A. The court may appoint an individual, or a corporation with general power to serve as trustee, as conservator of the incapacitated person. The following are entitled to consideration for appointment in the order listed:
(1) a conservator, guardian of property or other like fiduciary appointed or recognized by the appropriate court of any other jurisdiction in which the incapacitated person resides;
(2) a person, as far as known or as can be reasonably ascertained, previously nominated or designated in a writing signed by the incapacitated person prior to incapacity that has not been revoked by the incapacitated person or terminated by a court. This includes writings executed under the Uniform Health-Care Decisions Act, the Mental Health Care Treatment Decisions Act, the Uniform Power of Attorney Act, the Uniform Probate Code and the Uniform Trust Code;
(3) the spouse of the incapacitated person;
(4) an adult child of the incapacitated person;
(5) a parent of the incapacitated person or a person nominated by the will of a deceased parent;
(6) any relative of the incapacitated person with whom the incapacitated person has resided for more than six months prior to the filing of the petition;
(7) a person nominated by the person who is caring for the incapacitated person or paying benefits to the incapacitated person; and
(8) any other person.
B. A person under the priorities of Paragraph (1), (2), (3), (4), (5) or (6) of Subsection A of this section may nominate in writing a person to serve in the person's stead. With respect to persons having equal priority, the court shall select the one who is best qualified of those willing to serve.
C. The court, for good cause, may pass over a person having priority and appoint a person having lesser priority under this section and shall take into consideration:
(1) the preference of the incapacitated person;
(2) the geographic location of the proposed conservator;
(3) the relationship of the proposed conservator to the incapacitated person;
(4) the ability of the proposed conservator to carry out the powers and duties of the conservatorship; and
(5) potential financial conflicts of interest between the incapacitated person and the proposed conservator.
D. A professional conservator shall not serve or be appointed as a conservator of the protected person unless the professional conservator is certified and is in good standing with a national or state organization recognized by the supreme court that provides professional certification for conservators.
History: 1953 Comp., § 32A-5-410, enacted by Laws 1975, ch. 257, § 5-410; 1989, ch. 252, § 23; 1993, ch. 301, § 20; 2019, ch. 228, § 11.
ANNOTATIONSThe 2019 amendment, effective July 1, 2019, provided additional qualifications for a conservator of an incapacitated person; in Subsection A, deleted former Paragraphs A(2) and A(3) added a new Paragraph A(2) and redesignated former Paragraphs A(4) through A(7) as Paragraphs A(3) through A(6), respectively; in Subsection B, after "Paragraph (1), (2),", deleted "(4), (5), (6) or (7)" and added "(3), (4), (5) or (6)"; and added Subsection D.
The 1993 amendment, effective July 1, 1993, substituted "incapacitated person" for "person for whom a conservator is sought" throughout the section; in Subsection A, added Paragraph (2) and redesignated former Paragraphs (2) through (8) as Paragraphs (3) through (9); and made a related stylistic change in Subsection B.
The 1989 amendment, effective June 16, 1989, in Subsection A, substituted "the person for whom a conservator is sought" for "the estate of a protected person" in the first sentence of the introductory paragraph, substituted "person for whom a conservator is sought" for "protected person" in Paragraphs (1) through (7), and added Paragraph (8); and designated the former third sentence of Subsection B as Subsection C, while substituting therein all of the language following "lesser priority" for "or no priority".
Preference of incapacitated person. — The provisions in the New Mexico Uniform Probate Code for appointment of a guardian for an incapacitated person provide some opportunity for choice or preference by the incapacitated person under 45-5-311 NMSA 1978. The same is true of the provisions for appointment of a conservator under this section. However, the provisions for choice or preference in these cases are not as liberal as the provision for appointment of a minor's guardian under 45-5-206 NMSA 1978. In re Pulver, 1994-NMCA-024, 117 N.M. 329, 871 P.2d 985.
Law reviews. — For comment, "In-Migration of Couples from Common Law Jurisdictions: Protecting the Wife at the Dissolution of the Marriage," see 9 N.M.L. Rev. 113 (1978-79).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Minority of parent as affecting right to guardianship of child, 19 A.L.R. 1043.
Right of infant to select own guardian, 85 A.L.R.2d 921.
Who is minor's next of kin for guardianship purposes, 63 A.L.R.3d 813.
Priority and preference in appointment of conservator or guardian for an incompetent, 65 A.L.R.3d 991.
14 C.J.S. Chemical Dependents § 4; 39 C.J.S. Guardian and Ward §§ 17, 18; 49 C.J.S. Insane Persons §§ 42, 43.