A. If after notice in accordance with Section 45-5-405 NMSA 1978 to all interested persons, as defined in Section 45-1-201 NMSA 1978, and after hearing, it is established that a basis exists as described in Section 45-5-401 NMSA 1978 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 NMSA 1978.
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 NMSA 1978 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.
History: Laws 1993, ch. 301, § 26; 2018, ch. 10, § 10.
ANNOTATIONSThe 2018 amendment, effective July 1, 2018, clarified how courts would be permitted, without appointing a conservator, to issue orders of protective arrangements authorizing persons to protect the financial interests or property of protected persons, including establishing eligibility for benefits, executing transactions for the sale, mortgage, lease, or other transfer of property, purchasing an annuity, and entering into contractual arrangements, clarified the process by which a court can restrict a person's access to a protected person or their property, and required courts to consider the best interest of the protected person and the protected person's preferences when issuing orders of protective arrangements; in Subsection A, after "without appointing a conservator, may", deleted the remainder of the subsection, which related to protective arrangements and certain single transactions for the care of protected persons, and added "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 NMSA 1978"; and deleted former Subsections B and C, and added new Subsections B through F.
Applicability. — Laws 2018, ch. 10, § 16 provided that the provisions of Laws 2018, ch. 10, §§ 1 through 14 apply to:
A. a proceeding for appointment of a guardian or conservator or for a protective arrangement instead of guardianship or conservatorship commenced on or after July 1, 2018; and
B. a guardianship, conservatorship or protective arrangement instead of guardianship or conservatorship in existence on June 30, 2018 unless the court finds application of a particular provision of this act would substantially interfere with the effective conduct of the proceeding or prejudice the rights of a party, in which case the particular provision of this act does not apply and the superseded law applies.