New Mexico Lawmakers Close Loophole in Guardianship System

 By Coleen Heild

The process of taking away someone’s liberties in New Mexico, at least temporarily, sometimes has been as simple as alleging they weren’t capable of making their own decisions and were in danger or being exploited.

A temporary guardian could be appointed by a judge without the alleged incapacitated person or their family being notified; they could be forced out of their homes, their bank accounts transferred and their property liquidated. And all this could occur before they ever appear before the judge, who would eventually evaluate the evidence and decide if, in fact, they needed a guardian.

Now, under the latest reform to the state’s adult guardianship system, the state Legislature has unanimously approved a bill to provide better protections to New Mexico’s most vulnerable citizens by tightening up the emergency process.

“Right now, it’s too loose, frankly,” said state District Judge Nancy Franchini of Albuquerque in recent legislative testimony. “We want to ensure that protected people are part of the process sooner rather than later, and are seen by a judge sooner rather than later.’

Franchini chairs a new 25-member guardianship study group that proposed the measure, which still needs the approval of Gov. Michelle Lujan Grisham.

The bill requires judges who approve a temporary guardianship to hold a hearing within 10 days to listen to the evidence. Currently, state law requires hearings to be held “as soon as possible.” But sometimes months elapse before a hearing is held.

“This is an emergency proceeding that should have a hearing very, very quickly because we’re taking somebody’s fundamental liberties away,” said state Supreme Court Justice Shannon Bacon during a hearing before the Senate Judiciary Committee earlier this month.

Another key feature of the bill: temporary guardians would be barred from liquidating the protected person’s property, or moving them out of their residences without express approval from the judge. There is no such prohibition in current law.

And families, or even a friend or neighbor, would have standing to appear at the 10-day hearing and ask the judge to modify or dissolve the temporary guardianship.

“I have heard of a guardianship that happened in this state where a person was put under a temporary guardianship and the temporary guardian never went to see the protected person. And during that time, the protected person passed away without ever seeing the guardian,” said Franchini, in recent legislative testimony. “That just can’t happen; that just can’t happen.”

Moreover, some hospitals in New Mexico have abused the process by going to court when the alleged incapacitated person “isn’t able to pay their bills,” Franchini said. “What the hospital is doing is filing for a temporary guardianship to get the person out of the hospital… so they can get money basically.”

Narrowing the scope
Lawmakers and the state’s judiciary have been overhauling the adult guardianship system since 2018, after the Journal began an ongoing investigation into the legal process that critics complained was ripe for corruption given the power granted to court-appointed guardians and conservators.

Some families of incapacitated adults contended they were barred or restricted by guardians from visiting their loved ones.

With the federal criminal fraud indictments of principals of two major guardianship firms fueling the debate, lawmakers and the judiciary adopted numerous reforms aimed at transparency, accountability, more family involvement and more oversight. But issues with temporary guardianships had not been addressed until now.

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Lawmakers Close Loophole in Guardianship System