A. When a petition for conservatorship has been filed, but adherence to the procedures set out in Section 45-5-407 NMSA 1978 would cause serious, immediate and irreparable harm to the alleged incapacitated person's or minor's estate or financial interests, or both, the court may appoint a temporary conservator prior to the final hearing and decision on the petition, subject to the requirements of this section. B. Upon separate motion by the petitioner, the court shall schedule and hold a hearing on the appointment of a temporary conservator no later than ten business days from the date the motion is filed and appoint a guardian ad litem for the alleged incapacitated person. The guardian ad litem shall file a report no later than two days prior to the hearing. The report shall identify and present all available less restrictive alternatives to conservatorship and include those items found in Paragraphs (1) and (2) of Subsection A of Section 45-5-404.1 NMSA 1978. Notice of the hearing shall be provided as set out in Section 45-5-405 NMSA 1978. C. Upon a finding that serious, immediate and irreparable harm to the alleged incapacitated person's estate and financial interests would result during the pendency of petition, the court shall appoint a temporary conservator and shall specify the temporary conservator's powers in order to prevent serious, immediate and irreparable harm to the alleged incapacitated person's property. The duration of the temporary conservatorship shall not exceed thirty days. However, if after a hearing in which there is a showing of good cause, the court may extend the temporary conservatorship for no more than an additional sixty days. D. A temporary conservator may be appointed without notice to the alleged incapacitated person and to the alleged incapacitated person's attorney only if it clearly appears from specific facts shown by affidavit or sworn testimony that serious, immediate and irreparable harm will result to the alleged incapacitated person's estate or financial interests before a ten-day hearing on the appointment of a temporary conservator can be held. If a temporary conservator is appointed without notice to the alleged incapacitated person and the alleged incapacitated person's attorney, the court shall schedule and hold a hearing no later than ten business days from the date the motion for temporary conservator is filed to determine whether the temporary conservatorship should continue and, if so, to address the continued authority of the temporary conservator. The petitioner shall have the alleged incapacitated person and the alleged incapacitated person's attorney served personally within twenty-four hours of the appointment of a temporary conservator as provided in Subsection B of Section 45-5-405 NMSA 1978. The alleged incapacitated person, the alleged incapacitated person's counsel or any interested person may appear and move dissolution or modification of the court's order, and, in that event, the court shall proceed to hear and determine such motion at the initial ten-day hearing or no later than ten business days from the date the motion is made, whichever comes first. E. A temporary conservator is entitled to the care and custody of the alleged incapacitated person's estate and financial interests, but a temporary conservator may not sell or dispose of any property belonging to the alleged incapacitated person, or make a change to the housing or other placement of the alleged incapacitated person, without specific authorization from the court. A temporary conservator may be removed by the court at any time. A temporary conservator shall file an initial written report with the court within fifteen days of appointment by completing the conservator's inventory, as approved by the supreme court. A temporary conservator shall file a final written report with the court by completing the conservator's report, as approved by the supreme court, within fifteen days of the termination of the temporary conservatorship or as otherwise ordered by the court. In all other respects, the provisions of the Uniform Probate Code [Chapter 45 NMSA 1978] concerning conservators apply to temporary conservators. F. Appointment of a temporary conservator shall have the temporary effect of limiting the legal rights of the alleged incapacitated person as specified in the court order. Appointment of a temporary conservator shall not be evidence of incapacity. History: 1978 Comp., § 45-5-408, enacted by Laws 1989, ch. 252, § 21; 1993, ch. 301, § 18; 2022, ch. 36, § 2. Repeals and reenactments. — Laws 1989, ch. 252, § 21, repealed former 45-5-408 NMSA 1978, as enacted by Laws 1975, ch. 257, § 5-408, relating to permissible court orders, and enacted a new section, effective June 16, 1989. The 2022 amendment, effective July 1, 2022, revised the procedures for the appointment of temporary conservators, and clarified certain reporting requirements; in Subsection A, after "When a petition for", deleted "appointment of a conservator" and added "conservatorship", after "set out in", deleted "this section" and added "Section 45-5-407 NMSA 1978", after "irreparable harm to the", added "alleged incapacitated person's or minor's", and after "or both", deleted "of the person to be protected"; in Subsection B, after "Upon", added "separate", after "shall schedule" added "and hold", after "appointment of a temporary conservator", deleted "for the earliest possible date, appoint counsel for the person to be protected and give notice as provided in Section 45-5-405 NMSA 1978" and added the remainder of the subsection; added a new subsection designation "C." and redesignated former Subsection C as Subsection D; in Subsection C, after each occurrence of "immediate and irreparable harm to the", added "alleged incapacitated person's", after "financial interests", deleted "of the person to be protected", after "property", deleted "of the person to be protected", after "shall not exceed", deleted "sixty days, except that upon order of the court, the temporary conservatorship may be extended for no more than", and added the last sentence of the subsection; in Subsection D, after "without notice to the", added "alleged incapacitated", after the next occurrence of "person", deleted "to be protected" and added "and to the alleged incapacitated person's attorney", after "harm will result to the", added "alleged incapacitated person's", after "financial interests", deleted "of the person to be protected", after "before a", added "ten-day", deleted "The person to be protected shall be notified in a writing by the petitioner within twenty-four hours of the appointment of a temporary conservator in substantial accordance with the provisions of Subsection B of Section 45-5-405 NMSA 1978. On two days' notice to the party who obtained the appointment of a temporary conservator without notice or on such shorter notice to that party as the court may prescribe, the person to be protected may appear and move for dissolution or modification of the court's order, and, in that event, the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require." and added the remainder of the subsection; added a new Subsection E and redesignated former Subsection D as Subsection F; and in Subsection F, after "shall have the", added "temporary", after "legal rights of the", added "alleged incapacitated", and after "person", deleted "to be protected" and added "as specified in the court order". The 1993 amendment, effective July 1, 1993, rewrote this section to the extent that a detailed comparison is impracticable. District court's authority to order payment of attorney fees. — Where petitioner, through their attorney, filed a petition for the appointment of a guardian and conservator for petitioner's mother under the New Mexico Probate Code, and where the attorney's fees had been paid by the temporary conservator until other interested parties objected, and where the district court ordered the attorney fees to be paid from funds from the protected person's estate, and where the appointed guardian and conservator argued that the district court was without authority to order the estate to pay the attorney fees, the district court did not err in ordering that the attorney fees be paid from the estate of the protected person, because under Article 5 of the Uniform Probate Code, conservators may expend reasonably necessary sums for the benefit of a protected person after considering the impact such expenditures would have on the protected person's care and finances, and in this case, the district court found that the attorney's actions were necessary and taken for the mother's benefit and that the bills were reasonable, and no party suggested that paying the bills would be detrimental to the protected person. In re Elizabeth A ., 2024-NMCA-017, cert. denied.
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