A. If after notice in accordance with Section 45-5-405 N.M. Stat. Ann. to all interested persons, as defined in Section 45-1-201 N.M. Stat. Ann., and after hearing, it is established that a basis exists as described in Section 45-5-401 N.M. Stat. Ann. for affecting the estate and financial affairs of a person, the court, without appointing a conservator, may issue an order pursuant to Subsection B of this section for a protective arrangement instead of conservatorship for the person. Unless the person already has an attorney of the person’s own choice, the court shall appoint an attorney to represent the person at the hearing. The court-appointed attorney shall have the duties of a guardian ad litem, as set forth in Section 45-5-404.1 N.M. Stat. Ann..

Terms Used In New Mexico Statutes 45-5-405.1

  • Annuity: A periodic (usually annual) payment of a fixed sum of money for either the life of the recipient or for a fixed number of years. A series of payments under a contract from an insurance company, a trust company, or an individual. Annuity payments are made at regular intervals over a period of more than one full year.
  • Contract: A legal written agreement that becomes binding when signed.
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Fraud: Intentional deception resulting in injury to another.
  • Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
  • Lease: A contract transferring the use of property or occupancy of land, space, structures, or equipment in consideration of a payment (e.g., rent). Source: OCC
  • Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
  • Settlement: Parties to a lawsuit resolve their difference without having a trial. Settlements often involve the payment of compensation by one party in satisfaction of the other party's claims.

B. The court, instead of appointing a conservator, may:

(1)     authorize a person or direct a person to execute a transaction necessary to protect the financial interest or property of the protected person, including:

(a) an action to establish eligibility for benefits;

(b) payment, delivery, deposit or retention of funds or property;

(c) sale, mortgage, lease or other transfer of property, including water rights and oil, gas and other mineral interests;

(d) purchase of an annuity;

(e) entry into a contractual relationship, including a contract to provide for personal care, supportive services, education, training or employment;

(f) addition to or establishment of a trust;

(g) ratification or invalidation of a contract, trust or other transaction, including a transaction related to the property or business affairs of the protected person; or

(h) settlement of a claim; or

(2)     restrict access to the protected person’s property by a specified person whose access to the property places the protected person at serious risk of financial harm.

C. After the notice and hearing pursuant to Subsection A of this section, the court may issue an order to restrict access to the protected person or the protected person’s property by a specified person that the court finds by clear and convincing evidence:

(1)     through fraud, coercion, duress or the use of deception and control caused or attempted to cause an action that would have resulted in financial harm to the protected person or the protected person’s property; and

(2)     poses a serious risk of substantial financial harm to the protected person or the protected person’s property.

D. Before issuing an order pursuant to Subsection B or C of this section, the court shall consider the factors described in Section 45-5-417 N.M. Stat. Ann. that a conservator shall consider when making a decision on behalf of an individual subject to conservatorship.

E. Before issuing an order pursuant to Subsection B or C of this section for a protected person who is a minor, the court also shall consider the best interest of the minor, the preference of the parents of the minor and the preference of the minor, if the minor is twelve years of age or older.

F. Before issuing an order pursuant to Subsection B or C of this section for a protected person who is an adult, the court shall also consider the adult’s prior or current directions, preferences, opinions, values and actions, to the extent actually known or reasonably ascertainable.

  Previous section
Next section  
 Part 4 Contents