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| 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.”
Full Article & Source:
Legislation bolsters guardianship reforms
Good news for New Mexico!
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