SB 19 — UNIFORM GUARDIANSHIP & OTHER ARRANGEMENTS

This section governs priority for appointment of u [ a successor personal representative but does not apply to the .210286.4 - 4 - SJC/SB 19 selection of a special administrator." SECTION 2.

[NEW MATERIAL ] SEPARATE ACCOUNTS AND RECORDS.-- A.

If a guardian or conservator serves as fiduciary for one or more individuals subject to guardianship or conservatorship, the guardian or conservator shall hold the funds and any investments held as a fiduciary SJC/SB 19 in a separate e e 17 account for each individual subject to guardianshipPage or1 eguardianship eor n d 18 conservatorship.

Except as otherwise provided in the Uniform = = l ] 19 Probate Code, and to the extent that is reasonable and a l r i 20 customary, any other property held by the guardian or t e a t conservator as a fiduciary for one or more individuals subject m m 21 e d to guardianship or conservatorship shall be titled separately:

r e 22 c e r c 23 (1) from the guardian's or conservator's e a n b 24 property;

and u [ (2) for each individual subject to .210286.4 - 5 - SJC/SB 19 guardianship or conservatorship.

ByThe acceptingguardian appointmentor byconservator ashall courtmaintain asthose guardianbooks and records that are in the possession, custody or conservator,control of the guardian or conservator consentsand tothat reviewconcern andSJC/SB examination19 atPage any2 timethe funds, investments or other property held by the courtguardian or itsconservator designeeas ofa all:fiduciary for an individual for seven years, or for such other period as may be provided by the court." SECTION 2.

e e 17 (1) accounts with financial institutions and e e n d 18 other third parties holding funds or investments held by the = = l ] 19 guardian or conservator as a fiduciary for persons under a l r i 20 guardianship or conservatorship;

t e a t (2) other property held by the guardian or m m 21 e d conservator as a fiduciary for persons under guardianship or r e 22 c e r c 23 conservatorship;

and e a n b 24 (3) books and records in the possession, u [ custody or control of the guardian or conservator relating to .210286.4 - 6 - SJC/SB 19 those accounts and that other property.

D.

The guardian or conservator shall cooperate fully to facilitate the review and examination of accounts, property, books and records as set forth in Subsection C of this section.

E.

The guardian or conservator shall maintain those books and records described in Paragraph (3) of Subsection C of this section for no less than seven years, or for such other period as may be provided by the supreme court." SECTION 3.

[NEW MATERIAL ] LIABILITY OF GUARDIAN OR CONSERVATOR FOR ACT OF INDIVIDUAL SUBJECT TO GUARDIANSHIP OR CONSERVATORSHIP.--A guardian or conservator is not personally liable to another person solely because of the guardianship or e e 17 conservatorship for an act or omission of the individual e e n d 18 subject to guardianship or conservatorship." = = l ] 19 SECTION 4.3.

A new section of Part 1 of Article 5 of the a l r i 20 Uniform Probate Code, Section 45-5-109 NMSA 1978, is enacted to t e a t read:

m m 21 e d "45-5-109.

[NEW MATERIAL ] VOTING RIGHTS.--The voting r e 22 c e r c 23 rights of a protected person shall not be abridged or e a n b 24 restricted except pursuant to Article 7, Section 1 of the u [ constitution of New Mexico." .210286.4 - 7 - SJC/SB 19 SECTION 5.4.

PROCEDURE FOR COURT APPOINTMENT OF A GUARDIAN OF AN INCAPACITATED PERSON.-- [A.A.

An interested person may file a petition for theSJC/SB 19 Page 3 appointment of a person to serve as guardian for an alleged incapacitated personperson. under the Uniform Probate Code.

TheB. petition shall state the following:

(1)A petition under Subsection A of this section shall state the petitioner's name, dateprincipal ofresidence, birthcurrent andstreet addressaddress, ofif different, relationship to the alleged incapacitated personperson, forinterest whomin the guardianappointment, isthe soughtname and address of any attorney representing the petitioner and, to bethe appointed;extent known, the following:

(2) the nature of the alleged incapacity as it relates to the functional limitations and physical and mental condition of the alleged incapacitated person and the reasons why guardianship is being requested;

(3) if a limited guardianship is sought, the e e 17 particular limitations requested;

e e n d 18 (4) whether a guardian has been appointed or = = l ] 19 is acting in any state for the alleged incapacitated person;

a l r i 20 (5) the efforts that have been made that t e a t demonstrate due diligence to locate the other court-appointed m m 21 e d guardian, agent or surrogate designated by the allegedly r e 22 c e r c 23 incapacitated person;

e a n b 24 (6) the name and address of the proposed u [ guardian;

.210286.4 - 8 - SJC/SB 19 (7) the name and address of two persons able to contact the proposed guardian if address or telephone contact information of the proposed guardian changes;

(8) the names and addresses, as far as known or as can reasonably be ascertained, of the persons most closely related by blood or marriage to the alleged incapacitated person;

(9) the name and address of the person or institution having the care and custody of the alleged incapacitated person;

(10) the number of other protected persons served by the proposed guardian, the other protected persons' relationships to the proposed guardian and the types of guardianship held if the proposed guardian is an individual;

(11) the reasons the appointment of a guardian is sought and the interest of the petitioner in the e e 17 appointment;

e e n d 18 (12) the steps taken to find less restrictive = = l ] 19 alternatives to the proposed guardianship;

and a l r i 20 (13) the qualifications of the proposed t e a t guardian, including whether the guardian has ever been m m 21 e d convicted of a felony.] r e 22 c e r c 23 A.

An interested person may petition for e a n b 24 appointment of a guardian for an alleged incapacitated person.

u [ B.

A petition under Subsection A of this section .210286.4 - 9 - SJC/SB 19 shall state the petitioner's name, principal residence, current street address, if different, relationship to the alleged incapacitated person, interest in the appointment, the name and address of any attorney representing the petitioner and, to the extent known, the following:

(a) spousespouse, or, if the alleged incapacitated person has none, an adult with whom the alleged incapacitated person hasis sharedin householda responsibilitieslong-term forrelationship moreof thanindefinite sixduration months in which the twelve-monthindividual periodhas immediatelydemonstrated ean eactual 17commitment precedingto the filingalleged incapacitated person similar to the commitment of a spouse and in which the petition;individual and the alleged incapacitated person consider themselves to be responsible for each other's well-being;

e e n d 18 (b) adult children or, if none, each = = l ] 19 parent and adult sibling of the alleged incapacitated person aSJC/SB l19 rPage i4 20 or, if none, at least one adult nearest in kinship to the t e a t alleged incapacitated person who can be found with reasonable m m 21 e d diligence;

and r e 22 c e r c 23 (c) adult stepchildren whom the alleged e a n b 24 incapacitated person actively parented during the u [ stepchildren's minor years and with whom the alleged .210286.4 - 10 - SJC/SB 19 incapacitated person had an ongoing relationship in the two-two-year year period immediately preceding the filing of the petition;

