By Merri Rudd, appeared May 11, 2006, Albuquerque Journal, Business Outlook
Reprinted with permission

Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.

Q: Your column about the shares of missing heirs mentioned an alternative way to hold their share: "If an heir, devisee or claimant cannot be found, the personal representative shall distribute the share of the missing person to his conservator, if any." How does a missing heir come to have a conservator? G.H., Albuquerque

I can summarize only the conservatorship proceeding in New Mexico, since I am not familiar with other states' laws.

In New Mexico obtaining a conservatorship requires a court proceeding. The district court has to power to appoint a conservator to make financial decisions for someone.

The court may impose a conservatorship if a person is (1) a minor with financial assets, or (2) incapacitated, or (3) unable to manage his or her estate and financial affairs effectively for reasons such as confinement, detention by a foreign power, or disappearance. A conservatorship could also be appropriate if an incapacitated person is being abused, neglected or exploited by family members or others.

New Mexico's laws allow the court to impose a limited conservatorship tailored to the specific needs of an individual. If a court imposes a full conservatorship on someone, that person loses the right to handle his or her own financial matters.
The court proceeding to appoint a conservator involves multiple parties:

• Any person interested in the estate, affairs or welfare of the person to be protected can petition the court, with the help of an attorney, to appoint a conservator for someone.
• The court appoints a "guardian ad litem" for the alleged incapacitated or missing person. The guardian ad litem must be an attorney. The duties of the guardian ad litem include representing the person and presenting that person's views to the court, as well as making recommendations that best protect the interests of the person.
• The court appoints a "visitor" to interview the alleged incapacitated or missing person and submit a written report to the court. The visitor is usually a nurse, social worker or someone familiar with various incapacities of people. The visitor must interview the person, if possible, and interview the person seeking appointment as conservator.
• The court appoints a "qualified health care professional," such as a physician or nurse practitioner, to examine the alleged incapacitated or missing person and submit a written report to the court.
• Notice of the court hearing must be given to certain persons, including the alleged incapacitated or missing person, prior to the hearing date.
• A court hearing is held and the judge considers all evidence for and against the conservatorship appointment, makes findings, and decides whether to sign an order imposing a conservatorship upon a person.
  
  Even when a person is missing, the above procedures are followed to the extent possible.
  
  Once appointed by the court, the conservator receives Letters of Conservatorship from the court, which is official proof of the conservator's authority to act for the incapacitated or missing person.
  
  The conservator can then make financial decisions for the incapacitated or missing person, including paying bills, selling real estate, running a business, rolling over certificates of deposit or managing investment accounts, preparing and filing income tax returns, and filing insurance claims. Conservators may not make a will for someone who is incapacitated or missing.
  The conservator must file with the court:
  
  
• A complete inventory of the incapacitated or missing person's estate within ninety days of appointment as conservator; and
  
• An annual conservator's report; and
• An annual accounting of income, expenses and financial matters handled by the conservator.
  
  
  © 2006, Merri Rudd & Albuquerque Journal, All Rights Reserved