The scaled-down guardianship reform package that unanimously passed the state House of Representatives and Senate in the waning hours of the Legislature is, in the words of Rep. Daymon Ely, “an excellent and substantial start, but … by no means the end of the process.”
Major changes in the legislation on the way to Gov. Susana Martinez will open the now-secret process to the public and family members who for the most part have been shut out.
The more extensive measure sponsored by Sen. James White, R-Albuquerque, took on a guardianship system that can generously be described as “broken.” It is an industry dominated by insiders that has allowed wasting of assets, outright theft, and mistreatment of wards and families by for-profit guardians and conservators.
Court oversight has been inadequate at best as millions of dollars have either been wasted by for-profit insiders or siphoned away from the assets of some of our most vulnerable people – those declared by a judge to be incapacitated.
In other cases, family members who objected to mistreatment of their loved ones or profligate spending by court-appointed conservators and guardians found themselves barred from even seeing their family member. Their complaints were often dismissed as “emotional.”
“This is long overdue reform,” says Ely, D-Corrales, who worked hard in the House Judiciary Committee to save the bill by stripping measures from White’s bill that imposed major changes on the judiciary – changes the courts said they were not yet prepared to deal with. In the end, the judiciary agreed reforms are needed and has pledged to work on additional changes – some contained in a model national statute drafted by the Uniform Law Commission.
Make no mistake. Even with the governor’s signature and the $1 million that comes with it to implement a revised system, there is much work left to be done. White told the Judiciary Committee that if someone asked him now whether they should get a guardian appointed for a loved one, “I’d say, don’t do it. This system is so broken right now.”
Abuses of the system have been chronicled in the Albuquerque Journal for more than a year – coverage originally met with protests from the industry and some judges. But as the story has unfolded – including federal criminal charges against commercial guardian firm Ayudando Guardians, which is accused of stealing millions from its clients, the tide of public opinion has turned.
Mary Darnell, whose family’s issues were featured in the Journal Series “Who Guards the Guardians,” asked members of the House Judiciary Committee to picture themselves in the place of families caught up in the system and pleaded with them to help those in guardianships “who don’t have a voice.” There could be as many as 7,000 people in New Mexico under guardianships – although the courts don’t actually know how many such cases exist. Some of the appropriation will go to determining the status of these cases.
Other necessary changes that are needed going forward involve a system by which a petitioning lawyer can’t also in effect name the guardian ad litem who will decide if a guardianship is needed. A formal method that allows families to put forth grievances is essential.
There has been a national movement to reform guardianships, and as usual New Mexico has lagged behind. But lawmakers have taken an important first step that moves us toward the forefront and deserves the governor’s signature.
Sen. White deserves great credit – especially as a non-lawyer taking on an attorney-dominated industry. Other key players include Sen. Daniel Ivey-Soto, D-Albuquerque; House Speaker Brian Egolf, D-Santa Fe; House Judiciary Committee Chair Gail Chasey, D-Albuquerque; and Rep. Ely.
Now it’s up to Gov. Martinez to make sure this first step takes effect July 1 – with the modest appropriation needed to make it work. Thousands of vulnerable people and their families are counting on it.
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.
