N.M. Stat. § 45-5-402.1

Current through 2024, ch. 69

Section 45-5-402.1 - Permissible court orders

A. The court shall exercise the authority conferred in Chapter 45, Article 5 NMSA 1978 to encourage the development of maximum self-reliance and independence of a protected person and make protective orders only to the extent necessitated by the protected person's mental and adaptive limitations and other conditions warranting the procedure.

B. The court has the following powers that may be exercised directly or through a conservator in respect to the estate and financial affairs of a protected person:

(1) while a petition for appointment of a conservator or other protective order is pending and after notice and a preliminary hearing, the court may preserve and apply the property of the person to be protected as may be required for the support of the person or his dependents;

(2) after notice and hearing and upon determining that a basis for an appointment or other protective order exists with respect to a minor without other disability, the court has all those powers over the estate and financial affairs of the minor which are or may be necessary for the best interest of the minor and members of the minor's immediate family;

(3) after notice and hearing and upon determining that a basis for an appointment or other protective order exists with respect to a person for reasons other than minority, the court, for the benefit of the person and members of the person's immediate family, has all the powers over the estate and financial affairs which the person could exercise if present and not under disability, except the power to make a will. These powers include, but are not limited to, the power to:

(a) make gifts;

(b) convey or release contingent and expectant interests in property, including marital property rights and any right of survivorship incident to joint tenancy;

(c) exercise or release powers held by the protected person as trustee, personal representative, custodian for minors, conservator or donee of a power of appointment;

(d) enter into contracts;

(e) create revocable or irrevocable trusts of property of the estate which may extend beyond the disability or life of the person;

(f) exercise rights to elect options and change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value;

(g) exercise options of the person to purchase securities or other property;

(h) exercise any right to an elective share in the estate of the person's deceased spouse; and

(i) renounce or disclaim any interest by testate or intestate succession or by inter vivos transfer.

C. The court may exercise or direct the exercise of the following powers only if satisfied, after notice and hearing, that it is in the best interest of the protected person, and that the person either is incapable of consenting or has consented to the proposed exercise of power:

(1) to exercise or release powers of appointment of which the protected person is donee;

(2) to renounce or disclaim interests;

(3) to make gifts in trust or otherwise exceeding twenty percent of any year's income of the estate; and

(4) to change beneficiaries under insurance and annuity policies.

D. A determination that a basis for appointment of a conservator or other protective order exists has no effect on the capacity of the protected person.

NMS § 45-5-402.1

Laws 1993, ch. 301, § 25.