A. A conservator has all of the powers conferred herein and any additional powers conferred by law on trustees in New Mexico. In addition, a conservator for an unmarried minor, as to whom no one has parental rights, has the duties and powers of a guardian of a minor described in Section 5-209 [45-5-209 NMSA 1978] until the minor attains majority or marries. However, the parental rights so conferred on a conservator do not prevent appointment of a guardian.
B. A conservator has power, without court authorization or confirmation, to invest and reinvest funds of the estate as would a trustee.
C. A conservator, acting reasonably in efforts to accomplish the purpose for which he was appointed, may act without court authorization or confirmation, to:
(1) collect, hold and retain assets of the estate including land in another state, until, in his judgment, disposition of the assets should be made, and the assets may be retained even though they include an asset in which he is personally interested;
(2) receive additions to the estate;
(3) continue or participate in the operation of any business or other enterprise;
(4) acquire an undivided interest in an estate asset in which the conservator, in any fiduciary capacity, holds an undivided interest;
(5) invest and reinvest estate assets in accordance with Subsection B of this section;
(6) deposit estate funds in a bank including a bank operated by the conservator;
(7) acquire or dispose of an estate asset including land in another state for cash or on credit, at public or private sale; and to manage, develop, improve, exchange, partition, change the character of or abandon an estate asset;
(8) make ordinary or extraordinary repairs or alterations in buildings or other structures; to demolish any improvements; and to raze existing, or erect new, party walls or buildings;
(9) subdivide, develop or dedicate land to public use; to make or obtain the vacation of plats and adjust boundaries; to adjust differences in valuation on exchange or to partition by giving or receiving considerations; and to dedicate easements to public use without consideration;
(10) enter for any purpose into a lease as lessor or lessee with or without option to purchase or renew for a term within or extending beyond the term of the conservatorship;
(11) enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;
(12) grant an option involving disposition of an estate asset; and to take an option for the acquisition of any asset;
(13) vote a security, in person or by general or limited proxy;
(14) pay calls, assessments and any other sums chargeable or accruing against or on account of securities;
(15) sell or exercise stock subscription or conversion rights; to consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution or liquidation of a corporation or other business enterprise;
(16) hold a security in the name of a nominee or in other form without disclosure of the conservatorship so that title to the security may pass by delivery, but the conservator is liable for any act of the nominee in connection with the security so held;
(17) insure the assets of the estate against damage or loss, and the conservator against liability with respect to third persons;
(18) borrow money to be repaid from estate assets or otherwise; to advance money for the protection of the estate or the protected person, and for all expenses, losses and liability sustained in the administration of the estate or because of the holding or ownership of any estate assets and the conservator has a lien on the estate as against the protected person for advances so made;
(19) pay or contest any claim; to settle a claim by or against the estate or the protected person by compromise, arbitration or otherwise; and to release, in whole or in part, any claim belonging to the estate to the extent that the claim is uncollectible;
(20) pay taxes, assessments, compensation of the conservator and other expenses incurred in the collection, care, administration and protection of the estate;
(21) allocate items of income or expense to either estate income or principal, including creation or [of] reserves out of income for depreciation, obsolescence or amortization, or for depletion in mineral or timber properties;
(22) pay any sum distributable to a protected person or his dependent, without liability to the conservator, by paying the sum to the distributee or by paying the sum for the use of the distributee either to his guardian or, if none, to a relative or other person with custody of his person;
(23) employ persons, including attorneys, auditors, investment advisors or agents, even though they are associated with the conservator to advise or assist him in the performance of his administrative duties; to act upon their recommendation without independent investigation; and instead of acting personally, to employ one or more agents to perform any act of administration, whether or not discretionary;
(24) prosecute or defend actions, claims or proceedings in any jurisdiction for the protection of estate assets and of the conservator in the performance of his duties; and
(25) execute and deliver all instruments which will accomplish or facilitate the exercise of the powers vested in the conservator.
History: 1953 Comp., § 32A-5-424, enacted by Laws 1975, ch. 257, § 5-424.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Authority generally. — A conservator is authorized to generally manage all aspects of the incapacitated person's estate, including operating any business, investing funds, buying and selling property, and employing accountants and attorneys, pursuant to 45-5-424 NMSA 1978. In re Estate of Gardner, 1992-NMCA-122, 114 N.M. 793, 845 P.2d 1247.
Conservator had authority to bind estate to arbitration agreement. — In a wrongful death action, where the personal representative of the decedent's estate alleged that the nursing home, where decedent lived prior to her death, was negligent in hiring staff and that the nursing home's physicians were negligent in failing to timely and properly diagnose decedent's condition, and where the managing company of the nursing home filed a motion to compel arbitration of the underlying claims in the wrongful death action based on an arbitration agreement contained in the nursing home's resident admission agreement, which was signed by the decedent's appointed conservator when decedent was first admitted to the nursing home, the estate was bound by the arbitration agreement because a conservator has the power to enter into arbitration agreements on an incapacitated person's behalf to facilitate the conservator's enumerated powers, and an arbitration agreement survives an incapacitated person's death for the purposes of a wrongful death action. Jerry Erwin Assocs. Inc. v. Estate of Asher, 290 F.Supp.3d 1213 (D. N.M. 2017).
Conservator may not file bankruptcy petition for missing debtor. — A conservator may not file a voluntary petition for bankruptcy on behalf of a debtor who is missing and whose whereabouts are unknown. In re King, 234 B.R. 515 (Bankr. D.N.M. 1999).
