Defenders of New Mexico’s system of court-appointed guardians and conservators say it works pretty well, thank you very much. Move along. Nothing to see here.
But compared to other states that have made reforms a high priority, New Mexico has a system cloaked in secrecy with little public accountability and very few avenues to complain or seek recourse. If there’s nothing to see, perhaps it’s because the system is designed that way.
So critics of the system would not be surprised by a 2009 legislative analysis in which the Administrative Office of the Courts reported there is no system in place in New Mexico “to assure effective oversight and monitoring of court-appointed guardians.”
Or by a legislative analysis four years later that said “in New Mexico, there is limited regulation of what is known as corporate guardianship.”
Those reports wouldn’t surprise Sen. Jerry Ortiz y Pino, D-Albuquerque, who told the Journal recently that we really don’t have a system. “We’re faking it.”
While legislative changes here have been beaten back at the behest of the corporate guardian/conservator industry, other states have found a way.
In New Mexico cases most likely to end up in family turmoil, judges typically appoint a team of professionals recommended by the lawyer for a petitioner – usually a family member – seeking to impose a guardianship on an older relative to advise the court on whether to declare that relative incapacitated – which essentially means they no longer have control over their own life.
In California, the court relies on an independent investigator – not people hired by the petitioner’s lawyer.
Texas not only requires that guardians undergo background checks and be licensed, it requires a bond. People can take complaints to the Texas licensure board.
“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.”
In New Mexico, it apparently isn’t such a big deal.
Incredibly, the state can’t even say how many “active” guardianships there are. A recent study found more than 6,000 in Bernalillo County alone, some dating to the 1950s. Presumably many of the wards, and guardians, have long since passed away, but the files were never closed. There is no systematic auditing of reports that are supposed to be filed.
There are different kinds of guardianships ranging from low-income people on disability to elderly people with considerable assets. The latter often garner the most family fighting because there is money involved that is under the control of a for-profit guardian/conservator. There is no recourse for complaints other than to try to get the attention of the judge in the case.
The New Mexico Office of Guardianship contracts with commercial companies and nonprofits to care for low-income wards, paying a flat fee of $3,650 a year for those services. And it has jurisdiction to investigate complaints, although a 2013 legislative analysis said the agency works closely with its contractors so there is “an inherent conflict of interest.”
So is it an effective watchdog?
The agency’s records custodian last week said the office has “no public records showing the number of complaints filed against any particular contractor.” Moreover, he said such complaints are exempt from public inspection because they relate to “client complaints against a contractor.”
Translation: We don’t have anything, and if we do, we aren’t going to tell anybody.
That means you’re out of luck if you want to know about your court-appointed guardian’s track record.
Everybody just move along. Nothing to see here.
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.
Journal Town Hall
The Journal is joining with the Albuquerque Department of Senior Affairs and radio station KANW to host a town hall on New Mexico’s guardianship program. Tune in for a live broadcast on KANW 89.1-FM from 7-9 p.m. March 22. The program features a 12-member panel of elected officials, members of the industry, advocates and experts.