A. A provider entering into a viatical settlement contract shall first obtain:

(1) if the viator is the insured, a written statement from a licensed attending physician that the viator is of sound mind and under no constraint or undue influence to enter into a viatical settlement contract;

(2) a witnessed document in which the viator:

(a) consents to the viatical settlement contract;

(b) acknowledges that the insured has a catastrophic, life-threatening or chronic illness or condition;

(c) represents that the viator has a full and complete understanding of the viatical settlement contract;

(d) asserts that he has a full and complete understanding of the benefits of the life insurance policy; and

(e) acknowledges that he has entered into the viatical settlement contract freely and voluntarily; and

(3) a document in which the insured consents to the release of his medical records to a provider or broker.

B. All medical information solicited or obtained by a licensee shall be subject to the applicable provision of state law relating to confidentiality of medical information.

C. All viatical settlement contracts entered into in New Mexico shall provide the viator with an unconditional right to rescind the contract for at least fifteen calendar days from the receipt of the viatical settlement proceeds. If the insured dies during the rescission period, the viatical settlement contract shall be deemed to have been rescinded, subject to repayment to the provider of all viatical settlement proceeds.

D. Immediately upon the provider's receipt of documents to effect the transfer of the insurance policy, the provider shall pay the proceeds of the viatical settlement to an escrow or trust account in a state or federally chartered financial institution whose deposits are insured by the federal deposit insurance corporation. The account shall be managed by a trustee or escrow agent independent of the parties to the contract. The trustee or escrow agent shall transfer the proceeds to the viator immediately upon the provider's receipt of acknowledgment of the transfer of the insurance policy.

E. Failure to pay the viator within the time specified in Paragraph (4) of Subsection A of Section 8 of the Viatical Settlements Act [59A-20A-8 NMSA 1978] renders the viatical settlement contract voidable by the viator for lack of consideration until the time consideration is tendered to and accepted by the viator.

F. Contacts with the viator or insured for the purpose of determining the health status of the insured by the provider or broker after the viatical settlement has occurred shall only be made by the provider or broker licensed in New Mexico and shall be limited to once every three months for insureds with a life expectancy of more than one year and to no more than once per month for insureds with a life expectancy of one year or less. The provider or broker shall explain the procedure for these contacts at the time the viatical settlement contract is entered into. The limitations set forth in this subsection shall not apply to any contacts with an insured under a viaticated policy for reasons other than determining the viator's health status.

History: Laws 1999, ch. 246, § 9.

Effective dates. — Laws 1999, ch. 246, § 13, made the Viatical Settlements Act effective July 1, 2000.