by Judge Nan Nash, Chief Judge, Second Judicial District
Census projections estimate 20 percent of the population will be over
the age of 65, with 19 million persons over 85, by 2030. Millions of
families are currently struggling with elderly family members with
diminished capacity. It’s critical that families receive accurate
information regarding available resources as they make these difficult
decisions involving loved ones. This difficult decision making is
exacerbated by articles that distort the system by suggesting that
guardianships and conservatorships will lead to abuse.
not develop suddenly but typically after a slow decline over a number
of years. Often the incapacitated person does not recognize the
incapacity. Families, faced with incredibly challenging and painful
circumstances, do not always agree a loved one is incapacitated or about
the level of care required. These subtleties make for challenging
Once some level of incapacity is suspected or recognized,
addressing the incapacity, while protecting the incapacitated person,
requires action. Families must carefully consider care options, ranging
from family member care, to in-home professional care, to assisted
living facilities. Families sometimes need a legal avenue to accomplish
this care plan.
Guardianships and conservatorships are two of the
legal remedies available. About 150 to 200 guardianship and
conservatorship cases are filed each year in the Second Judicial
District Court, typically by a family member. Guardianships deal with
the person; conservatorships with the person’s assets.
Guardianships and conservatorships provide a way for concerned family
members and others to seek a court order declaring that a person is
incapacitated and appointing another person, typically a family member,
to protect that person and manage that person’s affairs.
and conservators are only appointed after a full hearing where the
court determines capacity after hearing from medical, social work and
legal professionals. The court considers the wishes of the incapacitated
person and family members….
Guardians and conservators provide
consistent beneficial results for families. They are responsible for
assuring medical care, making living arrangements and managing the
incapacitated person’s assets so that they have enough to see them
through their life.
Like other court cases, some cases are
problematic. Evaluating the system through an examination of one case is
neither possible nor useful. These cases are complex, frequently
fraught with family conflict, complications and misunderstanding. High
family conflict inevitably results in expensive proceedings and
sometimes the appointment of an outside professional.
The goal of
the law is to protect the incapacitated person and to make sure that the
person’s assets provide for their care. New Mexico law requires that
the guardian and conservator report to the court within 90 days of
appointment, and annually thereafter.
As part of the protection
afforded under New Mexico law, the documents filed in these cases are
not available for public viewing. The court file includes sensitive
information and incapacitated persons are vulnerable to exploitation.
Therefore it is important that certain information remains confidential
to protect the dignity and privacy of the incapacitated person.
court takes these cases, and our responsibility under the law
seriously. In 2013, utilizing limited resources, the Second Judicial
District Court created the Elder and Disability Initiative to
effectively manage and protect persons with guardians and conservators.
EDI attorneys help judges manage existing cases by reviewing files,
conducting periodic home visits to ensure that individuals under
protection are not being exploited and helping family guardians
understand their duties. We are actively engaged in developing better
methods to address and monitor these cases.
conservatorships are useful and necessary tools for families faced with
incapacitated adults. Efforts to dissuade families from utilizing these
legal remedies are misguided and irresponsible.
comprehensive explanation of the requirements for guardianships and
conservatorships, including the rights and duties of guardians and
conservators, review the New Mexico Uniform Probate Code, Sections
45-5-101, et.seq. NMSA 1978.
Full Article & Source:
System protects the incapacitated, kin
Who Guards the Guardians?