Tuesday, September 26, 2017
Ambitious guardian changes proposed
The Supreme Court-appointed commission’s recommendations include hiring special court employees to hear grievances and requiring more accountability from the professionals appointed to make decisions for incapacitated people.
Other recommendations include requiring mediation or “facilitated family meetings” between feuding relatives in contested cases and creating an “adult protected person” oversight board to regulate professional guardians and conservators, who must be certified and bonded.
The initial set of proposals, due to the Supreme Court by Oct. 1, focus on ways to improve the professionalism of corporate guardians and conservators who handle a protected person’s finances by requiring bonding to protect an incapacitated person’s assets.
The state’s courts are responsible for appointing guardians and conservators for incapacitated individuals who can’t handle their own affairs. Often family members are appointed, but if there is no family or if family members are feuding, courts would appoint third-party professional guardians.
Dozens of families have come forward since a Journal series highlighted the problem, detailing concerns and potential deficiencies in the system, sparking the decision to make changes.
The commission also proposed requiring certification of all corporate guardians and conservators, presumably by a national guardianship agency, but backed off the idea of requiring a state license that an oversight board could revoke for malfeasance or misconduct.
Chaired by retired state District Judge Wendy York, the group was tasked in April with providing the Supreme Court with concrete ways to improve the system that, in an attempt to protect the incapacitated person, operates out of the public eye. All hearings are held in closed courtrooms, with few participants and with nearly all court records sealed.
Typically, the only oversight of such cases has been the guardian’s or conservator’s filing of a several-page annual report to the judge each year, but the commission is recommending enhanced reporting to include bank and financial statements. Such filings would continue to be sealed.
Family members who have in the past been stymied by a lack of access to the courts to air complaints about a loved one’s treatment or a guardian or conservator’s conduct could file grievances with an independent court commissioner who would investigate and, if warranted, report to the judge in the case.
Under the recommendations, judges in appointing a guardian or conservator also would have to make specific findings of fact if they deviate from an incapacitated person’s advance directive, trust, will or estate plan.
“I feel like we’ve made some headway,” said Emily Darnell Nuñez, the sole layperson appointed to the commission. “We haven’t solved all the problems, but we have made a good first step.”
Last year, the Journal series “Who Guards the Guardians?” prominently featured the protracted guardianship/conservator case of Nuñez’s mother, Blair Darnell.
The thorny issue of secrecy and sequestration of such cases wasn’t addressed in the initial set of proposals but is scheduled to be discussed by the commission later this year, along with other possible recommendations for changes in state law.
A final commission report is expected by Jan. 1, ahead of a 30-day legislative session, and could include funding proposals for reforms if approved by the Supreme Court and endorsed by Gov. Susana Martinez.
Over the past decade, there have been prior attempts at reform involving commissions appointed by the Legislature.
But state Sen. Jerry Ortiz y Pino, D-Albuquerque, said this marks the first time the state Supreme Court has taken the lead.
“The court, in bringing this to the forefront, has to do something. We (state legislators) have to do something; we can’t let this fester any longer,” said Ortiz y Pino, a commission member and longtime advocate for reform.
The 16 commission members include judges, attorneys, a psychologist, two appointees from Martinez’s administration and current and former legislators.
Although mostly disgruntled family members testified at monthly commission meetings, the commission’s work gathered momentum after July’s federal criminal indictment of top executives of a longtime Albuquerque-based corporate guardianship/conservatorship firm, Ayudando Guardians, for alleged embezzlement of millions in client funds.
Weeks earlier, state financial regulators announced they had found evidence of siphoning of $4 million of client trust funds at Desert State Life Management, which originally handled special trusts and guardianships for special needs clients and still retained some court-appointed conservator cases.
Just this week, State Auditor Tim Keller alerted state officials to an initial audit finding that New Mexico’s Office of Guardianship, which provides guardianship services to about 900 indigent clients through private contracts with guardianship firms, had lax internal controls, failed to investigate complaints about contractors and performed required annual compliance reviews on only two of 21 state-funded guardianship companies last year.
Ortiz y Pino said the recent revelations about guardianship companies “have reinstated the belief that this is a big mess.”
“The question will be: Is the state willing to spend the money to bring about these changes?”
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Ambitious guardian changes proposed