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New Mexico guardians get a new watchdog

Copyright © 2020 Albuquerque Journal

The New Mexico State Auditor’s Office now has a permanent watchdog function over the nearly 6,000 cases in which state district courts have appointed guardians and conservators to manage the affairs of those who are deemed incapacitated.

The announcement Thursday comes on the heels of a one-year pilot project undertaken by State Auditor Brian Colón, whose auditors found 194 “risk factors” in annual reports filed among more than 300 conservator cases sampled.

Among the risk factors cited by auditors: lack of supporting documentation, conflicting information, and assets of the protected person being understated or unaccounted for. Auditors also found instances of checks written directly to conservators or conservators charging large fees for services or reimbursement of expenses.

More than 40 letters were written to notify the judges who appointed the conservators of the “increased risks factors” discovered.

State Auditor Brian Colón

With recurring legislative funding, coupled with a green light from the judiciary, Colón’s office will now have oversight and involvement in what had traditionally been a closed system that sometimes excluded even family members of the incapacitated person.

Colón appeared with state Supreme Court Justice Shannon Bacon, a judicial leader in the state’s move to reform the guardianship system, at an Albuquerque news conference broadcast via Zoom.

“We have an opportunity to step up oversight, not just requiring that documentation, but the timeliness of the reports is critical to accountability,” Colón said. “We’ve got to fill in the cracks (in the system) so we know those most vulnerable don’t fall through.”

Conservators are appointed to make financial decisions for an incapacitated person, often times those with dementia or other impairments. Guardians are appointed to make health care and personal decisions.

Bacon said in recent years the state Legislature and the judiciary have added more transparency to the system and enhanced reporting requirements of guardians and conservators.

Judge Shannon Bacon

Now, she said, the courts plan to implement measures “to give auditors open access to guardianship and conservatorship cases.” Bacon said the state Administrative Office of the Courts has permitted the auditors special access to reports within the online court case system. Typically those reports are not public.

“We want them to be able to do random audits and go to banking institutions to review records,” Bacon said. “This ongoing process and partnership is how we increase the sunshine and avoid the abuses of the past.”

The auditor’s pilot project found a need for guardians and conservators to provide supporting documentation, instead of simply listing the amounts of assets and expenditures on standarized forms filed annually or after 90 days of appointment by a judge.

The auditor’s report also recommended “increased focus on review of financial affairs of protected persons with substantial assets.”

Critics of the system, most often family members, have complained about having little recourse if they suspect conservators are overspending and otherwise mishandling assets of an incapacitated person. Bacon and Colón urged anyone with a complaint to fill out a grievance form found on the state Supreme Court’s website.

Colón said the recent criminal sentences of two of four defendants in the now-defunct Ayudando Guardians Inc., highlight the need for more oversight in New Mexico. A federal investigation, triggered by employees coming forward, exposed a near-decade long scheme in which top officials stole $11 million from vulnerable clients who received guardian, conservator or other financial services.

“Le estoy ayudando,” Colón said Thursday. “I want to be able to say ‘I am helping.'”

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