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New Mexico lags in guardianship reform

Copyright © 2017 Albuquerque Journal

The New Mexico Administrative Office of the Courts reported in a 2009 legislative analysis “that there is no system in place in New Mexico to assure effective oversight and monitoring of court-appointed guardians.”

a00_jd_19mar_guardianship_chartFour years later, another legislative analysis found that conservatorships and guardianships were becoming more common, but “in New Mexico, there is limited regulation of what is known as ‘corporate guardianship,’ ” which involves court appointment of a for-profit or not-for-profit entity that is paid to be the legal guardian – either from the ward’s assets or by the state.

Little has changed since then, as New Mexico lags behind other states, including Texas and California, that have made reform of the system a top priority.

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“We are focused on making sure that these people are protected, and it’s a big issue, a hot topic all throughout Texas,” said Jeff Rinard, guardianship certification program director in Texas. “Nationwide, it’s a big deal, especially as the population ages.”

But in New Mexico, which has one of the most secretive guardianship/conservatorship systems in the nation, the state doesn’t know how many people are living under a court-approved guardianship or conservatorship.

In a special project funded two years ago by the Legislature for the 2nd Judicial District, the Albuquerque-area court identified about 6,000 “active” guardianship or conservatorship cases in Bernalillo County alone, some dating back to the early 1950s. Two special masters have been spot-checking cases and have made home visits to find out if wards are OK and to check their living conditions – if they are still alive.

The rest of the state? State court officials say the courts’ computer system can only show the number of guardianship cases that have been active since 2016, but efforts are underway to improve tracking of cases prior to that time.

No records

A judge in New Mexico typically sets a 30-minute closed hearing to make a potentially life-changing, and often irrevocable, decision on whether to place an allegedly incapacitated person in the hands of a family member guardian or guardianship firm.

If the request is granted, based on reports presented to the court, the incapacitated person is stripped of virtually all his or her rights, with the guardian/conservator assuming authority to make decisions on every aspect of that person’s life and finances.

The guardianships break down into three general categories:

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• Cases in which a family member is appointed guardian, which account for the vast majority.

• Cases in which a for-profit or not-for-profit guardian is appointed for someone with few assets and is paid by the state – $3,650 a year for each incapacitated person.

• Cases in which the allegedly incapacitated person has assets and a commercial guardian/conservator is appointed and paid from the assets, often charging hundreds of dollars an hour and hiring others to provide services that could include help with personal hygiene, grocery shopping and even dog walking. Conservators have virtually total control over financial decisions.

Family members interviewed by the Journal have complained that commercial guardians/conservators ignored the incapacitated person and wasted estate assets against the wishes of that person and family members.

They said efforts to complain to the judge who made the appointment are often futile.

Among their complaints: Guardians and conservators can charge excessive fees with little justification required by the court.

And they say a family member who hires a lawyer and files a petition for guardianship is in the driver’s seat from then on, partly because judges typically appoint that lawyer’s recommended team to advise the court whether to grant a guardianship. That practice has been rejected, for example, in California, where judges use a court investigator on staff to investigate the need for a guardian.

A 2013 legislative analysis said there is no specific mechanism in New Mexico for complaints against corporate guardians who don’t have contracts with the state Office of Guardianship. Texas has overhauled its system to put licensure for guardians in place, along with a complaint system.

The Office of Guardianship, which contracts with for-profit and not-for-profit firms to provide guardian or conservator services to low-income individuals, does have the authority to investigate complaints against its guardian contractors.

But the 2013 legislative analysis said that because the office works closely with its contractors, “there is an inherent conflict of interest.”

And what about the complaints the office has investigated?

Records custodian Justin Moore told the Journal: “The Office of Guardianship has no public records showing the number of complaints filed against any particular contractor. Moreover, such complaints are exempt from inspection because they related to “client complaints against a contractor,” which he said are exempt from public inspection.

The state’s Adult Protective Services Department investigates complaints against guardians and makes referrals to the state Attorney General’s office, but a spokesman last week said the agency’s tracking doesn’t distinguish how many referrals have involved guardians.

Reforms elsewhere

A federal Governmental Accountability Office report in 2011 noted that many states reported having limited resources for monitoring guardians. But that didn’t stop some, including Delaware and Texas, from recruiting volunteers to help oversee guardians.

Delaware officials reported that their volunteers serve as liaisons between guardians and the courts, visit guardians and wards, and report to court officials about once every six months.

The National Association for Court Management noted that the court in Palm Beach County, Fla., created a guardianship fraud program that has become a model for the state of Florida.

The unit’s investigations have uncovered more than $3 million in questionable expenses and misreported assets. The program includes a hotline that allows people to anonymously report suspicious activity in guardianship cases.

