As used in the Protecting Vulnerable Adults from Financial Exploitation Act:

A. "agencies" means the securities division of the regulation and licensing department and the adult protective services division of the aging and long-term services department;

B. "agent" means an individual, other than a broker-dealer, who represents a broker-dealer in effecting or attempting to effect purchases or sales of securities, or represents an issuer in effecting or attempting to effect purchases or sales of the issuer's securities, but a partner, officer or director of a broker-dealer or issuer, or an individual having a similar status or performing similar functions, is an agent only if the individual otherwise comes within the term. "Agent" does not include an individual excluded by rule adopted pursuant to the New Mexico Uniform Securities Act [58-13C-101 to 58-13C-701 NMSA 1978];

C. "broker-dealer" means a person engaged in the business of effecting transactions in securities for the account of others or for the person's own account. "Broker-dealer" does not include:

1. (1) an agent;
2. (2) an issuer;

3. (3) a bank or savings institution if:

   1. (a) its activities as a broker-dealer are limited to those specified in: 1) Subsections 3(a)(4)(B)(i) through (vi) and (viii) through (ix) of the federal Securities Exchange Act of 1934, and they are unsolicited transactions; 2) Subsection 3(a)(5)(B) of that act; or 3) Subsection 3(a)(5)(C) of that act; or
   2. (b) the bank satisfies the conditions described in Subsection 3(a)(4)(E) of the federal Securities Exchange Act of 1934;
4. (4) an international banking institution; or

5. (5) a person excluded by rule adopted pursuant to the New Mexico Uniform Securities Act;

   D. "eligible adult" means:

6. (1) a person sixty-five years of age or older; or

7. (2) an incapacitated person who is eighteen years of age or older;

   E. "financial exploitation" means:

8. (1) the wrongful or unauthorized taking, withholding, appropriation or use of money, assets or property of an eligible adult; or

9. (2) any act or omission taken by a person, including through the use of a power of attorney, guardianship or conservatorship of an eligible adult, to:

   1. (a) obtain control, through deception, intimidation or undue influence, over the eligible adult's money, assets or property to deprive the eligible adult of the ownership, use, benefit or possession of the eligible adult's money, assets or property; or

   2. (b) convert money, assets or property of the eligible adult to deprive such eligible adult of the ownership, use, benefit or possession of the eligible adult's money, assets or property;

      F. "incapacitated person" means a person with a mental, physical or developmental condition that substantially impairs the person's ability to provide adequately for the person's own care or protection;

      G. "investment adviser" means a person that, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or the advisability of investing in, purchasing or selling securities or that, for compensation and as a part of a regular business, issues or promulgates analyses or reports concerning securities. "Investment adviser" includes a financial planner or other person that, as an integral component of other financially related services, provides investment advice to others for compensation as part of a business or that holds itself out as providing investment advice to others for compensation. "Investment adviser" does not include:

10. (1) an investment adviser representative;
11. (2) a lawyer, accountant, engineer or teacher whose performance of investment advice is solely incidental to the practice of the person's profession;
12. (3) a broker-dealer or its agents whose performance of investment advice is solely incidental to the conduct of business as a broker-dealer and that does not receive special compensation for the investment advice;

13. (4) a publisher, employee or columnist of a bona fide newspaper, news magazine or business or financial publication of general and regular circulation or an owner operator, producer or employee of a cable, radio or television network, station or production facility, if, in either case:

    1. (a) the financial or business news or advice is contained in a publication or broadcast disseminated to the general public; and
    2. (b) the content does not consist of rendering advice on the basis of the specific investment situation of each client;
14. (5) a federal covered investment adviser;
15. (6) a bank or a savings institution; or

16. (7) any other person excluded by rule adopted pursuant to the New Mexico Uniform Securities Act;

    H. "investment adviser representative" means an individual employed by or associated with a New Mexico investment adviser or federal covered investment adviser and who makes recommendations or otherwise gives investment advice regarding securities, manages accounts or portfolios of clients, determines which recommendation or advice regarding securities should be given, provides investment advice or holds herself or himself out as providing investment advice, receives compensation to solicit, offer or negotiate for the sale of or for selling investment advice or supervises employees who perform any of the foregoing. "Investment adviser representative" does not include an individual who:

17. (1) performs only clerical or ministerial acts;
18. (2) is an agent whose performance of investment advice is solely incidental to the individual acting as an agent and who does not receive special compensation for investment advisory services;

19. (3) is employed by or associated with a federal covered investment adviser, unless the individual has a place of business in New Mexico, as "place of business" is defined by rule adopted pursuant to Section 203A of the federal Investment Advisers Act of 1940 and is:

    1. (a) an investment adviser representative, as "investment adviser representative" is defined by rule adopted pursuant to Section 203A of the federal Investment Advisers Act of 1940; or
    2. (b) not a supervised person as "supervised person" is defined in Section 202(a)(25) of the federal Investment Advisers Act of 1940; or

20. (4) is excluded by rule adopted pursuant to the New Mexico Uniform Securities Act;

    I. "issuer" means a person that issues or proposes to issue a security, subject to the following:

21. (1) the issuer of a voting trust certificate, collateral trust certificate, certificate of deposit for a security or share in an investment company without a board of directors or individuals performing similar functions is the person performing the acts and assuming the duties of depositor or manager pursuant to the trust or other agreement or instrument under which the security is issued;
22. (2) the issuer of an equipment trust certificate or similar security serving the same purpose is the person by which the property is or will be used or to which the property or equipment is or will be leased or conditionally sold or that is otherwise contractually responsible for assuring payment of the certificate; and

23. (3) the issuer of a fractional undivided interest in an oil, gas or other mineral lease or in payments out of production pursuant to a lease, right or royalty is the owner of an interest in the lease or in payments out of production pursuant to a lease, right or royalty, whether whole or fractional, that creates fractional interests for the purpose of sale;

    J. "qualified individual" means an agent, investment adviser representative or person who serves in a supervisory, compliance or legal capacity for a broker-dealer or investment adviser; and

    K. "savings institution" means an institution organized or chartered pursuant to the laws of a state or of the United States, authorized to receive deposits and supervised and examined by an official or agency of a state or the United States if its deposits or share accounts are insured to the maximum amount authorized by statute by the federal deposit insurance corporation, the national credit union share insurance fund or a successor authorized by federal law, or a receiver, conservator or other liquidating agent of such institutions or entities. "Savings institution" does not include:

24. (1) an insurance company or other organization primarily engaged in the business of insurance;
25. (2) a Morris plan bank; or
26. (3) an industrial loan company that is not an "insured depository institution" as defined in Section 3(c)(2) of the Federal Deposit Insurance Act or any successor federal statute.

History: Laws 2017, ch. 106, § 2.

ANNOTATIONS

Effective dates. — Laws 2017, ch. 106, § 9 made Laws 2017, ch. 106, § 2 effective July 1, 2017.

Cross references. — For the federal Securities Exchange Act of 1934, see 15 U.S.C. § 78a et seq.

For Section 203 of the federal Investment Advisers Act of 1940, see 15 U.S.C.S. § 80b-3.

For the Federal Deposit Insurance Act, see 12 U.S.C.S. § 1811 et seq.