Governor Authorizes Measure Strengthening Guardian Oversight To Protect Vulnerable Adults In New Mexico

Submitted by Carol A. Clark

 

STATE News:

SANTA FE — Gov. Michelle Lujan Grisham on Thursday signed into law extensive guardianship reform legislation, creating much-needed oversight of legal guardians and conservators that control medical, financial, residential and other major life decisions of more than 6,000 New Mexicans who are aging or living with disabilities.

Inadequate oversight of guardianship and conservatorship cases have left many of the most at-risk adults in this state susceptible to abuse, neglect or exploitation.

Sponsored by Rep. Marian Matthews and co-sponsored by Rep. Joanne Ferrary, Sen. Jerry Ortiz y Pino, Sen. Linda Lopez and Sen. Katy Duhigg, House Bill 234 establishes a court visitor pilot project, a partnership between the courts and the Developmental Disabilities Council’s Office of Guardianship to provide eyes and ears on the ground for judges to monitor guardianship cases.

The goal of the pilot project is to build a program that will allow judges to assign volunteer court visitors to meet with and submit a report about every person under guardianship in New Mexico at least once a year.

The bill also establishes the Working Interdisciplinary Network of Guardianship Stakeholders program, or WINGS, based on a national model that studies and implements best practices in guardianship and alternatives to guardianship.

“This legislation will help ensure that our guardianship system provides adults with the least restrictive alternatives to managing and living their lives,” Gov. Lujan Grisham said. “We must commit to the ongoing work of reforming and evolving beyond guardianship. Through the WINGS program, we will bring to New Mexico the most innovative ideas from around the country on how to best protect the rights of people who are subject to guardianship and ensure that they and their families have a voice.”

House Bill 234 requires the Office of Guardianship, Administrative Office of the Courts and Office of the State Auditor to oversee and monitor guardians and conservators in meaningful ways. Specifically, the bill requires the Office of Guardianship to conduct annual comprehensive reviews of state-funded guardianship services, as well as welfare visits of protected persons receiving those services.

Additionally, the bill requires the Administrative Office of the Courts to establish a guardianship annual report review division and authorizes the Office of the State Auditor to review annual conservator’s reports, access financial records in conservatorship cases, and conduct full audits, if necessary.

“For too long, the guardianship system in New Mexico has been paternalistic, overly restrictive, and unexamined,” said Executive Director Alice Liu McCoy of the New Mexico Developmental Disabilities Council. “HB 234 will hold everyone in the guardianship system accountable – which include not only guardians and conservators, but legal professionals, state agencies, and the courts. Most importantly, it requires everyone in the guardianship system to continually seek the least restrictive options to meet the protected person’s needs.”

The bill requires the Office of Guardianship to publish an annual report about publicly funded guardianship services in New Mexico, which will increase transparency and support evidence-based policy recommendations to improve the guardianship system. The bill also requires the head of the Office of Guardianship to be an attorney licensed in New Mexico.

The number of guardianship cases is expected to increase significantly, as pandemic complications arise and the state’s population ages rapidly. The Office of Guardianship’s wait lists have dramatically increased in the past year.

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Governor Authorizes Measure Strengthening Guardian Oversight To Protect Vulnerable Adults In New Mexico

Ambitious guardian changes proposed

A special commission on Friday unveiled a slate of ambitious proposals to strengthen oversight of the state’s ailing guardian and conservator system, which oversees finances and other major decisions for many of New Mexico’s most vulnerable citizens.

The Supreme Court-appointed commission’s recommendations include hiring special court employees to hear grievances and requiring more accountability from the professionals appointed to make decisions for incapacitated people.

Other recommendations include requiring mediation or “facilitated family meetings” between feuding relatives in contested cases and creating an “adult protected person” oversight board to regulate professional guardians and conservators, who must be certified and bonded.

The initial set of proposals, due to the Supreme Court by Oct. 1, focus on ways to improve the professionalism of corporate guardians and conservators who handle a protected person’s finances by requiring bonding to protect an incapacitated person’s assets.

The state’s courts are responsible for appointing guardians and conservators for incapacitated individuals who can’t handle their own affairs. Often family members are appointed, but if there is no family or if family members are feuding, courts would appoint third-party professional guardians.

Dozens of families have come forward since a Journal series highlighted the problem, detailing concerns and potential deficiencies in the system, sparking the decision to make changes.

The commission also proposed requiring certification of all corporate guardians and conservators, presumably by a national guardianship agency, but backed off the idea of requiring a state license that an oversight board could revoke for malfeasance or misconduct.

Chaired by retired state District Judge Wendy York, the group was tasked in April with providing the Supreme Court with concrete ways to improve the system that, in an attempt to protect the incapacitated person, operates out of the public eye. All hearings are held in closed courtrooms, with few participants and with nearly all court records sealed.

Enhanced reporting

Typically, the only oversight of such cases has been the guardian’s or conservator’s filing of a several-page annual report to the judge each year, but the commission is recommending enhanced reporting to include bank and financial statements. Such filings would continue to be sealed.

Family members who have in the past been stymied by a lack of access to the courts to air complaints about a loved one’s treatment or a guardian or conservator’s conduct could file grievances with an independent court commissioner who would investigate and, if warranted, report to the judge in the case.

Under the recommendations, judges in appointing a guardian or conservator also would have to make specific findings of fact if they deviate from an incapacitated person’s advance directive, trust, will or estate plan.

“I feel like we’ve made some headway,” said Emily Darnell Nuñez, the sole layperson appointed to the commission. “We haven’t solved all the problems, but we have made a good first step.”

Last year, the Journal series “Who Guards the Guardians?” prominently featured the protracted guardianship/conservator case of Nuñez’s mother, Blair Darnell.

Secrecy issue

The thorny issue of secrecy and sequestration of such cases wasn’t addressed in the initial set of proposals but is scheduled to be discussed by the commission later this year, along with other possible recommendations for changes in state law.

A final commission report is expected by Jan. 1, ahead of a 30-day legislative session, and could include funding proposals for reforms if approved by the Supreme Court and endorsed by Gov. Susana Martinez.

Over the past decade, there have been prior attempts at reform involving commissions appointed by the Legislature.

But state Sen. Jerry Ortiz y Pino, D-Albuquerque, said this marks the first time the state Supreme Court has taken the lead.

“The court, in bringing this to the forefront, has to do something. We (state legislators) have to do something; we can’t let this fester any longer,” said Ortiz y Pino, a commission member and longtime advocate for reform.

The 16 commission members include judges, attorneys, a psychologist, two appointees from Martinez’s administration and current and former legislators.

Although mostly disgruntled family members testified at monthly commission meetings, the commission’s work gathered momentum after July’s federal criminal indictment of top executives of a longtime Albuquerque-based corporate guardianship/conservatorship firm, Ayudando Guardians, for alleged embezzlement of millions in client funds.

Weeks earlier, state financial regulators announced they had found evidence of siphoning of $4 million of client trust funds at Desert State Life Management, which originally handled special trusts and guardianships for special needs clients and still retained some court-appointed conservator cases.

Just this week, State Auditor Tim Keller alerted state officials to an initial audit finding that New Mexico’s Office of Guardianship, which provides guardianship services to about 900 indigent clients through private contracts with guardianship firms, had lax internal controls, failed to investigate complaints about contractors and performed required annual compliance reviews on only two of 21 state-funded guardianship companies last year.

Ortiz y Pino said the recent revelations about guardianship companies “have reinstated the belief that this is a big mess.”

“The question will be: Is the state willing to spend the money to bring about these changes?”

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Ambitious guardian changes proposed