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Guardianship system reforms ‘a foot in the door’

Copyright © 2018 Albuquerque Journal

Patricia Smith, second from left, waits to testify before the guardianship commission last year. The state Supreme Court appointed the commission. (Colleen Heild/Albuquerque Journal)

Patricia Smith’s father was dying of Alzheimer’s in 2007 when dementia took hold of her 87-year-old mother.

The older woman began driving on the wrong side of the road and was so paranoid she believed her daughter Patricia was exploiting her. And, an ex-convict on parole had ingratiated himself into her mother’s life.

Smith needed help, she said last year. “I realized I could not protect my mother. She wouldn’t let me.”

Like others who have aired their personal stories about the dysfunction of New Mexico’s guardianship system, Smith recounted for a Supreme Court commission in April 2017 how she finally went to court to obtain a professional legal guardian/conservator for her mother, only to discover the firm treated her mother as a “cash cow.”

“It behooved the whole interest of that company for the guardians to amp up their care to burn off my dad’s estate as fast as possible.”

They started charging $19,000 a month, Smith told the commission looking into guardianship reform, but wouldn’t pay for her mother to get a replacement for her inch-thin coat. It took eight months and $20,000 in legal fees before Smith and her sister could “disengage” her mother from the corporate guardian firm and recruit a separate guardian and conservator, with whom they had no complaints.

Heeding calls from family members like Smith, district courts in New Mexico come July 1 will operate under a new openness and greater accountability mandated by a new guardianship/conservatorship law approved by the Legislature earlier this year.

The state Supreme Court took the reforms a step further last week by requiring enhanced financial and background information from those who are legally appointed by judges to manage the affairs of the incapacitated.

For the first time, under the new Supreme Court rules and reporting forms, court-appointed guardians and conservators will have to regularly report the fees they charge the incapacitated person’s estate and, in the case of conservators, how the fees were calculated.

They must also provide specific bank account information about the incapacitated person, including bank account balances, in a format that will permit an auditor to detect misappropriation or mismanagement of funds. To that end, a pilot project involving the State Auditor’s Office is in the works, said state District Judge Shannon Bacon of Albuquerque, who has spearheaded the reform effort for the judiciary.

In another new disclosure, guardians and conservators must annually advise the court on their own status – if they had declared bankruptcy, been arrested or investigated by state Adult Protective Services, for instance. None of the annual reports filed with the court will be available to the public.

New law

Whether the new measures will fix New Mexico’s troubled guardianship system is unclear, Smith told the Journal last week. “But it’s a foot in the door,” said Smith, who has spent the last year contacting public officials, including Gov. Susana Martinez, to press for change.

In testifying before the now-disbanded commission last year, Smith cited the inadequate reporting forms required of guardians and conservators. Smith, a retired respiratory therapist, also advocated more openness in the system.

“We could really get more accountability and sunlight into the system so it wouldn’t be such a setup for abuse and exploitation of our elders,” she told the commission appointed by the Supreme Court.

In fact, the new law passed unanimously by the Legislature this year will require that hearings in such cases be open to the public, although filings will remain confidential unless a judge authorizes disclosure.

Two other changes give family members greater visitation rights and expand notification to relatives of court proceedings for an incapacitated loved one.

Not all critics are satisfied. Lorraine Mendiola, whose adult son has a professional guardian, told the Journal last week, “There’s no state agency for family members to voice their concerns if a corporate guardian is negligent or committing criminal actions.”

She said she has had no luck approaching the judge on her son’s case with her grievances.

As for the enhanced reporting, Mendiola said, “Who is going to provide accountability to make sure that the correct information (on the new forms) is reported?”

The new law requires professional conservators to post bonds upon appointment, but Mendiola questioned why the cost will be borne by the incapacitated person instead of the conservator.

Gaelle McConnell, an Albuquerque attorney who headed the Supreme Court committee that proposed the eight new forms and five new guardianship/conservatorship rules, told the Journal the bond “protects the (incapacitated) person” so it makes sense to deduct the surety fee from the assets, rather than charge the conservator. She noted that a judge can make an alternative asset protection arrangement under the new law or decide a bond isn’t necessary.

New forms

The new reporting forms are 12 pages long for guardians, and 15 pages for conservators – compared to the current forms that ask 17 questions of guardians and a mere 10 questions of conservators every year.

Bacon told the Journal the changes “will make it easier for judges to get a handle on the details (of a continuing guardianship or conservatorship).” In her Albuquerque court, she schedules a hearing if she has questions or sees discrepancies in reports filed by a guardians or conservator.

“Not all judges ask those questions,” Bacon conceded. “This (new reporting mandate) forces the information to be put in front of them.”

She said the state Auditor’s Office helped design the questions asked of conservators “to make sure we have a picture of assets and liabilities and to inform the judge and to be useful to an auditor. We wanted to be very careful that it (the disclosure) works if somebody audits the case.”

Meanwhile, district judges around the state have undergone training about the new law and rules.

McConnell also served on last year’s Supreme Court commission that spent nine months studying the issue before issuing its own recommendations.

“Frankly, from hearing the public testimony, it was clear to me that something had to happen,” McConnell said.

The Supreme Court rules committee, appointed earlier this year, isn’t finished with its work, McConnell said. Her group will explore issues the guardianship commission last year recommended for further study – such as certification of guardians, and improving the court appointment process for guardians ad litem and court visitors. By law, those two professionals advise the judge on whether a guardianship is needed and whether the guardian proposed is appropriate.

But the process has been criticized as lacking objectivity, because judges typically appoint whomever is nominated by the attorney seeking the guardianship or conservatorship.

Smith, whose mother died in 2012, said dealing with an incapacitated loved one is “always inherently painful but it’s necessary and it’s going to become more necessary as baby boomers come down the pike.”

“More of us are going to be facing it – either for ourselves or our loved ones.”

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