(e) a trustee or custodian of a trust or custodianship of which the alleged incapacitated person is a e e 17 beneficiary;

e e n d 18 (f) any fiduciary for the alleged =SJC/SB =19 lPage ]5 19 incapacitated person appointed by the federal department of a l r i 20 veterans affairs;

t e a t (g) an agent designated under a power of m m 21 e d attorney for health care in which the alleged incapacitated r e 22 c e r c 23 person is identified as the principal;

e a n b 24 (h) an agent designated under a power of u [ attorney for finances in which the alleged incapacitated person .210286.4 - 11 - SJC/SB 19 is identified as the principal;

e e 17 (b) any least restrictive alternative e e n d 18 for meeting the alleged incapacitated person's alleged need =SJC/SB =19 lPage ]6 19 that has been considered or implemented;

a l r i 20 (c) if no least restrictive alternative t e a t has been considered or implemented, the reason it has not been m m 21 e d considered or implemented;

and r e 22 c e r c 23 (d) the reason a least restrictive e a n b 24 alternative instead of guardianship is insufficient to meet the u [ alleged incapacitated person's alleged need;

.210286.4 - 12 - SJC/SB 19 (5) whether the petitioner seeks a limited guardianship or full guardianship;

and (10) whether the alleged incapacitated person e e 17 needs an interpreter, translator or other form of supportSJC/SB to19 ePage e7 nsupport dto 18 communicate effectively with the court or understand court = = l ] 19 proceedings.

a l r i 20 [B.] C.

Notice of a petition under this section for t e a t the appointment of a guardian and the hearing on the petition m m 21 e d shall be given as provided in Section 45-5-309 NMSA 1978.

r e 22 c e r c 23 [C.] D.

After the filing of a petition, the court e a n b 24 shall set a date for hearing on the issues raised by the u [ petition.

Unless an alleged incapacitated person already has .210286.4 - 13 - SJC/SB 19 an attorney of the alleged incapacitated person's own choice, the court shall appoint an attorney to represent the alleged incapacitated person.

[TheThe court-appointed attorney in the proceeding shall have the duties of a guardian ad litem, as set forth in Section 45-5-303.1 NMSA 1978.

D.] E.

(1) describe the nature and degree of the alleged incapacitated person's incapacity, if any, and the level of the [respondent's ] alleged incapacitated person's intellectual, developmental and social functioning;

and (2) contain observations, with supporting data, regarding the alleged incapacitated person's ability to make health care decisions and manage the activities of daily e e 17 living.

eSJC/SB e19 nPage d8 18 [E.] F.

The court shall appoint a visitor who shall = = l ] 19 interview the person seeking appointment as guardian and the a l r i 20 person alleged to be incapacitated.

The visitor shall also t e a t visit the present place of abode of the person alleged to be m m 21 e d incapacitated and the place where it is proposed the alleged r e 22 c e r c 23 incapacitated person will be detained or reside if the e a n b 24 requested appointment is made.

The visitor shall evaluate the u [ needs of the person alleged to be incapacitated and shall .210286.4 - 14 - SJC/SB 19 submit a written report to the court.

Unless otherwise ordered by the court, the appointment of the visitor terminates and the visitor is discharged from the visitor's duties upon entry of an order appointing a guardianSJC/SB e19 ePage 179 guardian and acceptance of the appointment by the guardian.

e e n d 18 [F.] G.

A person alleged to be incapacitated shall = = l ] 19 be present at the hearing on the issues raised by the petition a l r i 20 and any response to the petition unless the court determines by t e a t evidence that it is not in the alleged incapacitated person's m m 21 e d best interest to be present because of a threat to the health r e 22 c e r c 23 or safety of the alleged incapacitated person or others as e a n b 24 determined by the court.

u [ [G.] H.

The court upon request or its own motion .210286.4 - 15 - SJC/SB 19 may conduct hearings at the location of the alleged incapacitated person who is unable to be present in court.

[H.] I.

[I.J.

AThe recordexistence of thea proceedingsproceeding shallfor beor madethe ifexistence requestedof bya theguardianship allegedfor incapacitatedan personadult oris thea allegedmatter incapacitatedof person'spublic attorneyrecord orunless whenthe orderedcourt byseals the court.record after:

Records,(1) reportsthe andalleged evidenceincapacitated submittedperson to the court or recordedindividual bysubject theto courtguardianship shallrequests be confidential, except that the publicrecord shall be grantedsealed; access to the following information:

(1) docket entries;

e e 17 (2) date of the proceeding, appointment and e e n d 18 termination;

= = l ] 19 (3) duration of the guardianship;

and a l r i 20 (4) the name and other information necessary t e a t to identify the alleged incapacitated person.] m m 21 e d J.

The existence of a proceeding for or the r e 22 c e r c 23 existence of a guardianship for an adult is a matter of public e a n b 24 record unless the court seals the record after:

u [ (1) the alleged incapacitated person or .210286.4 - 16 - SJC/SB 19 individual subject to guardianship requests that the record be sealed;

SJC/SB 19 Page 10 (a) the petition for guardianship is dismissed;

The court shall grant access if access is in the best interest of the alleged e e 17 incapacitated person or the protected person or furthers the e e n d 18 public interest and does not endanger the welfare or financial = = l ] 19 interests of the alleged incapacitated person or the protected a l r i 20 person.

t e a t L.

A report pursuant to Subsections E and F of this m m 21 e d section or a written report filed pursuant to Section r e 22 c e r c 23 45-5-303.1 NMSA 1978 is confidential and shall be sealed on e a n b 24 filing, but is available to:

u [ (1) the court;

.210286.4 - 17 - SJC/SB 19 (2) the alleged incapacitated person who is the subject of the report or evaluation, without limitation as to use;

SJC/SB 19 Page 11 (3) the petitioner, visitor, guardian ad litem and an attorney of record for purposes of the proceeding;

and (5) any other person if it is in the public interestinterest, as determined by the court, or for a purpose the court orders for good cause.

[J.] M.

Notwithstanding the provisions of Subsection [I] J of this section, a disclosure of information shall not include diagnostic information, treatment information or other medical or psychological information.

[K.] N.

The issue of whether a guardian shall be e e 17 appointed for the alleged incapacitated person shall be e e n d 18 determined by the court at aan closedopen hearing unlessunless, thefor allegedgood =cause, =the lcourt ]determines 19 incapacitated person requests otherwise.

a l r i 20 [L.] O.

Upon request of the petitioner or alleged t e a t incapacitated person, the court shall schedule a jury trial." m m 21 e d SECTION 6.5.

Section 45-5-309 NMSA 1978 (being Laws 1975, r e 22 c e r c 23 Chapter 257, Section 5-309, as amended) is amended to read:

e a n b 24 "45-5-309.

NOTICES IN GUARDIANSHIP PROCEEDINGS.-- uA. [ [A.

InOn afiling proceeding for the appointment or removal .210286.4 - 18 - SJC/SB 19 of a guardianpetition ofunder anSection incapacitated45-5-303 person,NMSA other1978 thanfor the appointment of a temporary guardian orfor temporaryan suspensionalleged ofSJC/SB a19 guardian,Page notice12 ofincapacitated hearingperson, and a copy of the petitioncourt andshall anyset interima ordersdate, thattime mayand haveplace beenfor enteredhearing shall be given to each of the following:petition.

