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Guardianship panel recommends changes to closed system

Copyright © 2018 Albuquerque Journal

A committee appointed by the state Supreme Court has recommended rule changes for New Mexico courts that would allow the public into previously closed hearings involving people placed under legal guardianship or conservatorship because of their mental or physical condition.

Access to confidential court records involving such cases will remain under wraps for the most part, under another proposed rule.

The first two rules proposed by the committee are open for public comment until Monday before the Supreme Court decides whether to implement them. The law goes into effect July 1.

Family members still won’t be entitled to automatically view copies of the annual reports on the welfare and finances of an incapacitated person under court protection – but will have better ability to seek access.

Those reports are required of guardians and conservators at least annually with the court. But under the proposed rules, state district court judges who hear such cases will have the discretion to permit access by family members or other interested parties.

The rules committee of mostly lawyers and judges has been reviewing ways for courts to implement the 59-page guardianship reform law passed overwhelmingly by the Legislature in February.

“The big picture is changing a little bit,” said state Sen. James White, R-Albuquerque, the original sponsor of the guardianship legislation. “People are watching, and judges are trying to make changes to improve things.”

The proposed rule for opening hearings is based on the provision of the new law that states the court, for good cause, can decide to close a hearing.

To close a hearing, the proposed rule states, a judge would have to hold a hearing on any proposed courtroom closure.

The rule proposes that open hearings apply to all cases pending or filed on or after July 1.

The other proposed rule up for public comment affects access to records.

While still allowing only the court docket sheet, which shows the actions in the case, to be public, there would be a list of people who could review the petition for guardianship or conservator before a judge rules on the matter. The judge’s order would also be available for review to those persons.

They would include an alleged incapacitated person’s spouse, adult children or stepchildren; persons responsible for their care; their attorneys, trustees and powers of attorneys; and people known to have assisted the person in the prior six months.

Once the judge’s order granting the guardianship or conservator is issued, the list of those able to review the court records, including medical or financial filings or reports, would be limited to the incapacitated person, their appointed guardian or conservator, and “any other person the court determines.”

Advocates of reforming guardianship laws have hailed the increased transparency to the current closed system, under which hundreds of people, many elderly with dementia or Alzheimer’s disease, are placed under the control of the appointed guardians or conservators.

One national expert who has been studying the guardianship issue for 30 years told the Journal last fall that New Mexico’s closed system was unusual.

“What struck me when I first looked at New Mexico, I was very surprised as a general matter that guardianship proceedings were not open to the public. That’s not consistent with how most other states address the issue,” David English, a professor at University of Missouri at Kansas City, told a now-disbanded commission appointed by the Supreme Court last year to recommend reforms.

The rules committee is expected to continue proposing rules involving guardianship reform until further notice of the Supreme Court.

The proposed rules can be found and comments lodged at the court’s website, under the “open for comment” rules at