Copyright © 2018 Albuquerque Journal
The New Mexico Senate on Wednesday approved a two-pronged measure to provide “immediate relief” to those who have struggled for years with the abuses of a closed legal guardianship/conservator system, while creating the framework for a comprehensive system overhaul by 2020.
The unanimous vote, which sends the legislation to the House of Representatives, comes after what one senator called a “Herculean” effort to address failings of the current system – as evidenced by the recent embezzlement of millions of dollars from guardian or conservator clients of two now-defunct Albuquerque firms.
Under the measure approved Wednesday, court hearings that are now closed would be open to the public as of July 1. Family members would have more access to guardianship records and visitation wouldn’t be as easily thwarted by commercial guardians, who also have been accused in some cases of profligate spending and excessive fees. Nonfamily conservators would have to post bonds in case financial impropriety occurred.
Sen. Daniel Ivey-Soto, D-Albuquerque, one of the bill’s sponsors, said the phased-in measure would give “immediate relief and to make sure we make good on a promise (for more comprehensive changes). We will keep legislating on it.”
Sen. Jim White, R-Albuquerque, who led the reform effort, told his colleagues before Wednesday’s vote that the state’s courts need more time and money to enact the more costly aspects of the measure, such as bringing all existing cases up to compliance.
Judges approve petitions for guardianship and rely on annual reports to ensure their guardian or conservator appointees are doing their jobs.
Sen. Jerry Ortiz y Pino, D-Albuquerque, a longtime advocate of reform, recounted his experience on the Supreme Court commission appointed last year after publication of a Journal series, “Who Guards the Guardians?” The commission heard testimony from the public about the issue last year.
“It was painful to hear how dysfunctional our system has become … because we as legislators haven’t been giving the judiciary the tools to make the system work better.”
Over the months of study by the commission and several legislators, a consensus emerged: Reporting requirements to allow judges to assess a protected person’s welfare and assets aren’t stringent enough. Families are sometimes shut out of their incapacitated loved ones’ lives by guardians. And judges should improve oversight. There was also the recognition that the judiciary is financially strapped and needs additional time and resources to implement more reform.
The judiciary, for instance, identified 24,000 existing cases in its computer system as being “sequestered” – meaning closed to the public. But it isn’t clear how many of those are adult guardianship cases, and there’s no way to easily tell in each case whether the protected person or the guardian is still alive.
“We don’t have that information, and that’s part of the issue before us,” White said. ” There’s not a database that keeps track of all those cases. There may be abuse out there that we don’t know about.” A provision of the bill, he said, would entail building a database of guardianship cases.
The bill, which Sen. Sander Rue, R-Albuquerque, described Wednesday as a “Herculean effort,” incorporates but delays the more expensive requirements of a new model guardianship reform law unveiled nationwide last fall.
In essence, more time and work would be required from attorneys who file petitions, from guardians and conservators, and from judges who hear the cases.
For example, guardians and conservators would have to devise plans detailing their care of a protected person and file them with the judge. Judges would have to give specific authorization for conservators to deviate from a protected person’s will, including considering the incapacitated person’s prior directives and financial needs.
“This bill is the result of a lot of work, both nationally and locally,” said Sen. Cisco McSorley, D-Albuquerque. “There is a huge need to protect elders. This is a reflection of a new American society where older people move to the Southwest to retire … without close family members, and there’s really nobody to look after them if they have some catastrophic event. Once you are incapacitated and in front of a judge, the judge literally gives somebody else total and complete control not only over your physical being, but your money, your future financial dealings, your legal dealings.”
Ortiz y Pino said that if the measure is signed into law, “We can feel very good about plugging some of the holes, such as families getting more notification (of when hearings will occur).”
But he said that if lawmakers don’t give the courts enough money for improved oversight, such as staff to review guardian and conservator reports and for field visits to check on protected people, “we’ve just hamstrung the new law and created no better situation.”