(1)B. the person alleged to be incapacitated;

(2)A thecopy person'sof spouse,a parentspetition andunder adultSection children,45-5-303 orNMSA if1978 thereand arenotice noof adulta children,hearing aton least one of the person'spetition closestshall adultbe relativesserved ifpersonally anyon canthe bealleged found;incapacitated person.

(3)The notice shall inform the proposedalleged guardian;incapacitated person of the alleged incapacitated person's rights at the hearing and the right to attend the hearing.

and (4) a person, as far as known or as can reasonably be 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 but is not limited to writings executed under the Uniform Health-Care e e 17 Decisions Act, the Mental Health Care Treatment Decisions Act, e e n d 18 the Uniform Power of Attorney Act, the Uniform Probate Code and = = l ] 19 the Uniform Trust Code.

a l r i 20 Notice of hearing shall be given to a person who is t e a t serving as the guardian or conservator of the person to be m m 21 e d protected or who has primary responsibility for the person's r e 22 c e r c 23 care.

e a n b 24 B.

Notice shall be served personally on the alleged u [ incapacitated person and the person's spouse if they can be .210286.4 - 19 - SJC/SB 19 found within New Mexico.

Notice to an out-of-state spouse, the parents and to all other persons, except the alleged incapacitated person, shall be given as provided in Section 45-1-401 NMSA 1978.

C.

At least fourteen days' notice shall be given before the hearing takes place.

The notice shall be in plain language and large type and shall include the following information and shall be substantially in the following form:

"NOTICE TO:

(name and address of person receiving notice) On (date of hearing) at (time of hearing) in (place of hearing) at (city), New Mexico, the (name and address of court) will hold a hearing to determine whether a guardian should be appointed for (name of alleged incapacitated person).

The purpose of this proceeding is to protect (name of alleged incapacitated person).

A copy of the petition requesting e e 17 appointment of a guardian is attached to this notice.

e e n d 18 At the hearing, the court will determine whether (name of = = l ] 19 alleged incapacitated person) is an incapacitated person under a l r i 20 New Mexico law.

t e a t If the court finds that (name of alleged incapacitated m m 21 e d person) is incapacitated, the court at the hearing shall also r e 22 c e r c 23 consider whether (name of proposed guardian, if any) should be e a n b 24 appointed as guardian of (name of alleged incapacitated u [ person).

The court may, in its discretion, appoint some other .210286.4 - 20 - SJC/SB 19 qualified person as guardian.

The court may also, in its discretion, limit the powers and duties of the guardian to allow (name of alleged incapacitated person) to retain control over certain activities.

(Name of alleged incapacitated person) shall attend the hearing and be represented by an attorney.

The petition may be heard and determined in the absence of (name of alleged incapacitated person) if the court determines that the presence of (name of alleged incapacitated person) is not possible.

If (name of alleged incapacitated person) attends the hearing and is not represented by an attorney, the court must appoint an attorney to represent the alleged incapacitated person.

The court may, on its own motion or on request of any interested person, postpone the hearing to another date and time.

____________________________ e e 17 (signature of petitioner)] e e n d 18 A.

On filing of a petition under Section 45-5-303 = = l ] 19 NMSA 1978 for appointment of a guardian for an adult alleged a l r i 20 incapacitated person, the court shall set a date, time and t e a t place for hearing the petition.

m m 21 e d B.

A copy of a petition under Section 45-5-303 NMSA r e 22 c e r c 23 1978 and notice of a hearing on the petition shall be served e a n b 24 personally on the alleged incapacitated person.

The notice u [ shall inform the alleged incapacitated person of the alleged .210286.4 - 21 - SJC/SB 19 incapacitated person's rights at the hearing and the right to attend the hearing.

After the appointment of a guardian, notice of a hearing on a petition for anany order under Part 3 of Chapter 45, e e 17 Article 5 NMSA 1978, together with a copy of the petition, e e n d 18 shall be given to:

= = l ] 19 (1) the protected person subject to aSJC/SB l19 rPage i13 20 guardianship;

t e a t (2) the guardian;

and m m 21 e d (3) any other person the court determines." r e 22 c e r c 23 SECTION 7.6.

Section 45-5-312 NMSA 1978 (being Laws 1975, e a n b 24 Chapter 257, Section 5-312, as amended) is amended to read:

u [ "45-5-312.

GENERAL POWERS AND DUTIES OF THE LIMITED .210286.4 - 22 - SJC/SB 19 GUARDIAN AND GUARDIAN.-- A.

If the court enters judgment pursuant to Subsection C of Section 45-5-304 NMSA 1978, it shall appoint a limited guardian if it determines that the incapacitatedprotected person is able to manage some but not all aspects of personal care.

The court shall specify those powers that the limited guardian shall have and may further restrict each power so as to permit the incapacitatedprotected person to care for the incapacitatedprotected person's own self commensurate with the incapacitatedprotected person's ability to do so.

The limited guardian shall exercise supervisory powers over the incapacitatedprotected person in a manner that is the least restrictive form of intervention consistent with the order of the court.

e e 17 B.

A guardian of ana incapacitatedprotected person has the e e n d 18 same powers, rights and duties respecting the incapacitatedprotected = = l ] 19 person that a parent has respecting an unemancipated minor achild, lSJC/SB r19 iPage 2014 child, except that a guardian is not legally obligated to t e a t provide from the guardian's own funds for the incapacitatedprotected m m 21 e d person and is not liable to third persons for acts of the rprotected e 22 c e r c 23 incapacitated person solely by reason of the guardianship.

In e a n b 24 particular and without qualifying the foregoing, a guardian or u [ the guardian's replacement has the following powers and duties, .210286.4 - 23 - SJC/SB 19 except as modified by order of the court:

(1) to the extent that it is consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the incapacitatedprotected person, a guardian is entitled to custody of the incapacitatedprotected person and may establish the incapacitatedprotected person's place of abode within or without New Mexico;

(2) if entitled to custody of the incapacitatedprotected person, a guardian shall make provision for the care, comfort and maintenance of the incapacitatedprotected person and, whenever appropriate, arrange for training and education.

The guardian shall take reasonable care of the incapacitatedprotected person's clothing, furniture, vehicles and other personal effects and commence conservatorship proceedings if other property of the incapacitatedprotected person is in need of protection;

(3) if no agent is entitled to make [health- e e 17 care] health care decisions for the incapacitatedprotected person under e e n d 18 the provisions of the Uniform Health-Care Decisions Act, then = = l ] 19 the guardian shall make [health-care ] health care decisions for athe lprotected rperson iin 20SJC/SB the19 incapacitatedPage person15 in accordance with the provisions of t e a t that act.

