SENATE BILL 112

51st legislature - STATE OF NEW MEXICO - first session, 2013

INTRODUCED BY

Gerald Ortiz y Pino

AN ACT

RELATING TO PROBATE; AMENDING AND ENACTING SECTIONS OF THE UNIFORM PROBATE CODE TO PROVIDE FOR THE CONTINUANCE OF CERTAIN GUARDIANSHIP AND CONSERVATORSHIP POWERS AFTER THE DEATH OF A PROTECTED PERSON.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 45-5-306 NMSA 1978 (being Laws 1975, Chapter 257, Section 5-306, as amended) is amended to read:

     "45-5-306. DEATH OF PROTECTED PERSON [OR GUARDIAN--INCAPACITY OF GUARDIAN].--

          A. Except as provided in Subsection B of this section, the authority and responsibility of a guardian for an incapacitated person terminates upon the death of the guardian or protected person, the determination of incapacity of the guardian or upon removal or resignation as provided in Section 45-5-307 NMSA 1978. Upon the death of the protected person, the guardian shall submit notice to the appointing court and to any relatives of the protected person known to the guardian. Testamentary appointment under an informally probated will terminates if the will is later denied probate in a formal proceeding. Termination does not affect the guardian's liability for prior acts nor the guardian's obligation to account for funds and assets of the guardian's protected person.

          B. In cases where no conservator has been appointed, the following powers of a guardian shall remain for up to one year after the death of the protected person, or until the appointment of a personal representative, and shall be exercised in accordance with the preferences of the protected person if known to the guardian:

                (1) the power to arrange and pay for a funeral for or to consent to the cremation of the deceased protected person;

                (2) the power to request and receive medical, financial or other records of the protected person;

                (3) the power to request an autopsy of the deceased protected person and to obtain its results;

                (4) the power to make and file an accounting of the protected person's financial affairs; and

                (5) any power incidental to the closing of and the accounting for the guardianship, which actions shall be fully reported to the appointing court.

          C. The provisions of Subsection B of this section shall not apply when a protected person has in place at the time of death a will or trust that is valid pursuant to the provisions of the Uniform Probate Code.

          D. As used in this section, "relative" means an individual related to a protected person as a spouse, domestic partner, parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin or any person denoted by the prefix "grand" or "great" by reason of affinity or consanguinity."

     SECTION 2. A new section of the Uniform Probate Code is enacted to read:

     "[NEW MATERIAL] CONSERVATORSHIPS--DEATH OF PROTECTED PERSON.--

          A. The following powers of a conservator shall remain for up to one year after the death of the protected person, or until the appointment of a personal representative, and shall be exercised in accordance with the preferences of the protected person if known to the conservator:

                (1) the power to arrange and pay for a funeral for or to consent to the cremation of the deceased protected person;

                (2) the power to request and receive medical, financial or other records of the protected person;

                (3) the power to request an autopsy of the deceased protected person and to obtain its results;

                (4) the power to make and file an accounting of the protected person's financial affairs; and

                (5) any power incidental to the closing of and the accounting for the conservatorship, which actions shall be fully reported to the appointing court.

          B. The provisions of Subsection A of this section shall not apply when a protected person has in place at the time of death a will or trust that is valid pursuant to the provisions of the Uniform Probate Code.

          C. As used in this section, "relative" means an individual related to a protected person as a spouse, domestic partner, parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin or any person denoted by the prefix "grand" or "great" by reason of affinity or consanguinity."

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