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Governor Michelle Lujan Grisham
An attempt by Governor Michelle Lujan Grisham’s administration to advance its own reform of adult guardianship appeared dead in the last term after violating state judges who were concerned about its constitutionality.
The result is a sweeping new law that promises thousands of disabled adults under judicial tutelage more control over their cases through a new team of court auditors. A pilot program is also being set up where voluntary court visitors meet with guardianship members to ensure their well-being.
Lujan Grisham worked personally with judges, the State Guardianship Office and lawmakers on the reforms, notified her office and signed the measure on April 8.
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“This legislation will help our guardianship system provide adults with the least restrictive alternatives to management and living,” she said in a message. “We must commit to ongoing work on reform and development beyond guardianship.”
Beginning July 1, when the law goes into effect, the State Auditor’s Office will review all annual reports submitted by restorers appointed by the courts to administer the finances and property of a disabled adult. And the auditor has the authority to subpoena bank and other documents.
Particularly encouraging to advocates of disability is a new provision requiring state judges to be informed of the availability of less restrictive alternatives before the life and bank accounts of a disabled person are placed under the control of third party guardians or conservators.
Another feature of the new law, a priority for the governor, is the creation of a standing committee representing 19 interest groups, including two “protected persons,” who meet quarterly to examine future guardianship reforms.
The legislation marks the third wave of reforms since the launch of Who Guards the Guardians ?, a series of investigative articles starting in November 2016.
The complex and still largely secret legal process has been criticized as ripe for corruption in New Mexico and elsewhere as guards and conservators have been appointed to make decisions on behalf of those deemed incapacitated – usually older adults.
Most records in such legal proceedings are confidential to protect the privacy of a protected person, although some hearings in New Mexico are now public thanks to an earlier reform bill.
Since 2018, lawmakers and the courts have continued to explore ways to fill the loopholes and improve the system through a steering committee set up by the Supreme State Court.
Recent reforms weren’t on this committee’s radar, said Daymon Ely Rep., D-Corrales, a committee member who has also supported previous guardianship reform laws.
Rep. Daymon Ely
“This is kind of a new look at an old problem, to see if we can make it more robust. I was really shocked by how creative it was, ”Ely said in an interview last week.
License proposal
The 26-page overall package was created from a 14-page bill in which the licensing of guardians and restorers was required and the state guardianship office was made responsible for the process. This agency, which represents nearly 1,000 low-income individuals in guardianship cases, would have had the power to suspend or revoke licenses if an investigation warranted it.
However, at the Legislative Committee’s first hearing on March 5, the bill was essentially dead. At the hearing, the Office of Guardianship bill was tabled and the licensing clause was removed from the committee’s surrogate bill.
“The courts had a problem in the sense that it would create a conflict of powers because the courts are appointing guardians,” said then MP Marian Matthews, Albuquerque, D-Albuquerque. “They were pretty adamant, that was something we couldn’t do appropriately.”
Currently, the state requires legal guardians to be certified by a national group, but not licensing.
Matthews, a lawyer, said she was approached by the administration to sponsor the bill and met with the governor several times. Four other lawmakers became co-sponsors, and the bill passed unopposed by both Houses.
Supreme Court Justice Shannon Bacon said last week that the judiciary approved the revised bill, particularly because it included funding a new division of the courts’ administrative office to review guardianship files. That means three full-time employees review the estimated 500 reports filed each month by guardians and restorers to keep the courts informed of the welfare and finances of the person under guardianship.
Supreme Court Justice Shannon Bacon
“Your (the auditor’s responsibility) responsibility will take an extra look, year after year, at every annual report filed in retrospect on the court record,” said Bacon, a former district judge who was a longtime advocate of reform.
At this time, the judges have no investigators or other personnel to check the accuracy of such reports. This is essentially the only routine surveillance of the nearly 5,000 active guardianship or conservatory cases in New Mexico.
District Judge Nancy Franchini of Albuquerque said during a hearing in March that she has more than 200 guardianship and conservatory cases in her court.
“That’s a good calculation; It will drive guardianship, “she said,” but it all depends on the funding required, which must be recurring. “
Court visitor
Families have long complained about failing to realize the consequences of a drastic legal battle in bringing a loved one, possibly with memory loss or dementia, unable to care for themselves into legal guardianship.
While some family members or friends become guardians, others have watched helplessly as court-appointed professional guardians sell a loved one ‘s possessions and homes without considering, or perhaps ignoring, family members’ contributions.
Alice Liu McCoy, the executive director of the New Mexico Developmental Disabilities Planning Council, which oversees the State Office of Guardianship, told lawmakers earlier this year that the Guardianship Office will be required to submit an annual report and to recruit and train court attendees for the new program which will begin in multiple jurisdictions of the state.
“We envision a system where court visitors can visit every single person (under guardianship) in their homes,” she said. “You will have your eyes and ears on the ground.”
Happy Angelica Rael
Senior Albuquerque attorney Feliz A. Rael testified in support of the revised law in the March legislature. “I wish we had a pilot court attendees program a long time ago,” she said. “To be honest, I think it has the potential to save lives.”
Laurie Hedrich, president of the New Mexico Guardianship Association, told the House Government’s Election and Indian Affairs Committee that her group supported the move “particularly because it encourages conscious thinking about the least restrictive alternatives that should formalize what is already should be done in protected procedures. ”
“We hope that fewer guardians will be granted when there are alternatives, limited guardianship where full guardianship is not required, and cessation of guardianship when it is no longer required,” she said.
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