Guardian reforms bring more oversight

Copyright © 2021 Albuquerque Journal

Gov. Michelle Lujan Grisham

An attempt by Gov. Michelle Lujan Grisham’s administration to push its own adult guardianship reform measure appeared dead last legislative session after running afoul of state judges who were concerned about its constitutionality.

What resulted – looking very little like the original bill – is a comprehensive new law that promises thousands of incapacitated adults under court-ordered guardianship more oversight of their cases by a new team of court auditors. It also sets up a pilot program in which volunteer court visitors will meet with those under guardianship to ensure their welfare.

Lujan Grisham personally worked with judges, the state Office of Guardianship, and legislators on the reforms, her office said, and signed the measure into law April 8.

“This legislation will help ensure that our guardianship system provides adults with the least restrictive alternatives to managing and living their lives,” she said in a message. “We must commit to the ongoing work of reforming and evolving beyond guardianship.”

Come July 1 when the law goes into effect, the State Auditor’s Office will review all annual reports filed by conservators appointed by the courts to manage an incapacitated adult’s finances and assets. And the auditor will have the power to subpoena bank and other records.

Especially heartening to disability advocates is a new provision requiring that state judges be informed whether any less restrictive alternatives are available before turning over an incapacitated person’s life and bank accounts to the control of third-party guardians or conservators.

Another feature of the new law, a priority of the governor, creates a standing committee representing 19 stakeholder groups, including two “protected people,” to meet quarterly to study future guardianship reforms.

The legislation marks the third wave of reforms since the Journal launched “Who Guards the Guardians?,” a series of investigative articles, beginning in November 2016.

The complex and still mostly secret legal process has been criticized in New Mexico and elsewhere as ripe for corruption given the power of guardians and conservators appointed to make decisions for those deemed incapacitated – typically older adults.

Most records in such court cases are confidential to protect a protected person’s privacy, although some hearings in New Mexico are now public, thanks to an earlier reform law.

Since 2018, the Legislature and courts have continued to study ways to close loopholes and improve the system through a steering committee created by the state Supreme Court.

The latest reforms weren’t on the radar of that committee, said state Rep. Daymon Ely, D-Corrales, a committee member who also has sponsored prior guardianship reform laws.

Rep. Daymon Ely

“This is kind of a fresh look at an old problem to see if we can make it more robust. I was really shocked at how creative it was,” Ely said in an interview last week.

Licensing proposal

The 26-page comprehensive package grew out of a 14-page bill that called for the licensing of guardians and conservators and put the state Office of Guardianship in charge of the process. That agency, which represents nearly 1,000 low-income people in guardianship cases, would have had the power to suspend or revoke licenses if an investigation warranted.

But the bill was essentially dead on arrival at its first legislative committee hearing on March 5. At the hearing, the Office of Guardianship bill was tabled and the licensing provision eliminated from the committee’s substitute bill.

“The courts had a problem in the sense that this would create a separation-of-powers conflict because the courts appoint guardians,” state Rep. Marian Matthews, D-Albuquerque, said at the time. “They were fairly adamant that was something that we could not do appropriately.”

Currently, the state requires certification of guardians by a national group, but not licensing.

Matthews, a lawyer, said she was approached by the administration to sponsor the bill, and met several times with the governor. Four other lawmakers became co-sponsors, and the bill passed both houses without opposition.

Supreme Court Justice Shannon Bacon said last week that the judiciary endorsed the overhauled bill, especially because it included funding for a new division of the Administrative Office of the Courts to audit guardianship files. That means three full-time employees will review the estimated 500 reports filed each month by guardians and conservators required to update the courts about the welfare and finances of the person under guardianship.

Supreme Court Justice Shannon Bacon

“Their (the auditors’) responsibility year in and year out is going to be providing an extra set of eyes on every annual report filed while looking back in the court file” to ensure nothing is missed, said Bacon, a former state district judge who has been a longtime advocate for reform.

Currently, judges have no investigators or other staff to help review the accuracy of such reports, which are essentially the only routine monitoring of the nearly 5,000 active guardianship or conservatorship cases in New Mexico.

District Judge Nancy Franchini of Albuquerque said during a March legislative hearing that she has more than 200 guardianship and conservatorship cases in her court.

“This is a good bill; it’s going to forward guardianship,” she said, “but it’s all predicated on the required funding that has to be recurring.”

Court visitors

Families have long complained they didn’t realize the ramifications of resorting to the drastic legal action of placing a loved one, perhaps with memory loss or dementia and unable to care for themselves, in a legal guardianship.

While some family members or friends become legal guardians, others have watched helplessly as professional guardians appointed by the courts have sold off a loved one’s possessions and homes, without considering or perhaps disregarding the family members’ input.

Alice Liu McCoy, the executive director of the New Mexico Developmental Disabilities Planning Council, which oversees the state Office of Guardianship, told lawmakers earlier this year that the guardianship office will be required to submit an annual report and recruit and train court visitors for the new program, which will start in several court jurisdictions in the state.

“We envision a system where court visitors will be able to visit every single person (under guardianship) in their homes,” she said. “They will be the eyes and ears on the ground.”

Feliz Angelica Rael

Albuquerque elder law attorney Feliz A. Rael testified in support of the revamped bill at the Legislature in March. “I wish we had a pilot program for court visitors a long time ago,” she said. “Honestly, I think it has the potential to save lives.”

Laurie Hedrich, president of the New Mexico Guardianship Association, told the House State Government Elections and Indian Affairs Committee her group supported the measure, “particularly because it encourages deliberate thinking of least restrictive alternatives, which should formalize what should be happening anyway in protected proceedings.”

“It is our hope it will result in less guardianships being granted where there are alternatives, the use of limited guardianships where full guardianship is unnecessary, and termination of guardianships in cases where it’s no longer necessary,” she said.

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