Guardianship reforms’ next phase ushered in

Copyright © 2018 Albuquerque Journal

With a new law and a million dollars for implementation, top state and judicial officials on Friday publicly ushered in a new phase of reforming the state’s adult guardianship system that aims to find out how many incapacitated adults in New Mexico are under court protection and assess whether their finances are safe.

The one-time legislative funding will pay for staff to sift through about 20,000 court files to find out how many people are under guardianship and conservatorships, and $300,000 will be devoted to the hiring of three auditors by the State Auditor’s Office for random compliance audits of contract guardians working for the state-funded guardianship program for low-income people.

The Auditor’s Office will also be on call to conduct audits of guardian or conservator cases referred by judges or, in some cases, by the public.

“I want you to know that the three branches of government have come together to solve the problem,” said state Supreme Court Chief Justice Judith Nakamura, whose court led the reform effort. She appeared Friday with state Auditor Wayne Johnson, state Sen. Jim White, R-Albuquerque, state Rep. Daymon Ely, D-Corrales, and state District Judge Shannon Bacon of Albuquerque.

For years, courts have placed people deemed incapacitated, such as those with dementia or brain trauma, under legal guardianship or conservatorships if they are unable to make decisions about their care or manage their finances.

But the system, here and around the country, has come under criticism for lack of oversight by the courts and inadequate accountability, and in some cases malfeasance, by some professional court-appointed guardians.

Nakamura said Friday that the Legislature’s “historic” reforms, accompanied by new court rules, are “significant improvements” that will provide stricter accountability and greater transparency.

Since the law took effect July 1, hearings in the traditionally closed guardianship cases are open to the public and families now have greater opportunity to view confidential reports filed in their loved ones’ cases, if a judge allows.

Guardians no longer have “unilateral” ability to limit visitation by relatives, which Bacon said “created an environment for exploitation.” Unless a judge decides otherwise, financial bonds will also be required of conservators managing an incapacitated person’s assets.

Johnson, who volunteered his agency to help in the reform effort, said, “This is the beginning of the process. I don’t want you to think that this is the end of the road.”

A provision in the new law permits audits of the yearly reports guardians and conservators must file with the court about the incapacitated person’s welfare and assets and expenditures. The law also requires expanded reporting, but that will be phased in as guardians’ and conservators’ annual reports come due.

Random audits of the 20 or so corporate guardianship firms that work for the state’s Office of Guardianship will be undertaken this year.

The audits could include a review of financial transactions undertaken on behalf of the protected person and a review of any grievances filed against the contractor. About 900 incapacitated people are served by the program.

But Johnson said there are legislative fixes needed before his office can initiate its own audits of guardian/conservator cases not involving state funds. Asked whether $300,000 is enough to perform the random audits, Johnson replied, “I hope so.”

He said his audit team will still be able to review cases referred by the court or for which the court has permitted review. Johnson promised to make public reports about the audits, removing confidential information.

Nakamura said the Supreme Court first learned about the depth of the problem from stories published by the Albuquerque Journal, which documented the “painful” experience of families whose loved ones are under corporate guardianships or conservatorships.

“We all read about the horrors some citizens encounter,” Nakamura said, including cases “to put it bluntly, that had fallen through the cracks.”

White, who spearheaded the reform bill unanimously approved by the Legislature in February, said Friday, “We’ve changed the system, not in great volumes but in some details. We want to get the word out both for those doing the guarding and those being guarded.” He added, “We may have to make further changes in future legislation.”

Ely helped amend White’s bill for House approval. He said Friday that most guardians and conservators are dedicated and honest, but added, “This is the beginning of a process to protect the public from the crooks, the bad people (who exploit the incapacitated).”

Just a year ago, federal authorities in New Mexico announced criminal investigations of Ayudando Guardians and Desert State Life Management, which managed conservatorships and other accounts for incapacitated people. The U.S. Attorney’s Office filed fraud and other charges against the principals in both of those now-defunct firms, who are accused of stealing millions of dollars from clients.

While technology impediments have kept the courts from identifying how many guardianship or conservatorship cases are active, part of the special $1 million funding will pay for a special case review that could take six months.

Beyond the new law, Nakamura echoed White and others in pledging to continue to make New Mexico’s guardianship system better.

There is likely to be a need for special funding again next year, Nakamura and White said, depending on what’s learned from audits and other reforms.

But, Nakamura added, “We’re in much better shape today than we were last December (prior to the legislative session.)”

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