Legislation bolsters guardianship reforms

By Colleen Heild

A measure is advancing in the state Legislature to give alleged incapacitated people – and those who care about their welfare – a greater voice in the legal process that can turn over management of their lives and finances to court-appointed guardians and conservators.

The legislation would allow people to call witnesses and otherwise defend themselves in court against allegations that they are incapacitated and provides for a new grievance procedure for complaints against guardians and conservators. It also details the ways someone can designate the guardian or conservator they want should the need arise.

The legislation, sponsored by Sen. Jim White, R-Albuquerque, and Rep. Daymon Ely, D-Corrales, builds on the slate of reforms enacted in 2018 that aimed at injecting transparency and accountability into New Mexico’s guardian/conservator system.

“Last year made quite an impact,” White told the Journal last week. “We made laws a number of years ago to create this guardianship and conservatorship system to protect the folks that can’t handle it themselves and then people found a way to abuse it. So now we’re making laws to hopefully stop the abuse.”

White said the proposal is the product of a series of meetings over the past year involving a group that included judges, the state Auditor’s Office, Disability Rights New Mexico, the Attorney General’s Office, the Governor’s Office and others.

The measure was approved unanimously by the Senate on Friday and was sent to the House for further hearings.

The measure, SB 395, adds teeth to last year’s legislation by requiring certification of professional guardians and conservators, and increases fines if they are late in filing required annual reports with the court about the incapacitated person’s status.

It provides that people who are alleged to be so incapacitated they can’t manage their affairs would be able to present evidence, examine witnesses and otherwise participate at a hearing in which a judge considers a petition – sometimes filed by family members or even a neighbor – that would authorize the appointment of a guardian or conservator.

That provision, according to a legislative analysis, is important “for the person alleged to be incapacitated to adequately defend themselves and present evidence at hearings.”

Supreme Court Justice Shannon Bacon told the Senate Judiciary Committee that the 52-page bill is “much more explicit what the protected person’s rights are.”

The measure also creates a process so that a protected person or those interested in that person’s welfare can file a grievance with the court if the person believes a guardian or conservator is breaching their fiduciary duty or otherwise acting inappropriately.

“You want anybody who’s interested or sees an abuse, you want them to be able to come forward and say we need to look at it,” White told the Senate Judiciary Committee.

Once a grievance is filed, the judge who appointed the guardian or conservator is required to review the grievance, schedule a hearing if appropriate and take any action supported by the evidence.

Bacon, who as a state District Court judge in Albuquerque served as the courts’ chief representative in reform discussions, has since been appointed to the state Supreme Court by Gov. Michelle Lujan Grisham.

Bacon told the Judiciary Committee that the Supreme Court has already approved rules – not yet put into place – anticipating approval of SB 395, to create a standardized grievance form available to people who seek to file such grievances.

Bacon said court rules will set out the process so a judge can hear all sides of a grievance.

And she added there is a “fail safe” mechanism contemplated so judges can decline to consider a grievance if a similar grievance has been filed within the prior six months and was acted upon by the judge.

The measure would allow anyone interested in the protected person’s welfare to file a grievance.

“We want individuals to say ‘something doesn’t seem right’ and if you start to narrow the scope as to who can say something isn’t right, we’re just putting this all back in the closet,” Bacon told the committee.

Another safeguard in the proposed legislation would allow the court to appoint a court investigator to assess a protected person’s mental and/or physical capacity no later than 10 years after the initial appointment of a guardian or conservator, and every 10 years after that.

Some people, such as those with traumatic brain injury, may have improved to the point that they can manage without a guardian or conservator, Bacon said.

The 10-year review would supplement the legally required annual or initial 90-day reports judges receive from guardians and conservators they appoint.

The bill also specifies what types of documents, such as a will, a person can use to designate their choice of guardian or conservator if he or she becomes incapacitated in the future.

The person designated would rank second on the priority list a judge by law must consider in deciding whom to appoint. The first would be a guardian already appointed in another jurisdiction.

“That’s in there also,” White said, “that if they’ve got a will or a power of attorney, that those documents are respected.”

The bill is the latest attempt to reform the state’s adult guardianship/conservatorship laws after a 2016 Journal investigation and follow-up stories revealed weaknesses in the system, which allowed incapacitated people in need of protection to be victimized.

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Legislation bolsters guardianship reforms