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Editorial: Commission needs to dig deep into guardianship travesty

It would be impossible for a special commission — appointed by the New Mexico Supreme Court to review and recommend changes in the state guardianship system — to ignore shocking recent allegations of outright theft by guardians and conservators.

These are the same guardians and conservators who are appointed by judges to protect some of our most vulnerable residents — the elderly and disabled.

When federal investigators describe a commercial guardian company like Ayudando Guardians Inc. as “permeated by crime,” it would seem even the most ardent defenders of the system would have to take notice. Remember, Ayudando was appointed in hundreds of cases and represented the professional guardians at one commission hearing.

Such cases highlight obvious areas in need of reform. The courts have no forensic auditing capability, there are no meaningful financial reporting requirements, no requirement in state law for guardians and conservators to post bond and no place for families to complain.

But the commission and court also need to look at other, more subtle, problems in a system that lacks meaningful oversight even though it is susceptible to corruption.

Consider these scenarios, based on real-life examples from the Journal’s ongoing investigation:

1. You are struggling with how to care for a parent whose mental faculties have deteriorated. You temporarily put Mom in a care facility, then decide to bring her home. But caregivers and attorneys who make a living in this system urge you to petition for a guardianship. It will be so much less stress, they say. The professionals can handle it so much better, they say. You can go back to being son or daughter. They might even privately urge Mom to tell you that’s what she wants. The pressure is subtle and they don’t mention, of course, that this is their source of income.

2. You concur and petition for a guardianship. A judge declares Mom or Dad incapacitated and appoints a guardian and/or conservator. But a year or so later you aren’t happy with the care Mom’s getting and you think the charges racked up by the professionals — and taken from Mom’s assets — are excessive. Conservators and guardians have virtually no check on their spending other than possible after-the-fact review by the judge. You object. But they dismiss your complaints. You have nothing to say about this any more.

3. You can’t even discuss these issues with Mom. It “upsets” her, says the guardian. In fact, so much so they can cut you off from Mom. Totally. Without judicial approval. Visits, if allowed, will be “monitored” for content.

4. You go back to your attorney for help. Ooops. He/she can’t help you because he/she represents the guardian and/or conservator in other cases. This is, after all, an industry dominated by insiders.

5. The guardian and/or conservator fight your efforts for removal and even cut off your visitation. They, after all, are empowered by the court. And they pay their lawyers who are fighting to keep you away from Mom out of — you guessed it — Mom’s estate. And they don’t need advance court approval for this.

6. You’ve found a new lawyer and started over. But it’s an uphill battle. You will be portrayed as the shrill and “emotional” family member by industry insiders and their lawyers, who are smooth and polished before the judges they know well and who defend them publicly.

7. You dig into your own pocketbook and the guardian and/or conservator finally relent. OK. You can see Mom and maybe they will even agree to step aside and allow appointment of another firm. But part of the price to end the legal war is a “side” agreement in which you promise never to criticize the company or even acknowledge the existence of such an agreement.

8. You’ve had running disputes with the conservator but really want the estate settled now that Mom’s gone. You’re asked to sign a document releasing the conservator from all liability and, likely, a promise you won’t criticize. But you want a real accounting? You may have to post a significant bond — even though guardians and conservators typically in New Mexico haven’t been required to do that when they take over your loved one’s estate and finances.

The initial reaction by some District Court judges in Albuquerque to family complaints — Judge Shannon Bacon being a notable exception — was one of denial. Nothing to see here. Move along.

But that’s not possible now with law enforcement accusations of millions of dollars stolen from protected wards by court-appointed guardians such as Ayudando.

Yes, there are some obvious reforms. And as noted in today’s Page 1 story by investigative reporter Colleen Heild, Bernalillo County district judges have begun taking important steps.

But to fix the structural problems that have allowed this abuse of people and their assets, the commission and the Supreme Court will need to dig a little deeper into the decay that has allowed these problems to flourish.

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.

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