Copyright © 2021 Albuquerque Journal
Over the past year, dozens of people in New Mexico alleged to be incapacitated found themselves under the control of a corporate guardian – often a stranger – without prior notice or even a court hearing after a judge was told they were in danger of immediate and irreparable harm.
Permitting such temporary emergency guardianships is considered necessary in some cases. But advocates of guardianship reform, and a state Supreme Court justice, say the long-standing emergency process has been abused – sometimes to the detriment of so-called protected persons and their loved ones.
A new state Supreme Court-appointed study group hopes lawmakers in January will put more legal protections in place for people who end up in a temporary guardianship or conservatorship.
That legal action typically results in the immediate loss of many of the protected person’s rights and autonomy, and has made it difficult for families or loved ones to undo or modify once in place.
“We want to have a lot of extra safeguards in place so that it cannot be abused by anybody, recognizing that there still needs to be a path for that which is a true emergency,” state Supreme Court Justice Shannon Bacon told a legislative committee last August.
The proposed legislative changes were recommended earlier this month by the new 24-member guardianship study group that includes attorneys, guardians and judges. The group is called WINGS, for working interdisciplinary network of guardianship stakeholders.
Gov. Michelle Lujan Grisham would have to place the proposed legislation on her agenda for the 30-day session that begins Jan. 18, which is uncertain. Given the recent record revenue projections, legislators will already have a “weighty agenda” to address, a governor’s spokeswoman said last week.
“That being said, we are reviewing proposals on the issue of guardianship and are engaged in conversations with stakeholders and legislative leadership,” said spokeswoman Nora Meyers Sackett.
The proposed legislation would require more court oversight at the onset of a temporary guardianship, and more reporting by an appointed guardian.
Currently, there is “little to no oversight at the beginning of any particular case and it leads to potentially bad outcomes,” Bacon said during a recent WINGS meeting.
The proposed amendments to state law would require a judge to hold a hearing within 10 days after a temporary guardianship is granted by a court. The hearing is to decide whether the temporary guardianship should continue and all interested parties could attend.
Currently, the law sets no deadline for the initial hearing and months can elapse before an alleged incapacitated person appears before a judge.
The proposed reform also would shorten the length of a temporary guardianship or conservatorship to a maximum of 30 days. If a hearing is held and there is good cause, a 60-day extension can be granted.
Current law states that a temporary guardianship shall not exceed 60 days, except that upon order of the court, the temporary guardianship may be extended for not more than 30 days.
Temporary guardians or conservators, who are appointed to oversee the finances of an alleged incapacitated person, would be barred from selling or disposing of that person’s property without specific authorization from the court.
Bacon, a former state district judge in Albuquerque, said in the past “I would get an emergency petition (that) would allege that Mom is in a nursing home and her son has gotten a hold of her debit card and is withdrawing funds as fast as he can. So let’s put a stop to that through an emergency petition, and that’s appropriate.”
But there have been inappropriate uses, she added.
“Attorneys will file for emergency guardianship and it may be legitimate, the need, but they’re just not doing their job and they’ll say, give me another 30 days, give me another 60 days, and the judge will kick the can down the road and not be presented with the proof that is necessary, the clear and convincing evidence that the individual is in need of a guardianship or conservatorship,” Bacon told the legislative committee last August.
Under state law, any interested person can petition a court to place someone under temporary guardianship. Often times, such petitions allege the person is unable to handle their own affairs and need immediate protection for their own safety or to prevent financial exploitation.
That process, according to Bacon, “allows somebody on a very bare bones petition to assert that a guardian needs to be appointed immediately and we’ll come back to you later and prove it up.”
Judges aren’t required to hold a hearing or notify the person or that person’s family members before granting an emergency petition, which has resulted in alleged incapacitated people being removed from their homes, their bank accounts frozen or transferred and their belongings seized.
The Journal in recent years has reported on cases in which close family members learned after the fact that their loved one had been placed under a temporary guardianship with a professional guardianship company and have had to wait months to appear before a judge to contest the guardianship, its conditions or the specific guardian or conservator appointed.
One such recent case involved a retired educator from Las Cruces, Dorris Hamilton, whose son spent nearly two years trying to convince a judge to permit him, rather than a professional guardian firm, to become his mother’s guardian.
An attorney had filed a petition contending Hamilton needed an emergency guardianship because she had memory loss, vascular dementia, exhibited hoarding behaviors and “may” have been the subject of financial exploitation. Hamilton’s son, who lived out of state at the time, contended he learned several weeks later about what had occurred and never sanctioned the petition.
By law, those appointed to advise the judge on whether a person should be placed under a guardianship can collect fees for their service from the protected person’s estate.
The state Administrative Office of the Courts, which had identified about 6,000 adults living under a guardianship statewide as of last summer, had no data on the number of temporary emergency guardianships granted each year.
But a Journal review of online court docket sheets identified more than 60 guardianship cases filed over the past year involving the appointment of professional, nonfamily guardians.
Of those cases, the vast majority originated as temporary guardianships. And more often than not, an initial hearing in the case wasn’t held for several months. Docket sheets for cases involving nonprofessional guardians aren’t readily accessible on the state judiciary’s website.
Corporate guardians can end up being appointed in temporary emergency guardianship cases because the alleged incapacitated person has no family living close by or the person’s family members aren’t considered suitable to become guardians.
“It’s always important in the law to find an appropriate balance between those true emergency cases where an emergency temporary guardian is appointed for a very short period of time until the parties get the opportunity to go to court and discuss this in front of a judge,” said Brwyn Downing, executive director of the Senior Citizens Law Office in Albuquerque. “However, I believe it’s become more common knowledge that this has been abused in our current system.”
The fact that a family member or attorney can “go to a judge and have that judge issue an ex-parte emergency order without the person who is going to be placed under guardianship even having knowledge of this until they are served with that order is just … it can be shocking in certain cases, and totally inappropriate,” Downing told the Journal.
During the WINGS discussion on the proposed changes, Alice Liu McCoy, executive director of the state Developmental Disabilities Planning Council, supported the proposed changes.
The idea is to make a temporary guardianship “a rare instance,” she said. “This shouldn’t be a go-to proceeding.”