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Senate to consider guardianship fix

Copyright © 2018 Albuquerque Journal

SANTA FE – A phased-in guardianship reform bill is headed to the full Senate for a vote after the Senate Judiciary Committee on Monday endorsed the idea of injecting transparency – rather than big changes – into the current system within six months.

The measure, a substitute sponsored by Sen. Jim White, R-Albuquerque, and Sen. Daniel Ivey-Soto, D-Albuquerque, would put off a more comprehensive overhaul until 2020 to give the courts and legislators time to weigh the impact of the changes of adopting what’s known as the Uniform Act.

“We’re making progress,”White said after the Judiciary Committee voted 7-1 to send the measure to the full Senate.

White last month introduced a 180-page version of the Uniform Act as the answer to a growing chorus of complaints about New Mexico’s guardianship system.

The national Uniform Law Commission released the new national model for states to adopt last fall, and New Mexico is the first state to consider enactment.

But the Judiciary Committee learned Monday that the model guardianship law requires some final additions by the Chicago-based commission that won’t occur until April.

Moreover, the annual price tag for the full package of reforms to be implemented as-is in New Mexico was estimated at $7 million for each of the first two years.

So over the weekend, White and Ivey-Soto pulled out aspects of the national model to include in the substitute bill, such as providing family members access to court records.

And the substitute allows for less restrictive alternatives to a full guardianship, which is supposed to be a last-resort option giving guardians broad discretion to dictate how and where an incapacitated person lives.

The dissenting vote, cast by Sen. Jacob Candelaria, D-Albuquerque, came after state District Judge Nancy Franchini of Albuquerque, who was representing the courts, told the committee that the judiciary hadn’t been provided the opportunity to assess the fiscal impact of the last-minute changes.

“I’m struggling a bit,” Candelaria said. “I don’t want to sweep aside the concerns raised today.”

He noted, however, the importance of enacting reforms this year “when you realize people’s lives are at stake.” He said he might change his vote when the measure goes to the Senate floor this week.

White said the bill would make 16 changes in current law that he said are “low-cost and can be implemented easily.” That includes opening guardianship hearings to the public. He said he believes $1 million would be provided in next year’s budget to absorb any financial impact.

“We hope we got it right,” said Ivey-Soto, noting that the substitute places “this entire new responsibility on the courts.”

If approved, the substitute would require more information to be provided to judges by attorneys who petition the courts to place an incapacitated person under a guardianship and conservatorship. There would be broader notice to family members of a loved one’s pending guardianship action.

Non-family conservators appointed to manage an incapacitated person’s finances would be required to post a bond to cover any losses or mismanagement.

That provision comes after two Albuquerque firms that handled guardianships or conservatorships shut down last year amid federal charges of embezzlement of millions of dollars of client funds.

Ivey-Soto said adding a version of the Uniform Act to the measure, with an effective date of July 1, 2020, “makes clear our commitment to have a comprehensive fix.”

“We’ve got to be careful and we’ve got to make sure we’ve got this right,” he said.

If approved by the Senate, the substitute would head to the House. The session ends at noon Feb. 15.

“It’s got a long way to go in the session,” added Judiciary Committee member Sen. William Payne, R-Albuquerque.

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