Purchases and support for ward and the ward's spouse. — Where an automobile, stove and refrigerator had been used for the care and comfort of ward and had been reasonably necessary for the support of the ward's spouse, purchase of these items by the guardian of an incompetent's estate was a reasonable and justifiable expenditure. Also, in the absence of a statute, continuation of a payment of $350 per month from the ward's estate for the ward's spouse's support was reasonable, in light of the needs of the dependent, the actions and fidelity of the dependent toward the incompetent, and the size of the corpus of the estate. Bachechi v. Albuquerque Nat'l Bank, 1955-NMSC-022, 59 N.M. 159, 280 P.2d 1048.
Law reviews. — For note, "Contracts - Exculpatory provisions - A Bank's Liability for Ordinary Negligence: Lynch v. Santa Fe National Bank," see 12 N.M.L. Rev. 821 (1982).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Constitutionality of statutes authorizing guardian to sell or lease land of ward, 4 A.L.R. 1552.
Right of guardian to expend principal of ward's estate for maintenance and support, 5 A.L.R. 632.
Right of guardian to invest trust funds in corporate stock, 12 A.L.R. 574, 122 A.L.R. 657, 78 A.L.R.2d 7.
Court's power to authorize guardian to borrow ward's money, 30 A.L.R. 461.
Duty of one purchasing ward's property, or loaning money on security of such property, to see that proceeds are properly applied, 56 A.L.R. 195.
Exchange as within power of sale, 63 A.L.R. 1003.
Character of claims or obligations contemplated by statute expressly giving guardian authority as to borrowing money, 85 A.L.R. 215.
Liability for interest or profits on funds of estate deposited in bank or trust company which is itself executor, administrator, trustee or guardian, or in which executor, etc., is interested, 88 A.L.R. 205.
Liability of trustee, guardian, executor or administrator for loss of funds invested, as affected by order of court authorizing the investment, 88 A.L.R. 325.
Power of court or guardian as to mortgaging infant's real property, 95 A.L.R. 839.
Power and duty of trustee, executor, administrator or guardian as regards protection of investment in stocks by submitting to voluntary assessment, 104 A.L.R. 979.
Guardian's purchase from corporation of which he is officer or stockholder as voidable or as ground for surcharging his account, 105 A.L.R. 449.
Ownership of stock in corporation in which guardian holds stock in fiduciary capacity, by guardian in his own right, 106 A.L.R. 220, 161 A.L.R. 1039.
Power of guardian to sell ward's property without order of court, 108 A.L.R. 936.
Guardianship of incompetent or infant as affecting venue of action, 111 A.L.R. 167.
Guardian's power to make election under option in insurance policy, 112 A.L.R. 1063, 127 A.L.R. 454, 136 A.L.R. 1045.
Priority in event of incompetent's death of claims incurred during guardianship over other claims against estate, 113 A.L.R. 402.
Liability of trustee, guardian, executor or administrator for loss of funds, as affected by failure to obtain order of court authorizing investment, in absence of mandatory statute, 116 A.L.R. 437.
Guardian's sale of ward's property initiated before, but not finally concluded until after, ward's attainment of majority, 141 A.L.R. 1022.
Transaction with affiliated corporation by corporate guardian as violation of rule against self-dealing, 151 A.L.R. 905.
Power of guardian as to compromise of liquidated contract claim or money judgment, 155 A.L.R. 196.
Guardian's contract employing attorney as binding upon ward or his estate, 171 A.L.R. 468.
Power of guardian of incompetent to change beneficiaries in ward's life insurance policy, 21 A.L.R.2d 1191.
Liability of incompetent's estate for torts committed by guardian, committee or trustee in managing estate, 40 A.L.R.2d 1103.
Validity and enforceability of agreement to drop or compromise will contest or withdraw objections to probate, or of agreement to induce others to do so, 42 A.L.R.2d 1319.
Power of court to confirm sale of ward's property over objection of guardian, 43 A.L.R.2d 1445.
Power of guardian, committee or trustee of mental incompetent, after latter's death, to pay debts and obligations, 60 A.L.R.2d 963.
Effect of incompetency of joint depositor upon status and ownership of bank account, 62 A.L.R.2d 1091.
Waiver of privilege by personal representative or heir of deceased client or by guardian of incompetent, 67 A.L.R.2d 1268.
Guardian's liability for interest on ward's funds, 72 A.L.R.2d 757.
Capacity of guardian to sue or be sued outside state where appointed, 94 A.L.R.2d 162.
Power to make charitable gifts from estate of incompetent, 99 A.L.R.2d 946.
Factors considered in making election for incompetent to take under or against will, 3 A.L.R.3d 6.
Time within which election must be made for incompetent to take under or against will, 3 A.L.R.3d 119.
Who may make election for incompetent to take under or against will, 21 A.L.R.3d 320.
Power of court or guardian to make noncharitable gifts or allowances out of funds of incompetent ward, 24 A.L.R.3d 863.
Right of guardian or committee of incompetent to incur obligations so as to bind incompetent or his estate, or to make expenditures, without approval by court, 63 A.L.R.3d 780.
Guardian's authority, without seeking court approval, to exercise ward's right to revoke trust, 53 A.L.R.4th 1297.
Ademption or revocation of specific devise or bequest by guardian, committee, conservator or trustee of mentally or physically incompetent testator, 84 A.L.R.4th 462.
Propriety of surgically ivading incompetent or minor for benefit of third party, 4 A.L.R.5th 1000.
Power of incompetent spouse's guardian or representative to sue for granting or vacation of divorce or annulment of marriage, or to make compromise or settlement in such suit, 32 A.L.R.5th 673.
14 C.J.S. Chemical Dependents § 4; 39 C.J.S. Guardian and Ward §§ 69 to 144; 49 C.J.S. Insane Persons §§ 49, 78.