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Guardianship reforms near finish line

Copyright © 2018 Albuquerque Journal

SANTA FE – A package of remedies to try to fix the state’s ailing guardianship system cleared the House late Wednesday on a 63-0 vote, with the measure headed to the Senate for concurrence as the final hours waned in this year’s legislative session.

The bill, if approved, would provide more public and family access to the traditionally closed system for the hundreds of mentally or physically incapacitated adults in New Mexico who are placed under court-appointed guardianships or conservatorships each year.

If approved, the reforms would into effect July 1.

State Rep. Gail Chasey, D-Albuquerque, chairwoman of the House Judiciary Committee, before the vote Wednesday night said the bill is “manageable, measured and still addressed substantive reforms.”

Earlier in the day, Chasey said addressing the guardianship issue was a “huge priority in the session.”

Heavily amended in the committee process, the measure “is an excellent and substantial start, but it is by no means the end of the process,” said Rep. Daymon Ely, D-Corrales.

Ely led the move to lop off 200 pages of the original bill, which would have adopted a version of a new model Uniform Guardianship Act, which was considered too costly and in need of more study.

Before the House vote, Ely said that not all court-appointed guardians or conservators are “bad actors.”

“But this has become a tremendous problem,” Ely said. “There were some really doing horrendous things to very vulnerable people and their families.”

The bill relies on increased transparency, providing for open court hearings and more involvement of family members, to help deter abuses and exploitation that critics of the system have complained about publicly for months. The open hearings could still be closed at the court’s discretion, but an open hearing on the closure would have to be held first.

To salvage the reform bill, Chasey’s committee agreed to kill the section that would have implemented a national reform statute by July 2020.

The courts, which still can’t say exactly how many people are currently under guardianships or conservatorships, say New Mexico’s underfunded judicial system isn’t ready for such a dramatic and costly change.

Earlier in the week, Ely took the lead in proposing amendments to keep the implementation of the key provisions low-cost, within $1 million.

“This is a long-overdue reform,” Ely told the Journal. “There’s two ways that you get the crooks. One is you shine a light on them with transparency. The other is you make them accountable. You make them worry that somebody’s going to catch them.”

Nearly all the criticism of the system involves corporate guardians and conservators appointed by the courts in cases in which people are mentally or physically incapacitated. Over the past year, a major New Mexico corporate guardian, Ayudando Guardians, was closed by the U.S. Marshals Office after its top executives were indicted on federal charges related to the embezzlement of more than $4 million in client funds.

Primary opposition to the scaled-back version came from its original sponsor, state Sen. Jim White, R-Albuquerque, who proposed the state adopt a version of the newly released Uniform Guardianship Act, which provides for improved representation of those incapacitated people in guardianship and conservatorship proceedings. The comprehensive model law would also set out specific ways families could file grievances with the court about the appointed guardian or conservator.

“I’m so happy we’ve got this interest going, We didn’t have this a year ago,” White told the House Judiciary Committee before it scrapped the provision to implement the new model law by 2020. “But there’s a lot more that can be done. We need to make a commitment to bigger changes.”

White said that if someone would ask him whether they should get a guardian appointed, “I’d say, ‘Don’t do it.’ The system is so broken right now.”

He described the current closed process as “very, very scary.”

Ely, an attorney who said he has sued conservators in the past, told the Journal his amendments included a provision to outlaw the practice of some conservators, who oversee an incapacitated person’s finances, to require heirs to release them from all liability before they receive any distribution from an estate.

In addition, under the proposed legislation, “You can’t restrict visitors as much as you used to,” said Ely, who added that some “nefarious” guardians and conservators keep relatives away so they can “isolate the incapacitated person.”

Another feature of the bill is to require professional conservators to post bonds and file regular, extensive accountings with the courts on how they have handled an incapacitated person’s financial affairs. “I did hear this from one conservator that they couldn’t violate the confidentiality (of the closed process) to cooperate with the audit, and I thought that was unbelievable.” Ely said.

But Ely said the provisions aimed at accountability would be ineffective without the proposed $1 million in funding in House Bill 2 dedicated to guardianship reform. That money would help the courts research their case files to ascertain who is currently under guardianship and their status. The appropriation would help pay for independent auditors to perform spot checks.

Judges would also need to be educated on the reforms, he said.

“We’re depending on you to make it right for people who don’t have a voice” said Mary Darnell. The controversial guardianship/conservatorship case in 2010 of her mother, Blair Darnell, was featured in “Who’s Guarding the Guardians?,” a Journal investigative series, in late 2016.

Darnell asked the committee members to consider what would happen if they someday were placed under a court-appointed guardianship or conservatorship in New Mexico.

“If somebody walks into your home … puts down court papers and says they’re appointed by the court to take care of you and they have all your finances in their name … your family is going to be turned upside down. The courts are culpable, because they hire these people and they’re not overseeing them.”

Ely said the challenge of fixing all the problems with current law is daunting, considering that legislators had less than 30 days to achieve consensus.

“I think everybody, including Sen. White, are all motivated to do the right thing. Is it going to be perfect? No. But is this an incredibly significant reform to the process? Yes. And if we discover there are problems, we can come back during the next 60-day session and fix them.”

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