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The road ahead: Critical flaws abound in proposed guardianship laws

The Uniform Law Commission’s (ULC) recommended changes to New Mexico’s guardian and conservator laws continues to position judges and their appointees beyond any accountability for actions taken in guardian and/or conservatorship cases.

No financial monitoring of the judges, attorneys and professionals is proposed; the word “audit” is not found once in 150 pages of proposed statutes. Instead, existing laws are re-written, disguising while continuing the existing unconstitutional, yet deemed legal, actions of judges and their appointees.

Current law explicitly states that judges have the first priority in appointing who may become guardian/conservator. The recommended ULC statute reads:

Section 309 (c) The court, acting in the best interest of the respondent, may decline to appoint as guardian a person having priority under subsection (a) and appoint a person having a lower priority or no priority.

Note that “no priority” means anybody of the judge’s choosing can be appointed your guardian or conservator. Judges currently have – and will continue to have – unconstitutional authority to void your legal contracts and replace your legal instructions with the judge’s choice, violating your civil and constitutional rights.

Another fundamental flaw of the proposed ULC statutes is the inclusion of two words – “and equity” – contained in the title and the sole sentence comprising Section 103. The words “and equity” must be stricken from the proposed statutes. As long as the words “and equity” remain, judges can base their rulings on “equity” principles, principles which allow judges to ignore black letter law and accept their own appointed attorneys’ arguments that the appointees’ action have been “equitable” – even when those actions grossly violate laws, as well as the wards’ civil, constitutional and human rights.

The suggested Uniform Commission Laws recommended statutes do not offer the wards and their families protection from the judges’ and their appointees’ actions, should those actions turn out to be financially unfavorable to the ward, as currently estimated in 35 percent of all guardianship cases, according to retired Judge Ted Baca in this year’s March 22 town hall meeting.

Currently, and in the future, should these ULC statutes be adopted, there is not, and will never be, any recourse available to wards or their families to complain or receive justice from anyone if the judge and their appointees act contrary to the wards’ or the families’ and loved ones’ interests. Meanwhile, state regulators have not done their legislatively required jobs of annual audits, bonding requirements or even minimal oversight of the court-appointees to whom the judges have given total authority over living human beings and their entire lives’ assets.

At Americans Against Abusive Probate Guardianship we support legislation such as HB 146 Protection of Vulnerable Adults as originally introduced in the 2017 legislative session by Reps. Yvette Herrell, R-Alamogordo, and Deborah Armstrong, D-Albuquerque. The original wording of HB 146 criminalized and penalized actions that defraud vulnerable adults, such as the actions taken by court-appointed Paul Donisthorpe/Desert Trust and (allegedly taken by) Ayudando Guardians. HB 146 could also be used to investigate cases of suspected fraud, such as the case of Blair Darnell and the cases of several other clients of the same court-appointed attorney, including the RC Gorman estate.

In the protection of vulnerable people who are at the court’s mercy, the devil is truly in the details of the law. Legislators would do well to nix the Uniform Law Commission proposed changes since they offer no guarantees to New Mexicans that if the courts fail to follow existing laws – as has been documented time and time again by the Journal – that the harmed parties have recourse to hold those judges and their appointees accountable, and for the wards to be reimbursed ALL money improperly taken from them by court order.

Legislators should instead enact 2017’s HB 146 as originally submitted, to put some teeth and punishment toward criminals who abuse their judicial or court-appointed authority to steal from the vulnerable.

Kelley Smoot Garrett is Executive Vice President of Americans Against Abusive Probate Guardianship and was a panel member at the March 22 town hall meeting about guardianship sponsored by the Albuquerque Journal.




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