In exercising [health-care ] health care powers, a m m 21 e d guardian may consent or withhold consent that may be necessary r e 22 c e r c 23 to enable the incapacitatedprotected person to receive or refuse medical e a n b 24 or other professional care, counsel, treatment or service.

u [ That decision shall be made in accordance with the values of .210286.4 - 24 - SJC/SB 19 the incapacitatedprotected person, if known, or the best interests of the incapacitatedprotected person if the values are not known;

(4) if no conservator for the estate of the incapacitatedprotected person has been appointed, if the court has determined that a conservatorship is not appropriate and if a guardian appointed by the court has been granted authority to make financial decisions on behalf of the protected person in the order of appointment and in the letters of guardianship pursuant to Subsection C of Section 45-5-308 NMSA 1978, the guardian has the following powers and duties, including the power:

(b) to receive money and tangible e e 17 property deliverable to the protected person and apply the e e n d 18 money and property for support, care and education of the = = l ] 19 protected person, but the guardian shall not use funds from theSJC/SB a19 lPage r16 ithe 20 protected person's estate for room and board that the guardian t e a t or the guardian's spouse, parent or child has furnished the m m 21 e d protected person, unless a charge for the service is approved r e 22 c e r c 23 by order of the court made upon notice to at least one of the e a n b 24 next of kin of the protected person, if notice is possible;

u [ (c) to serve as advocate and decision-decision-maker .210286.4 - 25 - SJC/SB 19 maker for the protected person in any disputes with persons or organizations, including financial institutions, regarding the protected person's finances;

and (5) the guardian shall exercise the guardian's supervisory powers over the incapacitatedprotected person in e e 17 a manner that is least restrictive of the incapacitatedprotected e e n d 18 person's personal freedom and consistent with the need for =SJC/SB =19 lPage ]17 19 supervision.

a l r i 20 C.

A guardian of ana incapacitatedprotected person for whom a t e a t conservator also has been appointed shall control the care and m m 21 e d custody of the incapacitatedprotected person and is entitled to receive r e 22 c e r c 23 reasonable sums for services and for room and board furnished e a n b 24 to the incapacitatedprotected person.

The guardian may request the u [ conservator to expend the incapacitatedprotected person's estate by .210286.4 - 26 - SJC/SB 19 payment to third persons or institutions for the incapacitatedprotected person's care and maintenance.

A guardian for an adult shall not initiate the e e 17 commitment of the adult to a mental health treatment facility eSJC/SB e19 nPage d 18 except in accordance with the state's procedure for involuntary = = l ] 19 civil commitment.

a l r i 20 F.

A guardian for a protected person shall not t e a t restrict the ability of the protected person to communicate, m m 21 e d visit or interact with others, including receiving visitors and r e 22 c e r c 23 making or receiving telephone calls, personal mail or e a n b 24 electronic communications, including through social media or u [ participating in social activities, unless:

.210286.4 - 27 - SJC/SB 19 (1) authorized by the court by specific order;

or (b) for a period of not more than sixty days if the person does not have a family or preexisting social relationship with the protected person." SECTION 8.7.

Section 45-5-314 NMSA 1978 (being Laws 1989, SJC/SB 19 Page 19 Chapter 252, Section 14, as amended) is amended to read:

"45-5-314.

ANNUAL REPORT--AUDITS.-- A.

The guardian of an incapacitated person shall file an initial report with the appointing court within ninety days of the guardian's appointment.

Thereafter, the guardian shall file an annual report within thirty days of the anniversary date of the guardian's appointment.

A copy of the report shall also be submitted to the district judge who appointed the guardian or the judge's successor, to the incapacitated person and to the incapacitated person's conservator, if any.

The court shall review this report.

The report shall include information concerning the progress and condition of the incapacitated person, including the incapacitated person's health, medical and dental care, residence, education, employment and habitation;

a report on the manner in which the guardian carried out the guardian's powers and fulfilled the guardian's duties;

and the guardian's opinion regarding the continued need for guardianship.

If the guardian has been provided power pursuant to Paragraph (4) of Subsection B of Section 45-5-312 NMSA 1978, the report shall contain information on financial decisions made by the guardian.

The report may be substantially in the following form:

"STATE OF NEW MEXICO COUNTY OF ____________________ SJC/SB 19 Page 20 ______ JUDICIAL DISTRICT COURT IN THE MATTER OF THE GUARDIANSHIP OF ________________________________________________ CAUSE NO.

__________ an incapacitated adult GUARDIAN'S 90-DAY ____ ANNUAL____ FINAL____ (check one) REPORT ON THE CONDITION AND WELL-BEING OF AN ADULT PROTECTED PERSON Date of Appointment:

________ Pursuant to Section 45-5-314 NMSA 1978, the undersigned duly appointed, qualified and acting guardian of the above-mentioned protected person reports to the court as follows (attach additional sheets, if necessary):

1.

PROTECTED Name___________________________________________ PERSON:

Residential Address____________________________ Facility Name _________________________________ City, State, Zip Code__________________________ Telephone _____________ Date of Birth ________ Name of person primarily responsible at protected person's place of residence:__________________________________________.

2.

GUARDIAN:

Name __________________________________________ Business Name (if any)_________________________ Address _______________________________________ City, State, Zip Code__________________________ SJC/SB 19 Page 21 Telephone ____________ Alternate Telephone # __ Relation to Protected Person___________________ 3.

FINAL REPORTS ONLY (otherwise, go to #4) I am filing a Final Report because of:

___ My resignation ___ Death of the Protected Person ___ Court Order ___ Other (please explain):

__________________________ A.

If because of resignation, Name of successor, if appointed:

___________________________________________________ Address ______________________________________________ City, State, Zip Code_________________________________ B.

If because of Protected Person's death:

(attach copy of death certificate, if available) Date and place of death:______________________________________ Name of personal representative if appointed:_________________ Address ______________________________________________________ City, State, Zip Code_________________________________________ 4.

During the past year or 90 days (if initial report), I have visited the Protected Person ______ times.

The date of my last personal visit was __________________________.

5.

(A) Describe the residence of the Protected Person:

_____ Hospital/medical facility _____Protected Person's home _____ Guardian's home _____Relative's home (explain below) _____ Nursing home _____Boarding/Foster/Group Home SJC/SB 19 Page 22 _____ Other:

________________________________________________________ (B) During the past year or 90 days (if first report), has the Protected Person changed his/her residence? ______ Do you anticipate a change of residence for the protected person in the next year?______ 6.

The name and address of any hospital or other institution (if any) where the Protected Person is now admitted:

______________________________________________________________ _____________________________________________________________.

7.

The Protected Person is under a physician's regular care.

_____Yes _____No Identify the health care providers.

Physician:____________________________________________________ Dentist (if any):_____________________________________________ Mental Health Professional (i.e., psychiatrist, counselor):

______________________________________________________________ Other:________________________________________________________ 8.

(A) During the past year or 90 days (if initial report), the Protected Person's physical health:

Remained the same _____ Primary diagnosis:

___________________________________________ _____improved _____deteriorated (explain)_______________________________________ (B) During the past year or 90 days (if initial report), SJC/SB 19 Page 23 the Protected Person's mental health:

Remained the same _____ Major diagnosis, if any:

______________________________ Improved________deteriorated (explain)__________________ If physical or mental health has deteriorated, please explain:

______________________________________________________________ 9.

Describe any significant hospitalizations or mental or medical events during the past year or 90 days (if initial report):

______________________________________________________________ 10.

List the Protected Person's activities and changes, if any, over the past year or 90 days (if initial report):

Recreational Activities:______________________________________ Educational Activities:_______________________________________ Social Activities:____________________________________________ List Active Friends and/or Relatives:_________________________ Occupational activities:______________________________________ Other:

_______________________________________________________ 11.

Describe briefly any contracts entered into and major decisions made on behalf of the Protected Person during the past year or 90 days (if initial report):

____________________ ______________________________________________________________ 12.

The Protected Person has made the following statements regarding his/her living arrangements and the guardianship over him/her:_________________________________________________ ______________________________________________________________ SJC/SB 19 Page 24 13.

