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Who Guards the Guardians: Guardianship reforms DOA in New Mexico

CORRECTION: This story has been corrected to show the 2016 Guardianship bill did receive House committee approval, but never made it to the Senate.

SECOND IN TWO PARTS

Copyright © 2017 Albuquerque Journal

Efforts to reform New Mexico’s system of court-approved guardianships for the elderly have met with frustration and failure – to the chagrin of families caught up in a system many say leaves them as helpless bystanders when a loved one is declared a ward of the court with no say in his or her life.

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No one knows that frustration better than former Rep. Conrad James, an Albuquerque Republican.

James, who did not seek re-election last year, carried legislation in 2016 that addressed a frequently heard complaint: that guardians or conservators who become annoyed with family members can – and do – arbitrarily bar (or sharply curtail) them from visiting an aging family member who has become a “protected person.”

James’ bill would have required judicial approval before visitation could be cut off – and only if a clear danger to the ward could be demonstrated.

Former Rep. Conrad James

Former Rep. Conrad James

Conrad’s colleagues in two house committees voted to approve the bill and it passed out of the full house toward the end of the 2016 session. It went no further as the Senate did not have time to consider it.”

“I have carried a number of controversial bills,” James told the Journal. “I have never received, or seen in a committee hearing, the kind of anger and blowback that I saw with this bill – one that I thought was a very commonsense, straightforward bill.”

James attributed the blowback to lawyer-lobbyists who work in the elder guardianship system or who have associates who do.

The legislation’s fate was particularly disheartening to reform advocates, who say the best safeguard against elder exploitation is to keep a trusted family member close to the protected person as an extra set of eyes. In the past, some elders who have been isolated from their families have died without being able to see their adult children for months or years.

James isn’t alone in watching a guardianship reform proposal killed. Other lawmakers who have sought to address complaints about the guardianship system in previous years have fared no better.

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And lawmakers considering introduction of elder guardian reform measures this year threw in the towel before they even introduced the legislation, when leadership in the Democrat-controlled Legislature made it clear no legislative solutions would be entertained this session.

Can’t wait

The Albuquerque Journal published a six-part investigative series on the guardianship system late last year, detailing how it is administered and the devastating effects critics say it can have on an aging person who becomes a “ward of the court” and their families.

James, a Sandia National Laboratories scientist who has also served as a University of New Mexico regent, is among those who believe reform is urgently needed in a system that routinely declares mentally frail elders “incapacitated” and with that designation strips them of their civil rights. They no longer have the power to manage their own affairs – from health care to finances.

“I’m a scientist and engineer,” James said. “I’m perfectly willing to have a 60 percent solution to get the ball rolling on something. Some legislators want to get it to 80 or 85 percent.”

“We can’t sit around and wait for perfect.”

He worries that bad things could happen to good families while solutions to the problem are put off year after year.

Secrecy rules

Acting at the request of a lawyer – who often represents one family member who is aligned against others – judges typically appoint strangers recommended by that lawyer to take both personal and financial control of an elderly person’s life. In many cases, there is little subsequent court supervision or auditing of their actions.

The court appointees – guardians, conservators and the support staff they hire – can earn up to $300 an hour, all paid for out of the estate of the ward. That’s despite the fact there are no licensing requirements to serve as a guardian, although guardians are supposed to watch a video.

Many families have told the Journal that once enmeshed in the system they suddenly found themselves having no say in their loved one’s fate, and the cottage industry of for-profit workers seemed uncaring and impervious to their suggestions or complaints about the elder’s care.

Family members have complained they were left helpless on the sidelines as court appointees drained their elder’s accounts and diminished or depleted their inheritance. A carefully crafted Last Will and Testament, a Power of Attorney designation and estate plans can be ignored by the appointees.

And it is a system cloaked in secrecy.

Citing state law, judges routinely “sequester” or seal the cases, citing the elder person’s privacy. There are virtually no public records and participants have said they were warned of stiff penalties if they reveal details of the case to outsiders.

A New Mexico statute says the name of the incapacitated person along with the docket sheet, which lists actions taken, are public record. But that information is not available online and clerks in one case said recently they hadn’t even known the law existed until a Journal reporter showed them the statute.

