Q : What is a conservator?
A : A conservator is a person or organization appointed by a court pursuant to the Probate Code with authority to manage the property and/or financial affairs for an incapacitated adult.
Q : What is meant by "incapacitated adult?"
A : An incapacitated adult is an individual, 18 years of age or older, who lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his or her care and safety. Incapacity may be a result of functional impairment due to developmental disability, mental illness, physical illness or disability, chronic drug use, traumatic brain injury, Alzheimer's (or other types of dementia), or other causes.
Q : Who can be a conservator?
A : Any adult or agency found to be qualified by the judge may be appointed as guardian of an incapacitated person, although preference is given to family members.
Q : If more than one person would like to be conservator, how does the court decide?
A : According to the New Mexico Probate Code, priority is given in the following order; however, the court will select the person it considers best qualified and most appropriate as conservator for the incapacitated person:
a. A guardian or other court-appointed fiduciary;
b. Any person nominated by the incapacitated person to serve as conservator prior to his or her incapacity, such as in a power of attorney or trust document;
c. The incapacitated person's spouse;
d. An adult child of the incapacitated person;
e. The incapacitated person's parent, or someone nominated by the parent in a will or other document;
f. Any relative of the incapacitated person with whom he or she has resided for more than six months;
g. A person nominated by the incapacitated person's caregiver or someone paying benefits to him; or
h. Any other concerned party.
Q : How does one go about setting up a conservatorship?
A : The procedure is similar to establishing a guardianship. For full details, see Initiating the Guardianship Process.
Q : Will the alleged incapacitated person be at the court hearing?
A : He or she must be present unless the court determines that it is not in their best interest to be present because of a health or safety concern for them or for others.
Q : Are there any alternatives to a conservatorship?
A : Yes. For details see Alternatives to Guardianship.
Q : What are the powers, duties and responsibilities of a conservator?
A : The conservator's powers are set out in full in the Probate Code. Generally, the conservator has decision-making authority with regard to the property and finances of the incapacitated person. The conservator collects any monies due and pays outstanding bills. They are also required to submit a detailed annual accounting to the court. In exercising this authority, the conservator shall take into account the estate plan of the protected person, including his or her will, revocable trust, and any contractual, payable on death, or joint ownership arrangement. The conservator will also exercise his or her powers in a manner that is least restrictive of the incapacitated person's personal freedom and that preserves his or her human and civil rights;
Q : Is the conservator financially responsible for the alleged incapacitated person?
A : No. The conservator merely manages their property and finances.
Q : Is a conservator held liable for his or her actions as a conservator?
A : No, the conservator is not liable on contracts entered into as conservator unless he or she fails to reveal his status as conservator and identify the incapacitated person in the contract. The conservator is also liable for obligations arising from ownership and control of property (such as keeping current on taxes and insurance) or for negligence or unethical activity.
Q : Can a conservator be removed as conservator for good reason?
A : Yes. The conservator can be held liable for his or her own negligence or for unethical behavior. The incapacitated person or any other person can petition the court to schedule a hearing to discuss removal of a conservator and appointment of another.
Q : Can a conservatorship be revoked?
A : Only the court can terminate a conservatorship and restore a ward to full legal capacity. If a person who has been found by the court to be incapacitated wants to request a change or termination of conservatorship, they can write a letter to the judge and that will trigger a hearing on the matter.
Q : What is a temporary conservator?
A : A conservator that is appointed pending a full hearing on the conservatorship petition in cases where an adherence to normal court procedures would cause immediate and irreparable harm to the alleged incapacitated person and/or their property. Sometimes a temporary conservator is used when the incapacity is expected to be temporary. Such an appointment is limited to 60 days but may, upon court order, be extended for not more than 30 more days. The temporary order may also specify powers granted to the temporary conservator in order to prevent the threatened harm.