NM system appears to favor first petitioner - Albuquerque Journal

NM system appears to favor first petitioner

Mary Louise Terry’s case was one of 415 filed statewide in 2016 seeking court approval to place an adult under guardianship or conservatorship or both, according to a spokesman for the New Mexico Administrative Office of the Courts.

Her case exemplifies the unwritten practice in New Mexico that critics say stacks the deck in favor of the family members or others who go to court to try to have a person declared incapacitated and placed under a guardianship/conservatorship.

In New Mexico, the person who files the petition for guardianship/conservatorship can nominate the three people who will advise the judge on whether to issue a guardianship. The services of those three advisers and the guardianship company are typically paid out of the assets of the incapacitated person.

“To get what you want, you know exactly who to nominate,” said one critic of the system.

That’s not the case elsewhere. In California, for example, independent probate court investigators who are court employees first gather facts on whether a conservatorship is in the best interest of an alleged incapacitated person, then make a recommendation to the judge.

New Mexico probate law doesn’t require a petitioner to nominate the group of ostensibly objective advisers. But most often, judges in New Mexico agree to appoint the people who are recommended.

At least one judge in Albuquerque is known for selecting his own panel of advisers, who by law are to include a guardian ad litem attorney representing the alleged incapacitated person; a qualified health care professional; and a court visitor. The visitor is supposed to evaluate the needs of the alleged incapacitated person and the appropriateness of the proposed guardian or conservator.

In Mary Terry’s case, her daughter-in-law, Lois Painter, asked Valencia County district judge Allen R. Smith to appoint a different guardian ad litem attorney for Terry.

Painter said Terry’s family in New Mexico didn’t think that Albuquerque attorney Barbara Buck “was acting in Mother’s best interest.” Painter said her request was denied.

Buck last week didn’t return Journal calls seeking comment.

Buck’s role in the case ended after the judge in April 2016 agreed to appoint CNRAG, Inc., a professional company, to perform guardianship/conservatorship duties.

Buck wasn’t involved in the subsequent financial oversight and other actions of CNRAG, Inc., that have been criticized by some of Terry’s New Mexico family.

By contrast, in California, guardian ad litem attorneys are appointed only on a case-by-case basis.

Judge Steven Gevercer
Judge Steven Gevercer

“We appoint the next GAL in line on our appointment list, and do not accept recommendations from the parties,” Sacramento County Superior Court Judge Steven M. Gevercer said in an email.

Without the research by his probate court investigators, Gevercer told the Journal, “the Court would not be presented with all relevant information and the quality of decision-making would suffer.” The California court charges a fee for investigators’ services for “court users who have the ability to pay,” he added.

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