I believe the Protected Person has unmet needs.

_____Yes (explain) _____No ________________________________________________________ If yes, indicate efforts made to meet these needs:____________ ______________________________________________________________ 14.

The Protected Person continues to require the assistance of a guardian:

_____Yes _____No Explain why or why not:_______________________________________ _____________________________________________________________.

15.

The authority given to me by the Court should:

_____remain the same _____be decreased _____be increased Why:

_________________________________________________________ ______________________________________________________________ 16.

Additional information concerning the Protected Person or myself (the guardian) that I wish to share with the Court:

______________________________________________________________ ______________________________________________________________ ______________________________________________________________ 17.

If the court has granted you the authority to make financial decisions on behalf of the Protected Person, then please describe the decisions you have made for the protected person:

_____________________________________________________.

Signature of Guardian:

________________________ Date:

_______ Printed Name:

_______________________________." B.

Any guardian may rely on a qualified health SJC/SB 19 Page 25 care professional's current written report to provide descriptions of the physical and mental conditions required in items 7, 8, 9, 14 and 15 of the annual report as specified in Subsection A of this section.

C.

The guardian may be fined five dollars ($5.00) per day for an overdue annual report.

The fine shall be used to fund the costs of visitors, counsel and functional assessments utilized in conservatorship and guardianship proceedings pursuant to the Uniform Probate Code.

D.

The court shall not waive the requirement of an annual report under any circumstance but may grant an extension of time not to exceed sixty days.

The court may require the filing of more than one report annually.

E.

A guardian of a protected person shall fully comply with the requirements of any audit of an account, inventory, report or property of a protected person." SECTION 8.

e e 17 "45-5-404.

ORIGINAL PETITION FOR APPOINTMENT OF e e n d 18 CONSERVATOR.-- =A. = l ] 19 [A.

Any of the following persons may petition for a l r i 20 the appointment of a conservator:

t e a t (1) the person for whom a conservator is m m 21 e d sought;

r e 22 c e r c 23 (2) any person who is interested in the e a n b 24 estate, affairs or welfare of the person to be protected, u [ including his spouse, parent, guardian or custodian;

or .210286.4 - 28 - SJC/SB 19 (3) any person who would be adversely affected by lack of effective management of the property and affairs of the person to be protected.

B.

The petition shall state the following:

(1) the interest of the petitioner;

(2) the name, age, residence and address of the person for whom a conservator is sought;

(3) the name and address of the guardian, if any, of the person for whom a conservator is sought;

(4) the names and addresses, as far as known or as can be reasonably ascertained, of the persons most closely related by blood or marriage to the person for whom a conservator is sought;

(5) the approximate value and description of the property of the person for whom a conservator is sought, including any compensation, insurance, pension or allowance to e e 17 which the person may be or is entitled;

e e n d 18 (6) the reasons why appointment of a = = l ] 19 conservator is necessary, including but not limited to evidence a l r i 20 of the person's recent behavior that demonstrates gross t e a t mismanagement of his income and resources to the extent that it m m 21 e d has led or is likely to lead in the near future to waste and r e 22 c e r c 23 dissipation of the income and resources;

e a n b 24 (7) the name and address of the person or u [ institution, if any, having the care and custody of the person .210286.4 - 29 - SJC/SB 19 for whom a conservator is sought;

(8) the steps taken to find less restrictive alternatives to the proposed conservatorship;

(9) the name and address of the person whose appointment is sought;

(10) the basis of his priority for appointment;

(11) the names and addresses of any other persons for whom the proposed conservator is a conservator if the proposed conservator is an individual;

and (12) the qualifications of the proposed conservator.] A.

(1) a person interested in the estate, financial affairs or welfare of an individual, including a e e 17 person that would be adversely affected by lack of effective eSJC/SB e19 nPage d26 18 management of property or financial affairs of an individual;

= = l ] 19 or a l r i 20 (2) the guardian for an individual.

t e a t B.

A petition under Subsection A of this section m m 21 e d shall state the petitioner's name, principal residence, current r e 22 c e r c 23 street address, if different, relationship to the alleged e a n b 24 incapacitated person, interest in the appointment, the name and u [ address of any attorney representing the petitioner and, to the .210286.4 - 30 - SJC/SB 19 extent known, the following:

(a) spousespouse, or, if the alleged incapacitated person has none, an adult with whom the alleged incapacitated person hasis sharedin householda responsibilitieslong-term forrelationship moreof thanindefinite sixduration months in which the twelve-monthindividual periodhas beforedemonstrated an actual commitment to the filingalleged incapacitated person similar to the commitment of a spouse and in which the petition;individual and the alleged incapacitated person consider themselves to be responsible for each other's well-being;

(b) adult children or, if none, each SJC/SB 19 Page 27 parent and adult sibling of the alleged incapacitated person or, if none, at least one adult nearest in kinship to the e e 17 alleged incapacitated person who can be found with reasonable e e n d 18 diligence;

and = = l ] 19 (c) adult stepchildren whom the alleged a l r i 20 incapacitated person actively parented during the t e a t stepchildren's minor years and with whom the alleged m m 21 e d incapacitated person had an ongoing relationship during the two r e 22 c e r c 23 years immediately preceding the filing of the petition;

e a n b 24 (3) the name and current address of each of u [ the following, if applicable:

.210286.4 - 31 - SJC/SB 19 (a) a person responsible for the care or custody of the alleged incapacitated person;

(f) the fiduciary appointed for the SJC/SB 19 Page 28 alleged incapacitated person by the federal department of veterans affairs;

e e 17 (g) an agent designated under a power of e e n d 18 attorney for health care in which the alleged incapacitated = = l ] 19 person is identified as the principal;

a l r i 20 (h) an agent designated under a power of t e a t attorney for finances in which the alleged incapacitated person m m 21 e d is identified as the principal;

r e 22 c e r c 23 (i) a person known to have routinely e a n b 24 assisted the alleged incapacitated person with decision making u [ in the six-month period immediately before the filing of the .210286.4 - 32 - SJC/SB 19 petition;

(b) if the petition alleges the alleged incapacitated person is missing, detained or unable to return to the United States, the relevant circumstances, including SJC/SB 19 Page 29 the time and nature of the disappearance or detention and any search or inquiry concerning the alleged incapacitated person's e e 17 whereabouts;

e e n d 18 (c) any less restrictive alternative for = = l ] 19 meeting the alleged incapacitated person's alleged need that a l r i 20 has been considered or implemented;

t e a t (d) if no less restrictive alternatives m m 21 e d have been considered or implemented, the reason it has not been r e 22 c e r c 23 considered or implemented;

and e a n b 24 (e) the reason a less restrictive u [ alternative is insufficient to meet the alleged incapacitated .210286.4 - 33 - SJC/SB 19 person's need;

(10) whether the alleged incapacitated SJC/SB 19 Page 30 person needs an interpreter, translator or other form of support to communicate effectively with the court or understand court e e 17 proceedings;

and e e n d 18 (11) the name and address of an attorney = = l ] 19 representing the petitioner, if any." a l r i 20 SECTION 9.

