reduces the autonomy of the incapacitated person, the court shall follow the same procedures to safeguard the rights of the incapacitated person as those that apply to a petition for appointment of a conservator, as set forth in Section 45-5-407 NMSA 1978.
F. Following receipt of a request for review, the court shall hold a status hearing, which may be informal, to determine the appropriate order to be entered. If the court finds the incapacitated person is capable of more autonomy than at the time of the original order, the court may enter an order removing the conservator, terminating the conservatorship or reducing the powers previously granted to the conservator. The court has the option to follow all or part of the procedures that apply for the appointment of a conservator, as set forth in Section 45-5-407 NMSA 1978.
G. At any time following the appointment of a conservator, but not later than ten years after the initial appointment of a conservator for an incapacitated person and every ten years thereafter, the court shall:
(1) hold a status hearing, after notice to the conservator, the incapacitated person and appropriate interested persons, to review the status of the incapacitated person's capacity and the continued need for a conservator; or
(2) appoint a court investigator to assess the incapacitated person's capacity. The court investigator shall prepare a detailed report to the court regarding the status of the incapacitated person's capacity and the continued need for a conservator. Any report shall be made available to the conservator, the incapacitated person and interested persons identified by the court.
H. If the court is unable to contact either the conservator or the incapacitated person and neither appears for the status hearing held pursuant to Paragraph (1) of Subsection G of this section, the court shall appoint a guardian ad litem to investigate and report to the court as to the status of the incapacitated person and the conservator. Any report shall be made available to the conservator, the incapacitated person and appropriate interested persons, if known to the court.
I. Following the status hearing or the court's report from the court investigator or guardian ad litem on the status of the incapacitated person and the conservator as provided in Subsection H of this section, the court may enter an appropriate order; provided that, in entering an order that increases the conservator's authority or reduces the autonomy of the incapacitated person, the court shall follow the same procedures to safeguard the rights of the incapacitated person as those that apply to a petition for appointment of a conservator, as set forth in Section 45-5-407 NMSA 1978.
History: 1953 Comp., § 32A-5-415, enacted by Laws 1975, ch. 257, § 5-415; 1989, ch. 252, § 24; 1993, ch. 301, § 21; 2019, ch. 228, § 12.
ANNOTATIONSThe 2019 Amendment, effective July 1, 2019, provided the court with additional duties regarding the substitution, review and termination of a conservatorship; in Subsection D, added "Unless waived by the court"; and added Subsections E through I.
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, added "termination of conservatorship" to the section heading, substituted the present provisions of Subsection A for "The court may remove a conservator for good cause, upon notice and hearing", and added Subsections C and D.
Protected person's change of will. — A conservator who believes the protected person legitimately wants to change the protected person's will, is not required to either: (1) petition to terminate the conservatorship under 45-5-430 NMSA 1978; or (2) seek instruction from the appointing court pursuant to 45-5-416 NMSA 1978; while either of these may be a legitimate procedure, neither is required by the UPC before a person whose property is under a conservatorship is entitled to execute a will. Lucero v. Lucero, 1994-NMCA-128, 118 N.M. 636, 884 P.2d 527.
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 §§ 37, 48 to 53; 49 C.J.S. Insane Persons § 45.
