There is no shortage of things that need to be fixed in New Mexico’s system of guardianships and conservatorships for people who are declared incapacitated, but without question the excessive secrecy that shrouds the system ranks high on the list.
So critics can take some comfort in the fact that a commission appointed by the state Supreme Court to review the system and recommend changes has honed in on the lack of transparency as one of the key issues.
Retired state District Judge Wendy York, who was appointed to chair the commission, says it is one of the recurrent themes presented during the commission’s first two public meetings. “We are hearing about notice of court hearings, involvement of family members and what is the appropriate line to draw between complete access to information and privacy.”
And it isn’t just aggrieved family members who have complained they are shut out of the information loop at the whim of for-profit, court-appointed guardians and conservators who take control of their loved one and his or her assets. Attorney Brian Vogler told the commission during its May 13 meeting that the secrecy of the process raises “due process concerns.” Vogler says his client needed to get some information from his guardian but the guardian declined to provide it. “It seems there needs to be a window in to see how the court is proceeding,” he said. After the meeting he said his inability to see how judges behave or have behaved in the past prevented him from learning information he needed and he wanted to speak to the commission to provide a perspective that the secrecy “doesn’t just impact families.”
And that secrecy is a thick blanket, with family members and others saying that in addition to difficulty getting information, they have been threatened with fines and penalties for revealing matters they learned in their own cases.
In theory, only a docket sheet in a guardianship case is considered a public record. But many clerks don’t know the law. The docket sheets have not been posted online, as they are supposed to be, and in a recent case a printed copy of a docket sheet obtained by the Journal had a questionable redaction by district court personnel – the name of a paid medical professional.
And as a practical matter, there isn’t even a simple provision that requires guardians, conservators and other for-profit professionals to adhere to fee schedules to keep costs to estates low. The fees are reviewed “ad hoc” – meaning at the judge’s discretion and measured against an unknown standard.
As for the commission itself, it has taken the troubling position that people who testify or submit material by email cannot use names and if they do so in written communications those communications will be returned. While the commission and the judicial system isn’t equipped and shouldn’t be expected to “redo” past cases, this procedure could be interpreted as not wanting to know if bad apples are playing the system. Wouldn’t it be useful if patterns emerged? Patterns that could be forwarded to the appropriate disciplinary boards? Perhaps there is a middle ground on this issue.
But there is no wisdom in throwing out the good and holding out for perfect. Other states have taken on the hard work of reforming the guardianship system, and identifying secrecy as a reform topic is right on point. This commission is doing important work at the Supreme Court’s direction and under York’s leadership.
This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.