HOUSE BILL 123
54th legislature - STATE OF NEW MEXICO - second session, 2020
RELATING TO CONSERVATORSHIP; PROVIDING FOR WAIVER OF LIABILITY OF A CONSERVATOR IF A PROTECTED PERSON OR A PERSON INTERESTED IN A CONSERVATORSHIP ESTATE IS REPRESENTED BY INDEPENDENT LEGAL COUNSEL.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 45-5-429 NMSA 1978 (being Laws 1975, Chapter 257, Section 5-429, as amended) is amended to read:
"45-5-429. INDIVIDUAL LIABILITY OF CONSERVATOR.--
A. Unless otherwise provided in the contract, a conservator is not individually liable on a contract properly entered into in the conservator's fiduciary capacity in the course of administration of the estate unless the conservator fails to reveal the conservator's representative capacity and identify the estate in the contract.
B. The conservator is individually liable for obligations arising from ownership or control of property of the estate or for torts committed in the course of administration of the estate only if the conservator is personally at fault.
C. Claims based on contracts entered into by a conservator in the conservator's fiduciary capacity on obligations arising from ownership or control of the estate or on torts committed in the course of administration of the estate may be asserted against the estate by proceeding against the conservator in the conservator's fiduciary capacity, whether or not the conservator is individually liable for those claims.
D. Any question of liability between the estate and the conservator individually may be determined in a proceeding for accounting, surcharge or indemnification or other appropriate proceeding or action.
E. No person shall request, procure or receive a release or waiver of liability, however denominated, of a conservator, an agent, an affiliate or a designee of a conservator or any other third party acting on behalf of a conservator unless the protected person or a person interested in the conservatorship estate is represented by independent legal counsel.
F. A release or waiver of liability that is requested, procured or received contrary to the provisions of this section is void."
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