Monday, December 5, 2016

Fixing a well-meaning but flawed guardian system

Editor’s note: The Journal published a five-part investigative report from Sunday, Nov. 27, through Thursday, Dec. 1, about the problems and heartache in the state’s elder Guardianship system:  Who Guards the Guardians?

Today, some possible solutions.

It won’t be easy to overcome budget challenges and opposition from entrenched interests. Earlier efforts have failed. But judges, lawyers, aggrieved family members and others agree there are ways to fix some of the flaws in New Mexico’s guardianship system as outlined in a five-part Albuquerque Journal series.

Here are some of their suggestions to cure an ailing system that can make inheritances disappear, fracture families and take away the elder person’s dignity and freedom.

• Curb excessive secrecy – except for medical information protected by federal law. Time and time again, people critical of the system say transparency would be the best deterrent. Responding to the Journal series, retired District Judge Anne Kass of Albuquerque told the Journal she believes, “We need to have a really profound conversation between privacy and secrecy and develop a better way of measuring it … (deciding) when it’s OK and when it isn’t.”

• Give aggrieved family members a meaningful forum to air their complaints – a forum that can hold accountable the paid professionals in the guardianship industry.

• Family members should be involved, not shut out of the ward’s life. Instead of labeling family members as “in conflict” or “upsetting” to the elder and curbing their visits, guardians and conservators should include them in the elder’s everyday decisions. Rep. Conrad James, R-Albuquerque, says the process of “isolating the senior is the first step of abuse in these cases.”

• Elevate the evidentiary requirement for an elder to be declared incapacitated and make sure all family members are heard. Require the elderly person to actually appear in court and be questioned by the judge unless it is physically impossible.

• Require specific training and issue state licenses for guardians and conservators. New Mexico has more licensing requirements on the books for hairdressers and landscapers – because there are none for guardians and conservators. If a court appointee is going to manage cases with complex medical or financial issues, they should show they are qualified in those fields.

• The Legislature needs to recognize the problem and approve additional court funding. Judges need sufficient resources to monitor the growing number of guardianship cases. As described in the Journal series, the program currently runs on the “honor system” with little or no auditing or oversight of how appointees spend the ward’s money. ...

Unlike those of most states, New Mexico’s guardianship system is steeped in secrecy. Courts here routinely sequester proceedings, citing vaguely written sections of the state’s Uniform Probate Code, and order all participants to remain mum about the case to protect the privacy of the elder person. Critics say this lack of transparency quashes legitimate concerns and allows judges and attorneys to ignore both family members and important legal documents prepared by the elder, such as wills, estate plans and powers of attorney.

One Albuquerque lawyer who is representing a family in a guardianship drove the point home.
“There are bad things happening. Even if they’re legal, they are bad things,” he said. “The societal cost of this secrecy is too damn high.”

Marcia Southwick of Santa Fe established the popular Facebook page Boomers Against Elder Abuse a few years ago, and it now boasts more than 150,000 members. As one of three directors of the National Association to Stop Guardian Abuse, she suggests a strong state disciplinary board where family complaints are taken seriously and published for all to see. Only when the secrecy of the system is lifted, she said, can citizens know if there are multiple complaints against a court appointee and disciplinary action or criminal charges can be pursued.

Retired Judge Kass says that when she read some of the comments from guardian system insiders quoted during the Journal series, “What popped into my head was: the code of silence and how inbred this thing is with the people who work in it.” She added, “From my perspective, self-regulation doesn’t work, has never worked and can never work.”  (Click to Continue)

Full Article & Source:
Fixing a well-meaning but flawed guardian system

See Also:
Who Guards the Guardians?


Rachel said...

It can be fixed if the lawmakers can overpower special interest. Diane Dimond's series will help make this possible, finally. Thank you Diane Dimond.

Carole said...

I agree. Thank you Diane Dimond. You give us hope.

John Quakenbush said...

I think it's gone on too long it may be impossible... but I hope I'm wrong.