New Mexico Statutes 45-7-511. Determination of incapacity; effect
A. The custodial trustee shall administer the custodial trust as for an incapacitated beneficiary if:
Terms Used In New Mexico Statutes 45-7-511
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Trustee: A person or institution holding and administering property in trust.
(1) the custodial trust was created under Section 45-7-506 N.M. Stat. Ann.;
(2) the transferor has so directed in the instrument creating the custodial trust;
or
(3) the custodial trustee has determined that the beneficiary is incapacitated.
B. A custodial trustee may determine that the beneficiary is incapacitated in reliance upon:
(1) previous direction or authority given by the beneficiary while not incapacitated, including direction or authority pursuant to a durable power of attorney;
(2) the certificate of the beneficiary’s physician; or
(3) other persuasive evidence.
C. If a custodial trustee for an incapacitated beneficiary reasonably concludes that the beneficiary’s incapacity has ceased, or that circumstances concerning the beneficiary’s ability to manage property and business affairs have changed since the creation of a custodial trust directing administration as for an incapacitated beneficiary, the custodial trustee may administer the trust as for a beneficiary who is not incapacitated.
D. On petition of the beneficiary, the custodial trustee or other person interested in the custodial trust property or the welfare of the beneficiary, the court shall determine whether the beneficiary is incapacitated.
E. Absent determination of incapacity of the beneficiary under Subsection B or D of this section, a custodial trustee who has reason to believe that the beneficiary is incapacitated shall administer the custodial trust in accordance with the provisions of the Uniform Custodial Trust Act N.M. Stat. Ann. § 45-7-501 to 45-7-522 applicable to an incapacitated beneficiary.
F. Incapacity of a beneficiary does not terminate: (1) the custodial trust;
(2) any designation of a successor custodial trustee; (3) rights or powers of the custodial trustee; or
(4) any immunities of third persons acting on instructions of the custodial trustee.