“I don’t know exactly how New Mexico got off on the wrong track, but it certainly did.”
– Uniform Law Commission member Jack Burton, on New Mexico’s guardianship laws
The description by Burton of New Mexico’s guardianship system is, if anything, kind. As demonstrated time and again, it is a system rife with mismanagement and abuse – a system that has lacked financial accountability and that has relegated family members who have dared to challenge the decisions of the cadre of professional insiders who dominate the system to the equivalent of the penalty box.
Fortunately for New Mexico, and especially fortunate for some of its most vulnerable residents and their loved ones, some significant reforms are within reach.
One of those reforms would be the adoption of the model law drafted by the Uniform Law Commission that lifts some of the smothering secrecy from the process and gives family members the right to see how their loved ones are being cared for and how their money is being spent.
Right now, there are no such guarantees, and in fact guardians, conservators and judges in general have shut them out by falling back on what they say are the secrecy requirements under existing law. The situation facing Karla Holomon and her half-sister, Cheryl, as reported Sunday by Journal investigative reporter Colleen Heild, is a case in point:
Cheryl lives in New Mexico and has dementia and other health problems. Karla, a retired corporate lawyer, lives in North Carolina. A social worker called Karla and said Cheryl needed a guardianship, wanting Karla to be the petitioner. She agreed, later offering to pay up to $10,000 to an attorney here. But Karla says she balked at signing a fee agreement with no cap and said she felt like she was being coerced. That ended the conference call and the guardianship moved forward with Central Desert Behavioral Health Center, where Cheryl was staying, filing as the petitioner.
Karla acknowledges she can’t care for her sister and is grateful that the system will try to take care of her. But she would like updates such as financial reports the guardian files with the judge to make sure her sister’s assets – more than $100,000 and a long-term care policy – are spent wisely.
She made this request in a letter to District Judge Alan Malott, who granted the guardianship request and appointed commercial company CNRAG as the guardian. A docket sheet says the letter has been added to the case file – which is closed to the public – and there is no guarantee under New Mexico law that Karla will ever be told anything. There would have been no guarantee even if she had paid the money and been the petitioner.
But there is a ray of light on the horizon. More like a sunrise.
Sen. James White, R-Albuquerque, is sponsoring a 187-page version of the Uniform Laws reform act, which was the product of two years of study by national experts. There will be a companion bill to provide money for the state’s courts to hire people to monitor and audit guardians and conservators – key recommendations of a state Supreme Court Commission appointed to study the problem.
“From testimony we received, there was the strong belief that families are too frequently excluded from a meaningful role in this process,” said Sen. Jerry Ortiz y Pino, D-Albuquerque, a commission member who has worked for years on behalf of families.
Ortiz y Pino’s description is accurate, albeit diplomatic. In fact, the system tends to treat families as an irritant and often dismisses them as being “too emotional.” And the system hates it when “emotion” gets in the way of driving participants’ bottom lines.
Gov. Susana Martinez has said she will include guardianship matters on her message for the 30-day budget session.
Presumably, the language will be broad enough to make sure lawmakers can finally make changes needed to protect the state’s most vulnerable residents and their loved ones.
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.