A. It is unlawful for a cemetery to hold out to the public or sell endowed care in connection with the sale of burial space until it has complied with the requirements of the Endowed Care Cemetery Act. Endowed care cemeteries shall establish and maintain with a state or federally chartered depository institution or trust company doing business in the state an irrevocable trust fund, the income only of that fund to be available to the cemetery in the furnishing of endowed care. Provided, however, that when the cemetery authority certifies to the director that the services of a state or federally chartered depository institution or trust company are not available, the cemetery may appoint as trustee one or more individuals, none of whom shall be an officer, director, representative, employee or relative of an officer, director or employee of the cemetery authority, which trustee shall have all powers of investment as provided in this section. Endowed care cemeteries may pool their care funds pursuant to Subsection D of Section 58-17-4 N.M. Stat. Ann. as approved by the director upon request by the cemeteries. The net income from the investment of care funds shall never be used for the improvement or embellishment of unsold property to be offered for sale.

B. In establishing its care funds, the cemetery authority may from time to time adopt plans for the general care, maintenance and embellishment of its cemetery, and if the cemetery originally sold cemetery lots without provision for endowed care, it shall have the right to accept deposits from those lot owners for the purpose of establishing endowed care on those lots, provided that the deposits are disposed of in the same manner as regular care funds.