Defining the players

ALBUQUERQUE, N.M. — It is important to understand the various players in a case involving an incapacitated person. Among the positions a New Mexico District Court judge appoints:

Guardian Ad Litem 

The court appoints an attorney to represent the person alleged to be incapacitated. They are present at court proceedings to speak on behalf of the potential ward and inform the court as to what they believe is in the potential ward’s best interest.

 

Court Visitor

This person is usually a social worker or for-profit care manager who evaluates the potential ward, determines what they are capable of doing and what daily activities they need help with. They present their findings about family dynamics to the court and make a recommendation on whether a permanent guardian should be appointed.

Qualified Health Care Professional

A physician, nurse practitioner, psychiatrist or a neuropsychologist is assigned to determine the level of mental and physical impairment and make a report to the court. In New Mexico, such a report is routinely ordered even if the elder has already been determined to have dementia.

Permanent Guardian

This person is appointed after an initial 60- to 90-day assessment to make decisions about a ward’s medical care, where they will live, what kind of care they will receive and who will provide that care. After hiring in-home caregivers, the guardian often relies on their firsthand reports about conditions in the home, especially family relationships with the ward. A guardian can be a for-profit corporation or an individual, such as a family member.

Conservator

This appointee can be a bank, corporation or an individual. The conservator handles all of the ward’s finances. They pay the monthly bills, maintain the ward’s home and property, manage the estate investments and make decisions about what the ward’s future care needs might be, ensuring there are enough assets in place to pay for that care. The conservator, working with the guardian, can also hire companies to provide services for the ward.

Caregiver

This position is determined by the guardian, who hires the necessary number of staff to provide the ward with in-home care. Caregivers are assigned to wide-ranging tasks, from providing simple companionship and light meal preparation to constant bedside monitoring with responsibility for dispensing medicines. They are usually provided by a company, which bonds the employees and conducts background checks.

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Defining the players

Linda Kincaid Reports: Court-appointed attorneys violate civil rights, commit elder abuse

Disability rights group Disability and Guardianship Project filed litigation in federal court alleging that Los Angeles County courts have violated the civil rights of individuals under conservatorship. The Los Angeles Times reported:

The complaint alleges that the court system has failed to provide adequate training to attorneys in how to comply with the Americans with Disabilities Act, has failed to train the attorneys on how to effectively work with a client who has developmental disabilities, and lacks qualification and performance standards.

The court also places a conflict of interest on these attorneys, the complaint says. The court requires attorneys to advocate for the client while also assisting the court in resolving the matter, violating the client’s right to due process, the complaint says.

Coalition for Elder & Dependent Adult Rights (CEDAR) reported that court-appointed attorneys in a number of California counties violated the civil rights of the conservatees they were assigned to represent. In a conservatorship in San Bernardino County, the court-appointed attorney openly opposed the civil rights of the conservatee, and he advised abusers on strategy to isolate the conservatee from her loved ones.

CEDAR reported the civil rights violations to the San Bernardino County Superior Court. On November 12, 2014, San Bernardino County Deputy Court Executive Officer Debra K. Meyers wrote:

The Court would refer you to the State Bar of California, which is the state agency that licenses and regulates attorneys in the practice of law and is solely responsible for the investigation and resolution of complaints about the professional conduct of attorneys.

On March 24, 2015, San Bernardino County Presiding Judge Marsha G. Slough followed with a letter stating:

Please be advised that any concerns regarding a lawyer’s conduct should be referred to the California Bar Association for investigation, not the court.

The California Bar Association referred the matter back to the court. Court-appointed attorneys in San Bernardino County continue to operate without supervision or oversight.

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Court-appointed attorneys violate civil rights, commit elder abuse