Tuesday, November 21, 2017
New reforms in guardian law presented
The model reforms, crafted by the national Uniform Law Commission for states to adopt around the country, are being considered by a New Mexico guardianship task force and a state legislative committee.
If enacted by the Legislature as is, the reforms would add more openness to New Mexico’s closed guardian/conservator system.
Law professor David English, of the University of Missouri at Columbia, has spent 30 years studying guardianship reform and spearheaded the drafting of new model guardianship laws for the Chicago-based Uniform Law Commission.
Last week, he traveled to Albuquerque to present the 2017 revision, which stemmed from two years of national study of guardianship issues. He spoke before a New Mexico probate lawyers’ group and the state Supreme Court commission studying guardianship reform.
“What struck me when I first looked at New Mexico, I was very surprised as a general matter that guardianship proceedings were not open to the public. That’s not consistent with how most other states address the issue,” he told the guardianship commission on Friday.
In New Mexico, guardianship proceedings are sequestered and closed to the public. The only publicly available record is a court docket sheet identifying the parties involved and a general list of the actions and filings in the case.
But, in Missouri, where English lives, the public can attend hearings in which judges decide whether a guardian should be appointed for an incapacitated person. Typically, those placed under guardianship or conservatorships are elderly, those with dementia or Alzheimer’s or others who need help with their decision-making or finances.
He said the intent of the new reform laws would be to open guardianship proceedings to the public, unless the person for whom the guardianship is being considered asks for a closed hearing or a judge decides otherwise.
“It’s very important that the public have some access to what’s going on in guardianship cases,” English told the guardianship commission. “At least be able to attend the hearing.”
Access to court filings that include financial and health information would still be confidential, but family members of those under guardianship could get access to annual reports and other filings required of guardians and conservators.
“The theory is you want greater disclosure to, not to the whole world, but to the people who have a high level of interest in the welfare of the person under guardianship so they can get copies of the reports and accounts and raise issues with the judge,” English said.
If adopted, the new Uniform Law Commission guardianship law would provide more eyes and ears – and thereby more accountability – to New Mexico’s system, English told the Journal.
Over the past year, family members have complained to the New Mexico guardianship commission and the Journal about being barred from seeing their loved ones for weeks or months once a professional guardian is appointed. Some professional guardians restrict visitation or have allowed only monitored meetings, contending that certain relatives upset the person under guardianship.
“Visitation has long been an issue in guardianships,” English told the state commission on Friday. “But it’s gotten a lot of added attention in the last few years.”
He said there are guardians “who in some cases will prohibit all visitation. I think it’s a matter of convenience (for the guardian) and that’s not good.”
But allowing unlimited visitation or outside contact could subject the person under guardianship to those who might financially exploit or abuse the person, English said. “It’s always a balancing test.”
Under the new uniform law, a guardian wouldn’t be allowed to restrict visitation except by court order.
“An individual should be able to interact with family and others the same as if they were not under a guardianship,” English said.
The list of people entitled to advanced notice about a potential guardianship appointment would also be expanded and they would be entitled to subsequent notice of hearings in the case.
‘A blunt solution’
Gov. Susana Martinez’s spokesman said recently that the governor hadn’t decided whether to place guardianship reform on the call for the 30-day session in January, which is typically limited to budgetary issues.
Regardless, the Legislature’s Courts, Corrections and Justice interim committee has been discussing a version of the new uniform laws.
English said the new model laws highlight the need for alternatives to guardianships and conservatorship by allowing single legal transactions, such as when someone needs the authority to admit a person to a nursing home or to sell a vacant house.
“Guardianship can be a really blunt solution compared to something less sweeping,” English said.
For instance, there are cases in which a court can issue an order and solve the problem “without subjecting the person to the rest of their lifetime being in a guardianship or conservatorship,” he said.
A key provision would require guardians and conservators to present a plan, including their projected fees, within 60 days to the court.
“One of the problems is that conservators would come to court and sometimes their fees come as a big surprise,” he said. English cited a case in Virginia in which a “very honest” attorney was charging $250 an hour to perform tasks in a guardianship case “when a secretary could have done the work for a fraction of the cost.” Typically, fees paid to conservators and guardians are deducted from the assets of the protected person.
The new uniform laws would permit bonds to be required of conservators – a protection already proposed by the New Mexico guardianship commission and recently put into place by district judges in Albuquerque.
“Given human nature, there’s a certain percentage of conservators who will steal, sometimes they are lay people, sometimes professionals,” English said. Studies have found about 10 percent of cases involve criminal activity by conservators, he added.
In response, some states have hired auditors, a remedy proposed by the Supreme Court’s guardianship commission. In Minnesota, English said, a former police detective is the chief auditor who scrutinizes financial accountings filed by court-appointed conservators.
The proposed Uniform Law Commission revision, if adopted in New Mexico, could increase the workload of attorneys who petition the courts to place someone under a guardianship. Judges might also have to spend more time reviewing aspects of the care and finances of the incapacitated person, and inquiring into what other alternatives to a proposed guardianship or conservatorship have been attempted.
English said the Uniform Law Commission has overhauled its model guardianship laws at least three times since 1969. The last change in the law in New Mexico was 1997.
“This is such a leapfrog for us as far as the changes being so extensive,” said Albuquerque attorney Gaelle D. McConnell, a Supreme Court commission member. “Is it because New Mexico hasn’t kept up with previous uniform acts?”
“That’s probably a lot of it,” English responded.
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New reforms in guardian law presented