The years-long overhaul of guardianships in New Mexico most recently has focused on rules related to emergency appointments of temporary guardians, a key source of weakness in the system of protecting vulnerable adults.
Recent high-profile cases have exposed how easily a person’s liberties can be stripped away — and how difficult it can be for that person to reclaim some say in how their lives are arranged following an emergency intervention.
In two cases profiled by the Journal, temporary guardians were appointed for retirees in Las Cruces without the knowledge of their families. In each case, 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.
Lawmakers and the judiciary have been reforming New Mexico’s adult guardianship system since 2018, after the Journal began an ongoing investigation. Critics complained the system 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 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, family involvement and oversight. But temporary guardianships had not been tackled.
Changes for the better
To date a temporary guardian can be appointed by a judge without the alleged incapacitated person or their family being notified; they can be forced out of their homes, their bank accounts transferred and their property liquidated. And all this can occur before they ever appear before the judge, who would eventually evaluate the evidence and decide if, in fact, they needed a guardian.
Now, the Legislature has unanimously approved a bill requiring 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, during which temporary guardians have had wide latitude to make life-altering changes on a protected person’s behalf.
The measure still needs the approval of Gov. Michelle Lujan Grisham, but she paved the way for the law’s creation by adding its proposal to the list of bills to be considered during the recent short session. The governor (a lawyer who is also a caregiver for her mother) is sure to appreciate the protections afforded by tightening up of the emergency process.
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, 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.
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.
Temporary guardianships are meant to be a rare exception to the usual process of appointing a permanent guardian. Supreme Court Justice Shannon Bacon told members of the Senate Judiciary Committee there should be about eight temporary guardianships filed annually in the state. Instead there are more than 800.
The bill’s endorsement by the state AARP chapter and N.M. Guardianship Association is well earned. It increases oversight over the temporary guardian, establishes a firm timeline, requires a clear determination of a need for a guardian early and provides more opportunities for an allegedly incapacitated person to rebut allegations.
It will be tougher for the process to be abused once the governor signs this bill into law.
This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.