Section 45-5-405 NMSA 1978 (being Laws 1975, t e a t Chapter 257, Section 5-405, as amended) is amended to read:

m m 21 e d "45-5-405.

NOTICE IN CONSERVATORSHIP PROCEEDINGS.-- rA. e 22 c e r c 23 [A.

In a proceeding for the appointment or removal e a n b 24 of a conservator of an incapacitated person or a person to be u [ protected, other than the appointment of a temporary .210286.4 - 34 - SJC/SB 19 conservator or the temporary suspension of a conservator, notice of hearing and a copy of the petition and any interim orders that may have been entered shall be given to each of the following:

(1) the person to be protected;

and (2) his spouse, parents and adult children, or if there are no adult children, at least one of his closest adult relatives if any can be found.

Notice of hearing shall be given to any person who is serving as the guardian or conservator of the person to be protected or who has primary responsibility for his care.

B.

Notice shall be served personally on the person to be protected and his spouse if the spouse can be found within New Mexico.

Notice to an out-of-state spouse, parent and all other persons, except the person to be protected, shall be given as provided in Section 45-1-401 NMSA 1978.

e e 17 C.

At least fourteen days' notice shall be given e e n d 18 before the hearing takes place.

The notice should be in plain = = l ] 19 language and large type and shall include the following a l r i 20 information and shall be substantially in the following form:

t e a t "NOTICE m m 21 e d TO:

(name and address of person receiving notice) r e 22 c e r c 23 On (date of hearing) at (time of hearing) in (place of e a n b 24 hearing) at (city), New Mexico, the (name and address of court) u [ will hold a hearing to determine whether a conservator should .210286.4 - 35 - SJC/SB 19 be appointed for (name of the person to be protected).

The purpose of this proceeding is to appoint a conservator.

A copy of the petition requesting appointment of a conservator is attached to this notice.

At the hearing, the court will determine whether (name of person to be protected) needs to be protected by a conservator under New Mexico law.

If the court finds that (name of the person to be protected) is in need of a conservator, the court at the hearing shall also consider whether (name of proposed conservator, if any) should be appointed as conservator of (name of person to be protected).

The court may, in its discretion, appoint some other qualified person as conservator.

The court may also, in its discretion, limit the powers and duties of the conservator to allow (name of person to be protected) to retain control over certain activities.

e e 17 (Name of person to be protected) shall attend the hearing e e n d 18 and be represented by an attorney.

The petition may be heard = = l ] 19 and determined in the absence of (name of person to be a l r i 20 protected) if the court determines that the presence of (name t e a t of person to be protected) is not required.

If (name of person m m 21 e d to be protected) attends the hearing and is not represented by r e 22 c e r c 23 an attorney, the court shall appoint an attorney to represent e a n b 24 the person to be protected.

u [ ___________________________ .210286.4 - 36 - SJC/SB 19 (signature of petitioner)".

D.

Notice of a petition for appointment of a conservator and of any subsequent hearing shall be given to any interested person who has filed a request for notice under Section 45-5-406 NMSA 1978 and to such other persons as the court may direct.

Except as otherwise provided in Subsection A of this section, notice shall be given in accordance with Section 45-1-401 NMSA 1978.] A.

If the alleged incapacitated person's whereabouts are unknown or personal service cannot be made, service on the alleged incapacitated e e 17 person shall be made as provided in Section 45-1-401 NMSA 1978.

e e n d 18 The notice shall inform the alleged incapacitated person of the = = l ] 19 alleged incapacitated person's rights at the hearing and the a l r i 20 right to attend the hearing.

The notice also shall include a t e a t description of the nature, purpose and consequences of granting m m 21 e d the petition.

The court shall not grant a petition for r e 22 c e r c 23 appointment of a conservator if notice substantially complying e a n b 24 with this subsection is not served on the alleged incapacitated u [ person.

.210286.4 - 37 - SJC/SB 19 Page 31 C.

and (3) any other person the court determines." e e 17 SECTION 10.

Section 45-5-40745-5-405.1 NMSA 1978 (being Laws 1975,1993, e e n d 18 Chapter 257,301, Section 5-407,26) as amended) is amended to read:

="45-5-405.1. = l ] 19 "45-5-407.

PROCEDUREPROTECTIVE FORARRANGEMENTS COURTAND APPOINTMENTSINGLE OFTRANSACTIONS AAUTHORIZED.-- a l r i 20 CONSERVATOR.-- t e a t A.

UponIf receiptafter ofnotice ain petitionaccordance forwith appointmentSection of45-5-405 NMSA 1978 to all interested persons, as defined in Section 45-1-201 NMSA 1978, and after hearing, it is established that a mbasis mexists 21as edescribed din conservatorSJC/SB or19 otherPage protective32 orderSection because45-5-401 ofNMSA minority,1978 for affecting the restate eand 22financial caffairs eof ra cperson, 23the courtcourt, shallwithout setappointing a dateconservator, formay hearingissue onan theorder matterspursuant allegedto inSubsection eB of this section for a nprotective barrangement 24instead of conservatorship for the petition.person.

IfUnless at any time in the proceedingperson thealready courthas findsan uattorney [of the minorperson's isown orchoice, maythe becourt inadequatelyshall represented, it may appoint .210286.4 - 38 - SJC/SB 19 an attorney to represent the minor,person givingat consideration to the choicehearing. of the minor if the minor is fourteen years of age or older.

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 SJC/SB 19 Page 33 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 SJC/SB 19 Page 34 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." SECTION 11.

Section 45-5-407 NMSA 1978 (being Laws 1975, Chapter 257, Section 5-407, as amended) is amended to read:

"45-5-407.

PROCEDURE FOR COURT APPOINTMENT OF A CONSERVATOR.-- A.

Upon receipt of a petition for appointment of a conservator or other protective order because of minority, the court shall set a date for hearing on the matters alleged in the petition.

If at any time in the proceeding the court SJC/SB 19 Page 35 finds the minor is or may be inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the choice of the minor if the minor is fourteen years of age or older.

Unless the person to be protected is already represented by an attorney of [his ] the person's own choice, the court shall appoint an attorney to represent [him ] the person to be protected in the proceeding.

[TheThe court-court-appointed appointed attorney shall have the duties of a guardian ad litem as set forth in Section 45-5-404.1 NMSA 1978.]1978. C.

IfC. the petition is for the appointment of a conservator for an incapacitated person, the person to be protected shall be examined by a qualified health care professional appointed by the court who shall submit a report e e 17 in writing to the court.

If the petition is for the appointment of a conservator for an incapacitated person, the person to be protected shall be examined by a qualified health care professional appointed by the court who shall submit a report in writing to the court.

e e n d 18 (1) describe the nature and degree of the = = l ] 19 person's incapacity, if any, and the level of the intellectual, a l r i 20 developmental and social functioning of the person to be t e a t protected;

and m m 21 e d (2) contain observations, with supporting r e 22 c e r c 23 data, regarding the ability of the person to be protected to eSJC/SB a19 nPage b36 24 manage [his] the person's estate or financial affairs.

u [ D.

