Editorial: Progress on guardianship reform; more work to do - Albuquerque Journal

Editorial: Progress on guardianship reform; more work to do

The special commission appointed by the state Supreme Court to recommend changes in N.M.’s troubled guardianship system has made some important recommendations aimed at improving oversight, giving families more meaningful recourse and curbing industry abuse.

The commission, ably chaired by retired state District Judge Wendy York of Albuquerque, unveiled a slate of ambitious proposals, but will continue to work through the end of the year. And that’s a good thing because, while the recommendations are significant steps forward, there is more to do to fix a system that has been dominated by insiders and lacked meaningful oversight for decades. Ultimately, the state Supreme Court will decide what recommendations to implement, including what reform legislation to endorse.

Dozens of families have come forward since a Journal series published last year highlighted concerns and detailed deficiencies in the system. Many have testified in commission hearings, while others have spoken privately with York. Attention intensified with federal criminal charges against one of the state’s biggest commercial guardianship firms, Ayudando Guardians, for allegedly stealing millions of dollars from clients, and revelations that another company, Desert State Trust Management, also apparently plundered client accounts. In both cases, company principals allegedly used client money to live high on the hog.

This ransacking of the accounts of disabled and incapacitated people took place over a period of years and under the noses of judges to whom the guardians and conservators were supposed to report annually. An independent audit by state Auditor Tim Keller also found the state Office of Guardianship, responsible for about 900 indigent clients, had done a miserable job of oversight – with lax internal controls, failing to investigate complaints and performing required annual compliance audits on only two of 21 companies last year. So we can put to rest the lame claim that the system was just fine, thank you.

The commission chaired by York issued more than a dozen recommendations last week, including a requirement that commercial guardians and conservators be bonded, and establishing stringent reporting requirements guardians and conservators would have to submit to the judges who appointed them – including bank statements and other real financial information. Mediation or facilitated family meetings would be required in contested guardianship cases, and certification required of commercial guardians. A separate mechanism would be created where family members could take their grievances, and judges would be required to make specific findings of fact if they allow conservators to deviate from an incapacitated person’s advance directives, such as wills or family trusts.

Under the current system, guardians and conservators have virtually unlimited power to ignore family members, or even cut them off from visiting a loved one, and can ignore advance directives.

The commission opted to back off a recommendation that the state license commercial guardians and conservators – something worth revisiting. Certification isn’t enough. The two indicted Ayudando Guardian executives, one of whom told the commission the system was working just fine, had national certification. Licensing provides a real enforcement mechanism.

The commission also plans to take up the issue of “emergency” petitions for guardianships, which are subject to serious abuse and difficult to undo.

It should also revisit an earlier legislative proposal by commission member Conrad James, which would require a judge to make a finding before a guardian/conservator could cut off a family member from their loved one. As James has said, isolation is the first step in abuse.

Other ways to remove financial incentives for abuse:

• Require courts to appoint guardians ad litem and court-appointed visitors on a rotating basis from a pool rather than take recommendations of the lawyer who files the petition for guardianship and is able to recommend the “team” that will advise the judge on a guardianship.

• Don’t allow a commercial guardian/conservator to charge an estate for their legal fees if they fight a family member’s efforts to change a guardian or conservator.

• Allow some measure of transparency in the secretive system – especially after death of the incapacitated person or by family members who wish to make records public to support claims of overcharging, financial misconduct and physical neglect.

The commission has done some outstanding work and deserves the thanks of New Mexicans. The challenge now is to build on that excellent foundation.

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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