A. Every conservator shall file an annual report and account with the appointing court within thirty days of the anniversary date of the conservator's appointment, upon the conservator's resignation or removal or upon termination of the conservatorship. A copy of the annual report and account shall also be submitted to the district judge who appointed the conservator or the conservator's successor, to the incapacitated person and to the incapacitated person's guardian, if any. The report shall include information concerning the progress and condition of the person under conservatorship, a report on the manner in which the conservator carried out the conservator's powers and fulfilled the conservator's duties and the conservator's opinion regarding the continued need for conservatorship. Only reports that substantially comply with forms approved by the supreme court shall be accepted by the court as fulfilling the requirements of this section.
B. Any conservator may rely on a qualified health care professional's current written report to provide descriptions of the physical and mental conditions required in the report provided for in Subsection A of this section.
C. The court shall not waive the requirement of an annual report and account under any circumstance, but may grant an extension of time. The court may require the filing of more than one report and account annually.
D. The conservator may be fined twenty-five dollars ($25.00) per day for an overdue interim or annual report and account. The fine shall be paid to the current school fund.
E. In connection with an account, the court may require a conservator to submit to a physical check of the property in the conservator's control, to be made in any manner the court may order.
F. In any case in which property consists in whole or in part of benefits paid by the United States department of veterans affairs to the conservator or the conservator's predecessor for the benefit of the protected person, the department office that has jurisdiction over the area is entitled to a copy of any report and account filed under Chapter 45, Article 5 NMSA 1978.
G. A conservator shall fully comply with the requirements of any audit of an account, inventory, report or property of a protected person.
H. The court shall forward all reports submitted under Section 45-5-409 NMSA 1978 to the office of the state auditor for review within five business days of receipt of the report. The office of the state auditor shall review the report filed by the conservator and decide whether a full audit is necessary. The office of the state auditor shall submit, within fifteen business days of receiving a report from the court, either a letter of review declining to conduct a full audit or a letter of acceptance to conduct an audit. If the office of the state auditor decides to conduct an audit of the contents in the report, an audit report shall be filed with the court within ninety calendar days of filing an acceptance for an audit. The state auditor shall have the authority to subpoena any documents, records or statements from any individual, company, entity or financial institution necessary to conduct an audit of the contents of a conservator's report. The office of the state auditor shall be available to testify at any court hearing concerning the results of the audit report.
History: 1953 Comp., enacted by Laws 1975, ch. 257, § 5-409; repealed and reenacted by Laws 1989, ch. 252, § 22; 1993, ch. 301, § 19; 2018, ch. 10, § 12; 2019, ch. 228, § 10; 2021, ch. 128, § 10.
Repeals and reenactments. — Laws 1989, ch. 252, § 22, repealed former 45-5-409 NMSA 1978, as enacted by Laws 1975, ch. 257, § 5-409, relating to protective arrangements and single transactions authorized, and enacted a new section, effective June 16, 1989.
The 2021 amendment, effective July 1, 2021, required the appointing court to forward all conservator reports submitted pursuant to this section to the office of the state auditor for review, required the office of the state auditor to review the conservator reports to determine whether a full audit is necessary, to notify the court of its determination, and, if the state auditor decides to conduct an audit, to file an audit report with the court within ninety days of filing an acceptance for an audit, provided the office of the state auditor with subpoena power, and required the office of the state auditor to be available to testify at any court hearing concerning the results of the audit report; and added Subsection H.
The 2019 amendment, effective July 1, 2019, revised provisions related to the form of a conservator's report on the progress and condition of a person under conservatorship; in Subsection A, deleted the remainder of the subsection, which provided the template for a conservator's report on the progress and condition of a person under conservatorship, and added "Only reports that substantially comply with forms approved by the supreme court shall be accepted by the court as fulfilling the requirements of this section"; in Subsection B, after "conditions required in", deleted "items 6, 7 and 10 of the annual report and account as specified" and added "the report provided for"; and in Subsection D, after "may be fined", deleted "five dollars ($5.00)" and added "twenty-five dollars ($25.00)", after "overdue", added "interim or", and after "fine shall be", deleted "used to fund the costs of visitors, counsel and functional assessments utilized in conservatorship and guardianship proceedings pursuant to the Uniform Probate Code" and added "paid to the current school fund".
The 2018 amendment, effective July 1, 2018, revised the annual report form that must be filed by every conservator, and required conservators to comply with the requirements of any audit of an account, inventory, report or property of a protected person; in the catchline, added "audits"; in the introductory paragraph of the form, changed "45-5-407" to "45-5-409", in Paragraph 9 of the form, after "under conservatorship", added the remainder of the paragraph; in Subsection D, after "pursuant to the", added "Uniform"; in Subsection F, after "paid by the", added "United States department of", after "veterans", deleted "administration" and added "affairs", and after "protected person, the", deleted "veterans administration" and added "department"; and added Subsection G.
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.
The 1993 amendment, effective July 1, 1993, rewrote this section to the extent that a detailed comparison is impracticable.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 39 Am. Jur. 2d Guardian and Ward §§ 162 to 165.
39 C.J.S. Guardian and Ward § 145.
Structure New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 5 - Protection of Persons Under Disability and Their Property
Part 4 - PROTECTION OF PROPERTY OF PERSONS UNDER DISABILITY AND MINORS
Section 45-5-401 - Conservatorship proceedings.
Section 45-5-402 - Protective proceedings; jurisdiction of affairs of protected persons.
Section 45-5-402.1 - Permissible court orders.
Section 45-5-404 - Original petition for appointment of conservator.
Section 45-5-404.1 - Duties of guardian ad litem.
Section 45-5-405 - Notice in conservatorship proceedings.
Section 45-5-405.1 - Protective arrangements and single transactions authorized.
Section 45-5-406 - Guardianship and protective proceedings; request for notice; interested person.
Section 45-5-407 - Procedure for court appointment of a conservator.
Section 45-5-408 - Temporary conservators.
Section 45-5-409 - Annual report and account; audits.
Section 45-5-409.1 - Repealed.
Section 45-5-410 - Who may be appointed conservator; priorities.
Section 45-5-411 - Bond and terms; requirements of bonds.
Section 45-5-413 - Acceptance of appointment; consent to jurisdiction.
Section 45-5-414 - Compensation and expenses.
Section 45-5-415 - Death, substitution, review and termination of conservatorship.
Section 45-5-416 - Petitions for orders subsequent to appointment.
Section 45-5-417 - General duty of conservator.
Section 45-5-418 - Inventory and records.
Section 45-5-420 - Conservators; title by appointment.
Section 45-5-421 - Recording of conservator's letters.
Section 45-5-421.1 - Letters of conservatorship.
Section 45-5-423 - Persons dealing with conservators; protection.
Section 45-5-424 - Powers of conservator in administration.
Section 45-5-425 - Distributive duties and powers of conservator.
Section 45-5-426 - Consent to conservatorship; applicable laws.
Section 45-5-427 - Preservation of estate plan.
Section 45-5-428 - Claims against protected person; enforcement.
Section 45-5-429 - Individual liability of conservator.
Section 45-5-430 - Termination of proceeding.
Section 45-5-434 - Registration of guardianship orders.