In New Mexico, the current method of court oversight involves a guardian or conservator filling out a form sanctioned by the state Supreme Court that shows how the wards are doing or what expenses have been incurred.

But those forms didn’t seem thorough enough, according to some judges interviewed.

So the 2nd Judicial District Court in Albuquerque, beginning in January, began using an additional form to obtain more financial information from conservators.

One Albuquerque judge said she wishes her court had the funds to hire a forensic accountant to scrutinize some of the conservatorship cases.

Licensing

Other states require licensing or certification of guardians, which typically requires an examination.

New Mexico has no such requirement in law, said Angela Burkett, of the Center for Guardian Certification, based in Harrisburg, Pa.

The New Mexico Office of Guardianship does require in its contracts with guardianship agencies that their employees obtain certification from a national firm.

The certification center in Pennsylvania looks into complaints against guardians it certifies, and last year the organization suspended the certification of a Las Cruces-area for-profit guardian for “prohibited conduct.”

Meanwhile, the national Center for Elders and Courts says the qualifications of guardians and conservators, or lack thereof, have been the subject of federal inquiries.

For example, in 2010, at the request of the U.S. Senate Special Committee on Aging, the Government Accountability Office investigated the financial exploitation, neglect and abuse of seniors in the guardianship system. GAO investigators focused on 20 cases in which guardians stole or improperly obtained assets from incapacitated victims.

In the majority of those cases, the GAO found the potential guardians were inadequately screened and there was insufficient oversight of guardians after appointment.

Furthermore, the GAO, using fictitious identities, obtained guardianship certifications or met certification requirements in four separate states. None of the courts or certification organizations used by those states checked the credit history or validated the Social Security numbers of the fictitious applicants.

Though many states do not require financial background checks of guardians or conservators, some states, such as Colorado, do ask for a credit report. In Wisconsin, a guardian must report if he or she filed for bankruptcy protection.

There is no such requirement in New Mexico.

Background checks

By certifying and licensing guardians, Texas has a vehicle by which to investigate complaints, and in recent years several investigations have led to revocations of guardians’ state licenses.

Moreover, in Texas, guardians are required to post a bond, and even the probate judge on a guardianship/conservatorship case has to be bonded. Currently, there is a bill in the Texas Legislature to increase the amount of the bond judges who hear guardianship cases must post to up to $250,000.

The measure aims to cover any potential losses caused by a judge’s gross negligence in performing duties of his office. The assets of people under guardianship in Texas are worth approximately $6 billion, according to one recent estimate.

Certification director Rinard said the reforms in Texas have been spearheaded by the judiciary, which has been working with the Legislature to improve the system,

Meanwhile, New Mexico’s lawmakers to date have made the posting of bonds by guardians optional.

Yet in cases in which the Department of Veterans Services acts as a personal representative or conservator, state law mandates the department shall post with the secretary of state a corporate surety bond of $500,000.

“The bond shall be conditioned upon the faithful discharge of the duties of the department as personal representative or conservator and shall inure to the use and benefit of each person or estate for whom the department is appointed to act,” the law says.

Secret system

Some critics of New Mexico’s system say more oversight requires more transparency.

New Mexico law allows public access to the name of an incapacitated person appointed a guardian, and the court docket sheet that lists actions taken in a guardianship or conservatorship case is also public record – although many clerks have not been aware of this and have denied even that limited request.

Public access to guardianship documents was among the questions posed of court officials around the country in a 2014 survey by the Administrative Conference of the United States. Of the 859 state court officials who responded, more than 60 percent reported “all or most guardianship files are open to the public,” except for confidential or sensitive information.

Individual state responses weren’t provided, but one Albuquerque civil court judge said she would put New Mexico in the category of respondents who said their guardianship/conservatorship court files are “uniformingly sealed and not available to the public.” The survey found only 8 percent of judicial and court staff nationwide adhered to such a policy.

Spot checks

Amanda Frazier, one of the special masters helping review guardianship cases in the 2nd Judicial District, said in an email that no serious problems have been uncovered by the spot checks. Since most guardians are relatives, she told the Journal, the checks have shown “a need for better resources and training that would help these families.”

The spot checks and home visits also allow the special masters “to spot potentially harmful trends with different corporate guardians and conservators, as they are in a unique position to view how the decisions of corporate guardians and conservators impact the day-to-day living of the Incapacitated Person,” she said.

Currently, the state requires guardians to report to the court within 90 days of appointment, and every year thereafter. Such reporting wasn’t always required in the past. Barry Massey, spokesman for the state Administrative Office of the Courts, said courts around the state are trying to update their case management to better track older cases. So far, he said, the courts’ computer system hasn’t been successful in detecting cases where a guardian has failed to file an annual report.


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