Census projections estimate 20 percent of the population will be over the age of 65, with 19 million persons over 85, by 2030. Millions of families are currently struggling with elderly family members with diminished capacity. It’s critical that families receive accurate information regarding available resources as they make these difficult decisions involving loved ones. This difficult decision making is exacerbated by articles that distort the system by suggesting that guardianships and conservatorships will lead to abuse.
Incapacity does not develop suddenly but typically after a slow decline over a number of years. Often the incapacitated person does not recognize the incapacity. Families, faced with incredibly challenging and painful circumstances, do not always agree a loved one is incapacitated or about the level of care required. These subtleties make for challenging cases.
Once some level of incapacity is suspected or recognized, addressing the incapacity, while protecting the incapacitated person, requires action. Families must carefully consider care options, ranging from family member care, to in-home professional care, to assisted living facilities. Families sometimes need a legal avenue to accomplish this care plan.
Guardianships and conservatorships are two of the legal remedies available. About 150 to 200 guardianship and conservatorship cases are filed each year in the Second Judicial District Court, typically by a family member. Guardianships deal with the person; conservatorships with the person’s assets.
Guardianships and conservatorships provide a way for concerned family members and others to seek a court order declaring that a person is incapacitated and appointing another person, typically a family member, to protect that person and manage that person’s affairs.
Guardians and conservators are only appointed after a full hearing where the court determines capacity after hearing from medical, social work and legal professionals. The court considers the wishes of the incapacitated person and family members….
Guardians and conservators provide consistent beneficial results for families. They are responsible for assuring medical care, making living arrangements and managing the incapacitated person’s assets so that they have enough to see them through their life.
Like other court cases, some cases are problematic. Evaluating the system through an examination of one case is neither possible nor useful. These cases are complex, frequently fraught with family conflict, complications and misunderstanding. High family conflict inevitably results in expensive proceedings and sometimes the appointment of an outside professional.
The goal of the law is to protect the incapacitated person and to make sure that the person’s assets provide for their care. New Mexico law requires that the guardian and conservator report to the court within 90 days of appointment, and annually thereafter.
As part of the protection afforded under New Mexico law, the documents filed in these cases are not available for public viewing. The court file includes sensitive information and incapacitated persons are vulnerable to exploitation. Therefore it is important that certain information remains confidential to protect the dignity and privacy of the incapacitated person.
The court takes these cases, and our responsibility under the law seriously. In 2013, utilizing limited resources, the Second Judicial District Court created the Elder and Disability Initiative to effectively manage and protect persons with guardians and conservators. EDI attorneys help judges manage existing cases by reviewing files, conducting periodic home visits to ensure that individuals under protection are not being exploited and helping family guardians understand their duties. We are actively engaged in developing better methods to address and monitor these cases.
Guardianships and conservatorships are useful and necessary tools for families faced with incapacitated adults. Efforts to dissuade families from utilizing these legal remedies are misguided and irresponsible.
For a comprehensive explanation of the requirements for guardianships and conservatorships, including the rights and duties of guardians and conservators, review the New Mexico Uniform Probate Code, Sections 45-5-101, et.seq. NMSA 1978.
Also signed by Amanda Frazier and Judith Paquin, attorneys who are Elder and Disability Initiative special masters with the 2nd Judicial District Court.