The court shall also appoint a visitor who shall .210286.4 - 39 - SJC/SB 19 interview the person seeking appointment as conservator and the person to be protected.

(1) those aspects of [his ] the person's financial affairs that the person to be protected can manage without supervision or assistance;

(2) those aspects of [his ] the person's financial affairs that the person to be protected could manage with the supervision or assistance of support services and benefits;

and (3) those aspects of [his ] the person's e e 17 financial affairs that the person to be protected is unable to e e n d 18 manage even with the supervision or assistance of support = = l ] 19 services and benefits.

a l r i 20 Unless otherwise ordered by the court, the appointment of t e a t the visitor terminates and the visitor is discharged from [his ] m m 21 e d duties upon entry of [the ] an order appointing [the] a rconservator eand 22SJC/SB c19 ePage r37 c 23 conservator and acceptance of the appointment by the e a n b 24 conservator.

u [ E.

The person to be protected shall be present at .210286.4 - 40 - SJC/SB 19 the hearing on the issues raised by the petition and any response to the petition, unless the court determines it is not in the best interest of the person for whom a conservator is sought to be present because of a threat to the health or safety of the person for whom a conservator is sought or others as determined by the court.

The court upon request or its own motion may conduct hearings at the location of the person to be protected if [he ] the person is unable to be present in court.

and (2) ascertain [his ] the person's capacity to e e 17 manage [his] the person's financial affairs.

e e n d 18 H.

If it is determined that the person to be = = l ] 19 protected possesses the capacity to manage [his ] the person's a l r i 20 estate or financial affairs, or both, the court shall dismiss t e a t the petition.

m m 21 e d I.

Alternatively, the court may appoint a full rSJC/SB e19 22Page c38 e r c 23 conservator, as requested in the petition, or a limited e a n b 24 conservator and confer specific powers of conservatorship after u [ finding in the record based on clear and convincing evidence .210286.4 - 41 - SJC/SB 19 that:

After hearing, upon finding that a basis for the e e 17 appointment of a conservator has been established, the court e e n d 18 shall make an appointment of a conservator.

The court shall = = l ] 19 appoint a limited conservator if it determines that the a l r i 20 incapacitated person is able to manage some but not all aspects t e a t of [his] the incapacitated person's estate and financial mSJC/SB m19 21Page e39 d affairs.

The court shall specify those powers that the limited r e 22 c e r c 23 conservator shall have and may further restrict each power so e a n b 24 as to permit the incapacitated person to care for [his ] the u [ incapacitated person's estate and financial affairs .210286.4 - 42 - SJC/SB 19 commensurate with [his ] the incapacitated person's ability to do so.

The conservator shall exercise [his ] supervisory powers over the estate and financial affairs of the incapacitated person in a manner that is the least restrictive form of intervention consistent with the order of the court.

[M.M.

A record of the proceedings shall be made if requested by the person to be protected, his attorney or when ordered by the court.

Records, reports and evidence submitted e e 17 to the court or recorded by the court shall be confidential, e e n d 18 except that the public shall be granted access to the following = = l ] 19 information:

a l r i 20 (1) docket entries;

t e a t (2) date of the proceeding, appointment and m m 21 e d termination;

r e 22 c e r c 23 (3) duration of the conservatorship and e a n b 24 whether limited or unlimited;

u [ (4) for a limited conservatorship, the nature .210286.4 - 43 - SJC/SB 19 of the limitation;

and (5) the name and other information necessary to identify the alleged incapacitated person.] M.

SJC/SB 19 Page 40 (a) the petition for conservatorship is dismissed;

An alleged incapacitated person or protected person subject to a proceeding for a conservatorship, whether e e 17 or not a conservator is appointed, an attorney designated by e e n d 18 the alleged incapacitated person or protected person and a = = l ] 19 person entitled to notice may access court records of the a l r i 20 proceeding and resulting conservatorship.

A person not t e a t otherwise entitled to access to court records under this m m 21 e d section for good cause may petition the court for access to r e 22 c e r c 23 court records of the conservatorship.

The court shall grant e a n b 24 access if access is in the best interest of the alleged u [ incapacitated person or protected person subject to .210286.4 - 44 - SJC/SB 19 conservatorship or furthers the public interest and does not endanger the welfare or financial interests of the alleged incapacitated person or individual.

(3) the petitioner, guardian ad litem, SJC/SB 19 Page 41 visitor and an attorney of record, for purposes of the proceeding;

and e e 17 (5) any other person if it is in the public einterest, eas ndetermined dby 18the interestcourt, or for a purpose the court orders for good cause.

= = l ] 19 [N.] P.

Notwithstanding the provisions of a l r i 20 Subsection M of this section, any disclosure of information t e a t shall not include any diagnostic information, treatment m m 21 e d information or other medical or psychological information.

r e 22 c e r c 23 [O.] Q.

The issue of whether a conservator shall be e a n b 24 appointed shall be determined by the court at a closed hearing u [ unless the person to be protected requests otherwise.

.210286.4 - 45 - SJC/SB 19 [P.] R.

Upon request of the petitioner or person to be protected, the court shall schedule a jury trial.

[Q.] S.

Upon entry of an order appointing a conservator, a copy of the order shall be furnished to the person for whom the conservator was appointed and that person's counsel.

The order shall contain the name and address of the conservator as well as notice to the person for whom the conservator was appointed of that person's right to appeal the appointment and of that person's right to seek alteration or termination of the conservatorship at any time." SECTION 11.

A new section of Part 4 of Article 5 of the Uniform Probate Code, Section 45-5-409.1 NMSA 1978, is enacted to read:

"45-5-409.1.

[NEW MATERIAL ] CONSERVATOR'S REPORT AND ACCOUNTING--NOTICE AND HEARING--WAIVER OF LIABILITY.-- A.

Notice of the filing under this section of a e e 17 conservator's report, together with a copy of the report, shall e e n d 18 be provided to the individual under conservatorship, a person = = l ] 19 entitled to notice under Section 45-5-405 NMSA 1978 or a a l r i 20 subsequent order and any other person the court determines.

t e a t The notice and report shall be given not later than fourteen m m 21 e d days after filing.

r e 22 c e r c 23 B.

If the court determines that there is reason to e a n b 24 believe a conservator has not complied with the conservator's u [ duties or the conservatorship should not continue, the court:

.210286.4 - 46 - SJC/SB 19 (1) shall notify the individual under conservatorship, the conservator, any other person entitled to notice under Section 45-5-405 NMSA 1978 or a subsequent order and any other person the court determines;

(2) may require additional information from the conservator;

(3) may appoint a visitor to interview the individual subject to conservatorship or conservator or investigate any matter involving the conservatorship;

and (4) consistent with Section 45-5-416 NMSA 1978, may hold a hearing to consider removal of the conservator, termination of the conservatorship or a change in the powers granted to the conservator or terms of the conservatorship.

C.

