Copyright © 2018 Albuquerque Journal
With a new law taking effect July 1, the state Supreme Court has appointed a rules committee to get down to the details of reforming the state’s adult guardianship system – but the group’s composition is drawing criticism for including guardianship professionals but excluding critics and family members of incapacitated people.
Of the 22 people who applied to serve on the rules committee, the Supreme Court appointed eight members – two judges, five attorneys and a professional court visitor who advises judges in guardianship cases. The court visitor was the sole non-attorney appointed.
“Having seen the list, it looks like more of the same going on with the courts,” said Emily Darnell Nunez of Albuquerque, whose family was embroiled in a controversial guardianship case, beginning in 2010. “Some of these people make their living out of being attorneys for guardianship cases. So it looks like insiders.”
One non-lawyer who applied, but wasn’t appointed, is Jorja Armijo-Brasher, former director of the city of Albuquerque’s Department of Senior Affairs. She has been a vocal critic of the current system and served on the guardianship commission appointed by the Supreme Court to recommend improvements. That commission’s work ended Jan. 1, with a slate of reforms proposed.
“The hope was when it (the rules committee) went forward that there was potential and there would be some real scrutiny of the processes and procedures being used,” Armijo-Brasher said last week. “There’s always the concern when the people working for that industry may be the only ones looking at themselves. It is hard to always look at yourself without having other eyes to help you see clearly.”
Chairing the rules committee is Gaelle McConnell, an Albuquerque lawyer, who also served the Supreme Court commission last year. McConnell has a background in guardianship and conservatorship law.
The judges appointed are both from Albuquerque: Shannon Bacon, who has openly advocated change in legislative hearings, and Nancy Franchini, also a member of last year’s Supreme Court guardianship commission. Other members include Sarah Steadman, a professor at the University of New Mexico Law School, Alice Liu McCoy, a lawyer with Disability Rights New Mexico, and Mary H. Smith, a former assistant attorney general, who most recently worked for the state’s Office of Guardianship, which provides legal guardianship services to low-income incapacitated people.
The list also includes longtime Albuquerque attorney Ruth Pregenzer, who has specialized in elder law, probate and guardianship matters; and Mary Galvez, who has frequently worked as an appointed court visitor in guardianship cases.
Pregenzer, who said she no longer takes new guardianship cases, said in an interview Thursday that she understands concerns raised by critics.
“This (rules committee) is hard work. I’m not saying anybody can’t do it, but it doesn’t hurt to have some knowledge of the law, and some knowledge of the area of law that you’re being asked to prepare rules for. I don’t think that because I have expertise in this area that I represent the status quo.”
She also said the public will be able to comment on the proposed rules before they are adopted by the Supreme Court.
The rules committee work is considered especially important in view of this year’s legislative session.
The Senate bill that passed and goes into effect July 1 addressed several key concerns raised by advocates: more transparency in the now closed legal system by which incapacitated people are appointed guardians; more notice to family members of court proceedings; requiring financial bonds for professional conservators; and allowing greater visitation by relatives and others.
But other proposed legislative reforms were put on hold at the urging of the judiciary. Some see the rules committee as a vehicle for additional change without the need for legislation – although some say the committee could conceivably propose rules to limit the impact of some of the changes.
“I don’t know what direction this is going now,” Armijo-Brasher told the Journal last week. “Is it going in the direction we had hoped?”
The Supreme Court commission last year recommended the formation of the rules committee, and eight possible rules. They include:
• Requiring mediation in contested cases.
• Requiring national certification for professional, guardians and conservators.
• Addressing the court practice by which the petitioner’s attorney can “stack the deck” in favor of a guardianship by recommending to the judge who should serve as guardian, guardian ad litem, court visitor and the health care expert.
Critics have challenged whether appointed professionals are really working for the best interest of a protected person or family when it is the petitioner’s lawyer who has recommended their hiring.
Darnell Nunez served on the Supreme Court guardianship commission last year. She decided not to apply to serve on the rules committee, but she said it has the potential to make important changes.
“These (protected people) aren’t criminals we’re talking about. We’re talking about elderly people who are sick. Ordinary people who have lived good lives, who don’t deserve to have the fleecing of them at the end. Is this rules committee going to be the rules committee that creates the changes needed to make the guardianship system fairer and right for our elderly population?”
Both Pregenzer and Galvez were involved in the high-profile guardian/conservator case involving the mother of Emily Darnell Nunez, Corrales resident Blair Darnell. As profiled in a Journal series in 2016, most of Darnell’s adult children were highly critical of the closed guardian/conservator process and the fees charged by the professionals appointed to make decisions for Darnell’s care and her finances.
Both Pregenzer and Galvez also testified last May before the Supreme Court guardianship commission, chaired by retired District Judge Wendy York.
During her appearance, Pregenzer defended the professionals who are appointed on the recommendation of the person seeking the guardianship for an incapacitated person. Many petitions for guardianship aren’t contested by family members of others, but some are.
“Regardless of who nominates them to serve in these roles, (they) take their position very seriously,” Pregenzer told the commission last year. “Rather than rubber stamp any particular position put forth in a petition, they do their own independent investigation and try their best to provide helpful recommendations to the judge who has to make one of the most difficult decisions a judge can make.”
But the final report of the guardianship commission cited other testimony from “several commenters that the current system allows the petitioning attorney to ‘stack the deck’ in the petitioner’s favor. The Commission strongly believes that this practice should be avoided due to the potential of a conflict of interest.”
Some other states randomly select guardian ad litem attorneys for the alleged incapacitated person. In California, a court staff investigator also reviews petitions and advises the judge.
In New Mexico, there’s no court rule requiring the petitioner’s attorney to recommend appointees, but the practice has been described as a “convenience” for judges. The professionals who advise the court are paid from the protected person’s estate if a guardianship is granted.
In her testimony to the commission last year, Pregenzer said that more transparency would allow professionals to respond when family members publicly criticize their actions.
Under current law, when guardians or attorneys are “hammered” by criticism, Pregenzer said they cannot explain their decisions, because the cases are sequestered. Yet, she told the commission, “family members can explain their position to the news media.”
“I’m not against reforms,” she told the Journal last week. She said the new guardianship law’s mandate for open hearings “is going to help provide a more balanced view of the process, and heaven knows there are problems with the process.”
Once appointed, guardians and conservators have virtual carte blanche over a “protected person’s” life and financial decisions, and can dictate whether family members will be allowed to have contact with them.
Top managers in one now-closed Albuquerque-based guardianship firm have been indicted on federal charges alleging they stole millions of dollars from their New Mexico clients. The firm had been appointed in hundreds of cases.
There has been widespread criticism, here and nationally, that protected people under some guardianships or conservatorships are being isolated and their funds mismanaged.
The Journal reported recently that required annual reports guardians and conservators are supposed to file with the court about the welfare and finances of the “protected person” in their care were missing in dozens of cases in southern New Mexico alone.
Moreover, the courts don’t have the computer capability to say with certainty how many people in New Mexico are currently under a guardianship or conservatorship.