Copyright © 2018 Albuquerque Journal
SANTA FE – The push for greater transparency in the state’s legal guardianship system gathered momentum in a House Judiciary Committee hearing Monday, just as the idea of tethering immediate reforms to a bigger overhaul within two years seemed to dim.
Committee members, who are expected to continue the debate today or Wednesday, appeared ready to strip the guardianship bill of its last nearly 200 pages, which would implement a new model Uniform Act of reforms that the courts say needs more study and dedicated ways of financing the changes.
That measure, spearheaded by Sen. Jim White, R-Albuquerque, passed the Senate last week by unanimous vote, with the Uniform Act to take effect in 2020.
But in recent days, legislators, analysts and the courts have been taking a closer look at the ramifications to better gauge the impact of major changes that would be required of the system, which currently involves an estimated 5,000 to 7,000 existing cases with about 500 new guardianship filings each year.
Stripping the Uniform Act from the measure would leave major, less costly reforms, including open guardianship hearings, expanded notice of court actions to families, greater visitation and bonding of non-family conservators.
House Speaker Brian Egolf, D-Santa Fe, told the committee that if it removed the Uniform Act, he would take steps to see that the rest of the bill moved directly to a House floor vote before the session ends at noon Thursday. “Don’t worry. If we don’t vote on this today, it doesn’t mean it’s not going to happen,” Egolf told the packed committee room.
The bill originally had been assigned to House Judiciary and then House Appropriations and Finance, a path that could very well have led to the measure dying in committee.
Rep. Damon Ely, D-Corrales, offered a slate of amendments to the remaining portion that are expected to be debated today.
Noting that part of his legal practice is devoted to suing other attorneys, Ely said, “I have sued some of these people (attorneys in guardianship/conservatorship cases) in that connection. It is tragic what’s happened.”
“There are a few bad apples that are a disaster, and we have to address it,” he said.
The issue of transparency, and how much is too much, arose during the Judiciary Committee hearing Monday. Currently, all guardianship and conservatorship hearings are closed to the public, and even some family members. But other states have open hearings, which advocates believe would improve accountability of guardians, the lawyers who file the cases and judges themselves.
In earlier versions of White’s bill, such hearings would be open to the public, unless a judge deemed otherwise. But that provision wasn’t included in the bill approved by the Senate, said attorney Jack Burton, who helped White prepare the original bill. The sponsors told the Journal the omission was inadvertent and would be fixed in the measure to be voted on by House Judiciary.
District Judge Shannon Bacon, who testified Monday at the hearing, said the judiciary supports opening hearings to the public. The measure would also give judges the authority to grant requests for guardianship or conservatorship court records that are currently sealed by law.
“It would allow law enforcement to request access to a file, access which currently doesn’t exist,” she said.
But Jim Jackson, director of Disability Rights New Mexico, told the committee, “We may be in the minority, but we think the emphasis towards transparency goes a little too far.” He said there could be privacy issues involved with just “anybody” having access to hearings.
Jackson said the measure, even without the Uniform Act, would provide more accountability by permitting more involvement of families in cases of their loved ones. Having more eyes on the process would also “help uncover some of the problems that have been out there,”Jackson said.
Ely questioned “what the hurry is with the Uniform Act.”
“It’s the sword of Damocles over the judiciary to completely change the system with the hope that some future legislature will fund it,” he said. An estimated $7 million would be required for the first two years of the Uniform Act.
Ely said New Mexico judges, who oversee guardians and conservators, generally don’t scare easily. “But I think they’re scared of the Uniform Act, and I think they should be,” he said.
White, who has been working on the Uniform Act adoption for a year, said he was able to secure about $1 million for the bill as is, but doesn’t know if that funding in House Bill 2 would remain if the model act is eliminated.