If the court has reason to believe fees requested by a conservator are not reasonable, the court shall e e 17 hold a hearing to determine whether to adjust the requested e e n d 18 fees and give notice of the hearing to the individual under = = l ] 19 conservatorship, a person entitled to notice under Section a l r i 20 45-5-405 NMSA 1978 or under a subsequent order and any other t e a t person the court determines.

m m 21 e d D.

A conservator may petition the court for r e 22 c e r c 23 approval of a report filed under this section.

The conservator e a n b 24 shall send a copy of the petition to the adult subject to u [ conservatorship and to a person entitled to notice pursuant to .210286.4 - 47 - SJC/SB 19 Subsection A of this section and shall file proof of the sending of the petition with the court.

The court shall not approve the report until the later of thirty days after its filing and fourteen days after the petition was sent to the persons entitled to notice.

The court may then approve the report with or without holding a hearing as the court determines is appropriate unless a hearing is requested as provided in this subsection.

If the conservator, the person under conservatorship or a person entitled to notice pursuant to Subsection A of this section requests a hearing in connection with the report, the court after review shall not approve the report without:

(1) notice to the individual subject to conservatorship, a person entitled to notice under Section 45-5-405 NMSA 1978 or under a subsequent order and any other person the court determines;

and e e 17 (2) a hearing.

e e n d 18 E.

An order, after timely notice and hearing, = = l ] 19 approving an interim report of a conservator filed under this a l r i 20 section adjudicates liabilities concerning a matter adequately t e a t disclosed in the report as to a person given timely notice of m m 21 e d the report or accounting and the hearing.

r e 22 c e r c 23 F.

An order, after timely notice and hearing, e a n b 24 approving a final report filed under this section discharges u [ the conservator from all liabilities, claims and causes of .210286.4 - 48 - SJC/SB 19 action by a person given notice of the report and the hearing as to a matter adequately disclosed in the report.

G.

No person shall request, procure or receive a release or waiver of liability, however denominated, of a conservator or an agent or affiliate of a conservator:

(1) concerning any matter not adequately disclosed in a report or accounting filed pursuant to Subsection E or F of this section;

or (2) from a person who was not given, in a timely manner, a copy of the report or accounting and a notice of the hearing pursuant to Subsection E or F of this section.

H.

A release or waiver of liability that is requested, procured or received contrary to the provisions of Subsection G of this section is void." SECTION 12.

Section 45-5-411 NMSA 1978 (being Laws 1975, Chapter 257, Section 5-411) is amended to read:

e e 17 "45-5-411.

BOND AND TERMS--REQUIREMENTS OF BONDS .-- e e n d 18 [A.

The court may require a conservator to furnish = = l ] 19 a bond conditioned upon faithful discharge of all duties of the a l r i 20 trust according to law, with sureties as it shall specify t e a t specifies.

Unless otherwise directed, the bond shall be in the m m 21 e d amount of the total value of the property of the estate in his r e 22 c e r c 23 control plus one year's estimated income less the value of e a n b 24 securities deposited under arrangements requiring an order of u [ the court for their removal less the value of property which .210286.4 - 49 - SJC/SB 19 may not be sold or conveyed without an order of the court.

The court, in lieu of sureties on a bond, may accept other security for the performance of the bond.

B.

If the veterans administration is paying or planning to pay benefits to a person to be protected, the court may, upon the request of the veterans administration, require a bond conditioned upon faithful discharge of all duties of the trust according to law, with sureties as it shall specify.] A.

Except as otherwise provided in Subsection C of this section, the court shall require a conservator to furnish a bond with a surety the court specifies, or require an alternative asset-protection arrangement, conditioned on faithful discharge of all duties of the conservator.

The court may waive the requirement only if the court finds that a bond or other asset-protection arrangement is not necessary to protect the interests of the individual subject to e e 17 conservatorship.

Except as otherwise provided in Subsection C e e n d 18 of this section, the court shall not waive the requirement if = = l ] 19 the conservator is in the business of serving as a conservator a l r i 20 and is being paid for the conservator's service.

t e a t B.

Unless the court directs otherwise, the bond m m 21 e d required under this section shall be in the amount of the r e 22 c e r c 23 aggregate capital value of the conservatorship estate, plus one e a n b 24 year's estimated income, less the value of property deposited u [ under an arrangement requiring a court order for its removal .210286.4 - 50 - SJC/SB 19 and real property the conservator lacks power to sell or convey without specific court authorization.

The court, in place of surety on a bond, may accept collateral for the performance of the bond, including a pledge of securities or a mortgage of real property.

C.

A financial institution that possesses and is exercising general trust powers in New Mexico is not required to give a bond under this section.

As used in this subsection, "financial institution" means a state- or federally chartered, federally insured depository bank or trust company.

D.

The following rules apply to the bond required under this section:

(1) except as otherwise provided by the bond, the surety and the conservator are jointly and severally liable;

(2) by executing a bond provided by a e e 17 conservator, the surety submits to the personal jurisdiction of e e n d 18 the court that issued letters of conservatorship in a = = l ] 19 proceeding relating to the duties of the conservator in which a l r i 20 the surety is named as a party.

Notice of the proceeding shall t e a t be given to the surety;

m m 21 e d (3) on petition of a successor conservator or r e 22 c e r c 23 person affected by a breach of the obligation of the bond, a e a n b 24 proceeding may be brought against the surety for breach of the u [ obligation of the bond;

and .210286.4 - 51 - SJC/SB 19 (4) a proceeding against the bond may be brought until liability under the bond is exhausted.

E.

If a bond under this section is not renewed by the conservator, the surety or sureties immediately shall give notice to the court and the protected person subject to conservatorship." SECTION 13.

A new section of a new Part 7 of Article 5 of the Uniform Probate Code, Section 45-5-701 NMSA 1978, is enacted to read:

"45-5-701.

[NEW MATERIAL ] PETITION FOR PROTECTIVE ARRANGEMENT.--A petition for a protective arrangement instead of guardianship or conservatorship shall state the petitioner's name, principal residence, current street address, if different, relationship to the protected person, interest in the protective arrangement, the name and address of any attorney representing the petitioner and, to the extent known, e e 17 the following:

e e n d 18 A.

the protected person's name, age, principal = = l ] 19 residence, current street address, if different, and, if a l r i 20 different, address of the dwelling in which it is proposed the t e a t protected person will reside if the petition is granted;

m m 21 e d B.

the name and address of the protected person's:

r e 22 c e r c 23 (1) spouse or, if the protected person has e a n b 24 none, an adult with whom the protected person has shared u [ household responsibilities for more than six months in the .210286.4 - 52 - SJC/SB 19 twelve-month period before the filing of the petition;

(2) adult children or, if none, each parent and adult sibling of the protected person, or, if none, at least one adult nearest in kinship to the protected person who can be found with reasonable diligence;

and (3) adult stepchildren whom the protected person actively parented during the stepchildren's minor years and with whom the protected person had an ongoing relationship in the two-year period immediately before the filing of the petition;

C.

the name and current address of each of the following, if applicable:

(1) a person responsible for the care or custody of the protected person;

(2) any attorney currently representing the protected person;

e e 17 (3) the representative payee appointed by the e e n d 18 federal social security administration for the protected = = l ] 19 person;