New Mexico lags in guardianship reform

The New Mexico Administrative Office of the Courts reported in a 2009 legislative analysis “that there is no system in place in New Mexico to assure effective oversight and monitoring of court-appointed guardians.”

Four years later, another legislative analysis found that conservatorships and guardianships were becoming more common, but “in New Mexico, there is limited regulation of what is known as ‘corporate guardianship,’ ” which involves court appointment of a for-profit or not-for-profit entity that is paid to be the legal guardian – either from the ward’s assets or by the state.

Little has changed since then, as New Mexico lags behind other states, including Texas and California, that have made reform of the system a top priority.

“We are focused on making sure that these people are protected, and it’s a big issue, a hot topic all throughout Texas,” said Jeff Rinard, guardianship certification program director in Texas.

“Nationwide, it’s a big deal, especially as the population ages.”

But in New Mexico, which has one of the most secretive guardianship/conservatorship systems in the nation, the state doesn’t know how many people are living under a court-approved guardianship or conservatorship.

In a special project funded two years ago by the Legislature for the 2nd Judicial District, the Albuquerque-area court identified about 6,000 “active” guardianship or conservatorship cases in Bernalillo County alone, some dating back to the early 1950s. Two special masters have been spot-checking cases and have made home visits to find out if wards are OK and to check their living conditions – if they are still alive.

The rest of the state? State court officials say the courts’ computer system can only show the number of guardianship cases that have been active since 2016, but efforts are underway to improve tracking of cases prior to that time.

No records

A judge in New Mexico typically sets a 30-minute closed hearing to make a potentially life-changing, and often irrevocable, decision on whether to place an allegedly incapacitated person in the hands of a family member guardian or guardianship firm.

If the request is granted, based on reports presented to the court, the incapacitated person is stripped of virtually all his or her rights, with the guardian/conservator assuming authority to make decisions on every aspect of that person’s life and finances.

The guardianships break down into three general categories:

• Cases in which a family member is appointed guardian, which account for the vast majority.

• Cases in which a for-profit or not-for-profit guardian is appointed for someone with few assets and is paid by the state – $3,650 a year for each incapacitated person.

• Cases in which the allegedly incapacitated person has assets and a commercial guardian/conservator is appointed and paid from the assets, often charging hundreds of dollars an hour and hiring others to provide services that could include help with personal hygiene, grocery shopping and even dog walking. Conservators have virtually total control over financial decisions.

Family members interviewed by the Journal have complained that commercial guardians/conservators ignored the incapacitated person and wasted estate assets against the wishes of that person and family members.

They said efforts to complain to the judge who made the appointment are often futile.

Among their complaints: Guardians and conservators can charge excessive fees with little justification required by the court.

And they say a family member who hires a lawyer and files a petition for guardianship is in the driver’s seat from then on, partly because judges typically appoint that lawyer’s recommended team to advise the court whether to grant a guardianship. That practice has been rejected, for example, in California, where judges use a court investigator on staff to investigate the need for a guardian.

A 2013 legislative analysis said there is no specific mechanism in New Mexico for complaints against corporate guardians who don’t have contracts with the state Office of Guardianship. Texas has overhauled its system to put licensure for guardians in place, along with a complaint system.

The Office of Guardianship, which contracts with for-profit and not-for-profit firms to provide guardian or conservator services to low-income individuals, does have the authority to investigate complaints against its guardian contractors.

But the 2013 legislative analysis said that because the office works closely with its contractors, “there is an inherent conflict of interest.”

And what about the complaints the office has investigated?

Records custodian Justin Moore told the Journal: “The Office of Guardianship has no public records showing the number of complaints filed against any particular contractor. Moreover, such complaints are exempt from inspection because they related to “client complaints against a contractor,” which he said are exempt from public inspection.

The state’s Adult Protective Services Department investigates complaints against guardians and makes referrals to the state Attorney General’s office, but a spokesman last week said the agency’s tracking doesn’t distinguish how many referrals have involved guardians.

Reforms elsewhere

A federal Governmental Accountability Office report in 2011 noted that many states reported having limited resources for monitoring guardians. But that didn’t stop some, including Delaware and Texas, from recruiting volunteers to help oversee guardians.

Delaware officials reported that their volunteers serve as liaisons between guardians and the courts, visit guardians and wards, and report to court officials about once every six months.  (Click to Continue)

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New Mexico lags in guardianship reform