State doesn't track how many developmentally disabled people act as own guardian

By Daniel J. Chacón

Angelita Chacon

The state of New Mexico doesn’t know how many of the estimated 6,800 individuals enrolled in the Developmental Disability Waiver program act as their own guardian.

Tracking guardianship status for individuals receiving service under the so-called DD Waiver program “is not a requirement” for the Developmental Disabilities Supports Division of the state Department of Health, department spokeswoman Jodi McGinnis Porter wrote in an email.

“Determining whether someone should have a guardian depends on individual circumstances rather than a person’s general classification as intellectually and/or developmentally disabled,” she wrote.

The lack of guardianship information emerged as the state reviewed the failings of the DD Waiver program, which was designed to provide care to people with intellectual and developmental disabilities. The review and wellness checks on every enrollee across the state were triggered by the death of an autistic woman who was enrolled in the program.

Mary Melero, 38, was her own guardian before her death in February.

“A person who is intellectually and/or developmentally disabled has the same basic legal, civil, and human rights and responsibilities as everyone else,” McGinnis Porter wrote. “Additionally, they have the right to self-determination and self-direction, unless deemed incompetent or incapacitated by court order, [and] individuals have the right to make decisions in their best interest.”

U.S. Customs and Border Protection agents discovered Melero wrapped in a blanket and lying on the floorboard in the back of a passenger van Feb. 27 after an inspection at the Bridge of the Americas Port of Entry in El Paso.

Authorities have said Melero had numerous open wounds, including chronic bedsores with exposed bone and lacerations throughout her body.

“She was found to have labored breathing and stitches on both lips,” according to an arrest warrant affidavit for her caregiver, Angelita Chacon of Rio Rancho, and her two alleged accomplices.

Melero “was described as if she wanted to speak; however, only ‘tears fell from her eyes,’” the affidavit states.

While Melero was her own guardian while living with Chacon, McGinnis Porter said she had a court-appointed guardian at the time of her death.

Shane Maier, an attorney for Melero’s family, said Melero was autistic but able to make decisions on her own. The family plans to file a wrongful death lawsuit against the state and the provider responsible for Melero’s care, among others.

“She knew what was right and wrong,” he said in an interview. “She would say ‘no’ to stuff she did not like. … She had autism — she was on the spectrum — but it wasn’t overly severe.”

Tim Gardner, director of legal services for Disability Rights New Mexico, a nonprofit whose mission is to protect, promote and expand the legal and civil rights of people with disabilities, said the only way to qualify for guardianship is for someone to petition a court to have a guardian appointed.

“In our office, we would say it’s too easy to get people into guardianship while some people would say it’s too hard,” he said. “But what is clear is that … a guardianship is a very significant deprivation of someone’s civil rights, and so it shouldn’t be easy.”

Melero’s family held a memorial service Saturday at Westside Community Center Park in Albuquerque to honor Melero “and rally against the mistreatment of unprotected people like Mary who have been abused and mistreated by an unjust system of caretakers and medical professionals under the DD Waiver Program,” they said in a statement issued by the Gauthier & Maier Law Firm.

“The family and community seek a change for future generations so that developmentally disabled persons do not have to go through Mary’s pain,” they said.

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State doesn't track how many developmentally disabled people act as own guardian