Copyright © 2017 Albuquerque Journal
The state Supreme Court is forming a commission to look into issues surrounding New Mexico’s system of court-appointed guardians and conservators for incapacitated people.
Chief Justice Charles Daniels told the Journal on Friday that he and the other four justices want the commission to do a comprehensive study of the issue and inform the court of its findings after holding public proceedings.
“We’re in the early stages of creating a mechanism or a board or commission to look into the issues that have been a matter of public attention and try to do an objective study of the current practices and current laws to determine whether there’s a need for improvement.”
The court announcement comes after the Journal published a series of articles highlighting the problems faced by families and loved ones when elders have been determined to be incapacitated by a state district judge and placed under a guardianship, conservatorship or both. The Journal investigation also found that New Mexico lags behind other states that have instituted reforms to improve transparency in the mostly confidential system, and make guardians and conservators more accountable to the courts, including requiring certification or licensing of guardians and conservators.
The Journal, KANW-FM and the Albuquerque Department of Senior Affairs also sponsored a town hall forum last week at the Albuquerque Journal auditorium. The two-hour session, broadcast on KANW and featuring a panel of lawmakers, judges, family members and industry professionals, attracted a standing-room only audience of about 90 people.
Daniels himself was in the audience.
“At this point we’re going into this with open minds,” Daniels said Friday. “There’s enough that has been aired recently for us to realize this is something we ought to look into without prejudging who’s right and who’s wrong.”
He said that if improvements are warranted, the court could seek legislation, if that is required; recommend executive agencies enact greater safeguards; or change court rules.
Daniels said the court in the coming weeks will decide the composition of the commission, which he said will have “balanced representation … from all kinds of diverse interests,” including people representing the concerns of families who have been critical of the system.
During last week’s forum, Susan Bennett, who co-founded the New Mexico Guardianship Association, took issue with what she said was a portrayal in the recent Journal series of guardians as “bad people.” She said many guardians are “good and tireless people who do the very challenging daily work of protecting our elders.”
For instance, she said, she had spent up to 12 hours in an emergency room with a ward.
Bennett said that often, nonfamily guardians are appointed because of “how toxic some family members can be to their parents.”
Bennett did acknowledge, “We do need a broader system to train, certify and oversee guardians and conservators.”
Investigative journalist Diane Dimond, an Albuquerque native who reported and wrote much of the Journal series “Who Guards the Guardians,” was also one of the forum panelists and summarized her findings. Among them: Industry insiders wield undue clout in the system. She said family members complained that for-profit guardians and conservators in some cases ignored the wishes of the incapacitated person and of family members, and in some cases wasted the assets of the estate.
Panelist Jorja Armijo Brasher, director of Albuquerque’s Department of Senior Affairs, said that based on her involvement with seniors and other information she has gathered, she believes there are a number of problems with the current system.
For instance, she said, judges typically give “unwarranted deference” to the lawyer who files the petition seeking to place an allegedly incapacitated person under a guardianship or conservatorship. She said family members should have a voice in the court appointment of the attorney for the alleged incapacitated person, and other advisers.
She also said it appears there is an “insufficient process of managing the costs of court-appointed” advisers who handle the finances of the estate and make life decisions for the person under a guardianship.
“Service providers aren’t incentivized to minimize costs” to the estate of the incapacitated person, she added.
Corrales resident Emily Darnell Nunez gave a family member’s perspective. She told the forum that although she was a professional with access to resources, she felt intimidated by the process. She echoed concerns of other family members interviewed by the Journal and said she kept her head down and her mouth shut for fear that if she said much in protest she would be barred from seeing her mother at all.
District Judge Alan Malott of Albuquerque told forum attendees that state law mandates guardianship cases be “sequestered,” or kept from the public eye, for the most part.
But he added, “I happen to personally agree that the only things that should be sequestered (from the public) is medical and financial information. Family members should get everything.”
He said the current degree of confidentiality could conceivably “cover up” misconduct by the parties.
Bennett countered that incapacitated people under guardianships deserve privacy.
“A lot of these cases are very messy and nasty, and the family dirty laundry will be public and it can be very hard on everyone,” she said.
Malott acknowledged that the 2nd Judicial District Court in Albuquerque had been mistakenly withholding docket sheet information on such cases but is now making changes to provide public access required by law.
Malott said family members who are critical of actions taken by typically for-profit guardian agencies can always write his court a letter, and he will set a hearing to look into the concerns. But he said he doesn’t speak for all judges.
“People have to speak up; people can’t be afraid,” he added.
Mayor Richard Berry said he was concerned about the issues that had been raised and wanted to help connect people to resources that could help them. He gave a phone number for the Office of Senior Affairs: 764-6400.
“Let us be your eyes and ears,” he added.
Former state Rep. Conrad James, R-Albuquerque, who tried in 2016 to pass a bill to permit visitation by family members of a loved one under guardianship, told the audience that isolation is the first step in the abuse process and that incremental changes in the law can help.
“I don’t think we can wait until there’s a perfect solution for this problem. We have to take baby steps, if necessary.”