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Court suggests critical changes to state rules

Copyright © 2017 Albuquerque Journal

New Mexico’s secretive system under which the state handles daily living and financial decisions for hundreds of incapacitated people a year would undergo a radical transformation if recommendations unveiled by a state Supreme Court commission are adopted.

The commission’s final report of recommendations for an improved guardian/conservator system in New Mexico – released late Thursday – presents “critically important” changes to the structure and the practices that have been under study by the commission since April, stated the report.

The recommendations would require stricter accountability and oversight of guardians, including those professional for-profit firms that deduct their fees from the protected person’s assets.

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The commission asks the Supreme Court, the state Legislature and the governor to work together to fund and implement four of its “highest priority” recommendations at the “earliest opportunity.”

Three recommendations would increase oversight by requiring state funding. That funding is estimated at a little less than $1 million, and would cover:

• A computerized system to automate the filing and monitoring of conservator reports;

• Hiring auditors to monitor conservatorships;

• Employing special masters to hear grievances of family members and others who currently have little voice and few options once a judge approves a third-party professional as guardian or conservator for an incapacitated loved one.

Many of those who are deemed incapacitated have dementia, Alzheimer’s disease or have mental illness or impairment.

The fourth “highest priority” recommendation calls for the passage of a new slate of model guardianship laws from the Chicago-based Uniform Law Commission, which has been studying reforms for several years. Those laws would provide more notice to family members about hearings and would increase access to court hearings and records. Currently, all guardianship and conservatorship hearings are closed to the public. The only public record available is a court docket sheet that lists the name of the protected person, the parties and filings in the case.

New Mexico Sen. Jim White, R-Albuquerque, has prefiled a bill for the upcoming 30-day legislative session that would implement the model Uniform Law Commission guardianship laws.

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Other commission recommendations would go further than the Uniform Laws by requiring mediation or facilitated family meetings in all guardianship and conservatorship cases that are contested, which happens when family members are at odds.

“The Commission heard from multiple sources that getting family members together early in contested guardianship and conservatorship proceedings could help to avoid many common problems in these types of cases,” the report stated.

The commission asked, and the Supreme Court has already agreed, to appoint committees to develop rules and forms that would increase accountability.

The commission also recommended the development of a process for selecting independent court appointees who advise the judge on whether a guardian or conservator should be appointed. Critics say the current system allows the attorney filing for guardianship or conservatorship to “stack the deck” by nominating the people who serve as guardian ad litem or court visitor. In California, for example, the judge randomly selects from a list of attorneys who will serve as guardian ad litem. And, in California, an independent court investigator who works for the court system investigates whether a guardianship is warranted.

The commission also recommended establishing and funding an adult protected person oversight board to “regulate certified bonded, professional guardians and conservators and to communicate concerns about professional guardians and conservators to the courts.”

Judges would be required to undergo training that would include “how to effectively respond to the high emotion that often accompanies these cases.”

And, the commission urged the Supreme Court to continue its pursuit of improving the system by creating a recurring, diverse commission every four years to hold public hearings about guardianship and conservatorship rules and procedures and make recommendations.

“One of the biggest lessons learned from this process is that all branches of government share responsibility for the problems with the current guardianship system, and as a result, no single branch of government can reform the system on its own,” the report stated.

The 16-member commission, composed of district judges, attorneys and other professionals in the guardianship field, was appointed by the Supreme Court in April and was chaired by retired state District Judge Wendy York.

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