At that point, after conferring, they agreed to produce the required information.

Wary legislator

After retiring from the Legislature last year, James asked Rep. Sarah Maestas Barnes, R-Albuquerque, to carry the visitation bill during the current session. Barnes, a lawyer, told the Journal that the sheer amount of criticism James received last year made her wary.

Rep. Sarah Maestas Barnes

“There was such major pushback. A ton of attorneys came in, and really pushed back,” she said during a telephone interview. “This is essentially their livelihood and I guess they thought it was going to be detrimental to them. I see a major conflict in that.”

Barnes feels passionately about enacting safeguards for New Mexico’s elderly who have been made wards of the court. When she learned Sen. James White, an Albuquerque Republican who represents parts of Bernalillo, Torrance, Sandoval and Santa Fe counties, was drafting three guardianship-related bills and hoped to introduce them this year, she agreed to support them in the House.

But White, who is not an attorney, said he didn’t get far.

“I was not encouraged that any (bills) would get through this session,” he said of his consultations with other lawmakers who have experience in probate and guardian law. He said they told him it was a “complicated issue” and any legislation required “a lot more work … and discussion.”

White says among those he consulted was Senate Majority Leader Peter Wirth, D-Santa Fe, who convinced him to abandon his idea this year.

Senate Majority Leader Peter Wirth

Senate Majority Leader Peter Wirth

Wirth, whose Santa Fe-based law firm handles guardian and conservatorship cases, did not respond to multiple requests for comment. But several Roundhouse regulars quote Wirth as saying he plans to wait for long-anticipated guardian reform language to be developed by a legal body in Chicago called the Uniform Law Commission.

Wirth has told advocates and other legislators that when the ULC perfects its recommendation, the Legislature will consider it.

Santa Fe attorney Jack Burton is one of a dozen New Mexico lawyers who voluntarily serve as a ULC commissioner. He is not in the Legislature and not involved in updating ULC’s guardianship language but has testified before committees considering guardian reform legislation. Burton defends the legislative leadership’s decision not to tackle changes on its own.

“This is a very complex field and a very difficult field,” Burton told the Journal. “Uniform laws, by and large, are well drafted and the reason they take so long (is that they) consult with experts from all over the country.”

“We have found uniform laws are worth waiting for,” Burton added. “Simple solutions for complex problems create chaos.”

Years of inaction

The Legislature has been aware of complaints with the elder guardianship system since at least 2008 when the first of three working groups was established to study the problem.

Retired Judge Ted Baca

Retired Judge Ted Baca

Ted Baca, now retired as chief judge of the 2nd Judicial District, was among the first to recognize there were problems.

In 2008, Baca enlisted a group of volunteer attorneys to audit several dozen open elder guardian cases. That review found “35 percent and maybe more” had significant problems – wards were living in dilapidated surroundings without adequate food, some had been abandoned by their guardians and others had died with no way to discover where their assets were, the judge said.

There were, according to Baca, “enough cases that we realized we should take it as an alarm.”

For three or four consecutive years the court asked the Legislature for $250,000 to fund a larger study of the problems. No money was approved.

Sen. Jerry Ortiz y Pino

Sen. Jerry Ortiz y Pino

Sen. Jerry Ortiz y Pino, D-Albuquerque, a social worker by trade, recalled that several times over the past decade he and some colleagues tried to propose fixes to the system only to be confronted by attorneys who “went ballistic” at the mention of reforms.

Among changes considered and ignored, Ortiz y Pino said, were better auditing of exactly how appointees spent the elder’s money and fairer rules for visitation by adult children of wards when there was a dispute.

In 2013, Ortiz y Pino sponsored the establishment of a task force to look into the growing number of family complaints. But when the 16-member group was appointed, not one family member or activist group was included. The panel was primarily populated by state bureaucrats and those who worked in the for-profit elder care industry.

They recommended no changes in the system.

“We pretend like we have a guardian system and there’s nothing in place,” Ortiz y Pino told the Journal. “We are faking it.”


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