Lawmakers close loophole in guardianship system - Albuquerque Journal

Lawmakers close loophole in guardianship system

Flags hang at the Roundhouse Rotunda. The Legislature has unanimously approved a bill to provide better protections to New Mexico’s most vulnerable citizens by tightening up emergency guardianships. (Eddie Moore/Albuquerque Journal)

Copyright © 2022 Albuquerque Journal

Journal investigative reporter

The process of taking away someone’s liberties in New Mexico, at least temporarily, sometimes has been as simple as alleging they weren’t capable of making their own decisions and were in danger or being exploited.

A temporary guardian could be appointed by a judge without the alleged incapacitated person or their family being notified; they could be forced out of their homes, their bank accounts transferred and their property liquidated. And all this could occur before they ever appear before the judge, who would eventually evaluate the evidence and decide if, in fact, they needed a guardian.

Now, under the latest reform to the state’s adult guardianship system, the state Legislature has unanimously approved a bill to provide better protections to New Mexico’s most vulnerable citizens by tightening up the emergency process.

“Right now, it’s too loose, frankly,” said state District Judge Nancy Franchini of Albuquerque in recent legislative testimony. “We want to ensure that protected people are part of the process sooner rather than later, and are seen by a judge sooner rather than later.’

Franchini chairs a new 25-member guardianship study group that proposed the measure, which still needs the approval of Gov. Michelle Lujan Grisham.

The bill requires judges who approve a temporary guardianship to hold a hearing within 10 days to listen to the evidence. Currently, state law requires hearings to be held “as soon as possible.” But sometimes months elapse before a hearing is held.

“This is an emergency proceeding that should have a hearing very, very quickly because we’re taking somebody’s fundamental liberties away,” said state Supreme Court Justice Shannon Bacon during a hearing before the Senate Judiciary Committee earlier this month.

Another key feature of the bill: temporary guardians would be barred from liquidating the protected person’s property, or moving them out of their residences without express approval from the judge. There is no such prohibition in current law.

And families, or even a friend or neighbor, would have standing to appear at the 10-day hearing and ask the judge to modify or dissolve the temporary guardianship.

The measure was placed on this year’s legislative agenda by Lujan Grisham.

Under the current system,”There’s no oversight over the temporary guardian (prior to a hearing in the case) and this leads to an abuse in the system. We have lawyers who get temporary guardianships, and then just kick the can down the road …” Franchini told lawmakers.

Typically, family members, friends or interested parties have been able to petition the court, through an attorney, to place someone under a temporary guardianship by alleging immediate or irreparable harm would occur if the guardianship weren’t granted. That can be necessary to protect a person from harm or their bank accounts siphoned, but abuses have occurred.

“I have heard of a guardianship that happened in this state where a person was put under a temporary guardianship and the temporary guardian never went to see the protected person. And during that time, the protected person passed away without ever seeing the guardian,” said Franchini, in recent legislative testimony. “That just can’t happen; that just can’t happen.”

Moreover, some hospitals in New Mexico have abused the process by going to court when the alleged incapacitated person “isn’t able to pay their bills,” Franchini said. “What the hospital is doing is filing for a temporary guardianship to get the person out of the hospital… so they can get money basically.”

Narrowing the scope

Lawmakers and the state’s judiciary have been overhauling the adult guardianship system since 2018, after the Journal began an ongoing investigation into the legal process that critics complained was ripe for corruption given the power granted to court-appointed guardians and conservators.

Some families of incapacitated adults contended they were barred or restricted by guardians from visiting their loved ones.

With the federal criminal fraud indictments of principals of two major guardianship firms fueling the debate, lawmakers and the judiciary adopted numerous reforms aimed at transparency, accountability, more family involvement and more oversight. But issues with temporary guardianships had not been addressed until now.

Bacon, who has spearheaded the yearslong guardianship reform efforts for the judiciary, said temporary guardianships are “meant to be the exception” to the usual process of appointing a permanent guardian.

She told members of the Senate Judiciary Committee earlier this month that the number of temporary guardianships filed annually in New Mexico is “in excess of 800. It should be about eight.”

She said by narrowing the scope in which such temporary guardianship proceedings can occur, judges should have the time to hear such cases within 10 days. And she said training judges statewide will occur to let them know “this is a hard and fast rule.”

Jim Jackson, former executive director of Disability Rights New Mexico, told lawmakers that temporary guardianships have “unfortunately been occasionally used or misused to speed up the process, or lock in the selection of a guardian or simply extend the process way beyond what’s been usually intended.”

“It’s really important to have these new protections,” Jackson said, given that under the current system, a temporary guardian “can be appointed just based solely on the allegations of a petition that’s filed … without an opportunity for the allegedly incapacitated person to present any kind of rebuttal.”

One of the bill’s sponsors, state Sen. Katy Duhigg, D-Albuquerque, told the Journal the bill is important because it “requires – for the first time – that temporary guardians and conservators account for the decisions they make and the actions they take.” A report must be filed with the judge in the case within 15 days of an appointment.

Plugging two ‘important holes’

Gregory Ireland, a private guardian and conservator who serves on Franchini’s guardianship study commission, said the group is continuing to look for weaknesses in the system.

“And this bill plugs two very important holes,” Ireland said. “It stabilizes the situation so that any temporary guardians cannot dispose of property quickly,” he said.

Ireland said the measure also sets up important timelines.

“I was a prior court official, and we had an axiom in the courts that ‘what gets scheduled gets resolved.'” The bill was also endorsed by the state’s AARP chapter and the New Mexico Guardianship Association.

State Sen. Joseph Cervantes, D-Las Cruces, who chairs the Senate Judiciary Committee, said during the Feb. 5 hearing, “It’s been a concern locally. There’s been some high-profile cases and individuals who have been concerned about the (temporary guardianship) procedure and process being properly followed.”

In two cases profiled by the Journal in recent years, temporary guardians were appointed for two retirees in Las Cruces without the knowledge of their families. In each of the cases, it took several years and thousands of dollars in legal fees for the women’s sons to convince the judges in the cases to remove the corporate guardians and permit the sons to serve as guardians.

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