Even as two committees appointed by the state Supreme Court begin the detailed work of coming up with plans to implement reforms to New Mexico’s troubled guardianship system, there are constant reminders that much remains to be done – even after the Legislature approved significant improvements in this year’s session.
No example of the problems is more glaring than the missing annual reports described by Journal investigative reporter Colleen Heild in a Journal story published March 25.
Her story began with a simple question: “What’s become of Elizabeth Hamel?”
Hamel had been found to be a person in need of protection by Judge James T. Martin of Las Cruces, who assigned a private company as her guardian/conservator in 2010.
But nothing in online court docket sheets – what have been the only public window into this highly secretive system – indicated that required annual reports had ever been filed in Elizabeth’s case. There was no indication as to whether she was dead or alive.
And her case is hardly unique. A check by the Journal found dozens of cases with missing reports in southern New Mexico.
The owner of the commercial guardianship company appointed by Martin, Advocate Services of Las Cruces, acknowledged that the company “did get behind,” but said we are “catching up.”
Eight years is a lot of catching up to do.
These reports, which a court-appointed rules committee will hopefully beef up to at least include bank statements of people under guardianships, are a lifeline to the judge from protected people – especially those with no living family members or whose families have been shut out by corporate guardians for having the audacity to complain about profligate spending or poor treatment of their loved ones.
Martin is a member of the steering committee, which includes judges and legislators, that is tasked with coming up with ways to implement the reforms approved by the 2018 Legislature. He clearly has first-hand knowledge of a significant problem – namely no system in place to make sure annual reports reach the judge in a case.
One of the legislation’s most important reforms was to add much-needed transparency to the system. The sponsor of the reform legislation, Sen. Jim White, R-Albuquerque, is also a member of the steering committee, as is Rep. Damon Ely, D-Corrales.
Meanwhile a separate court rules committee will have the opportunity to do by rule some of the things the statute didn’t cover – but that were recommended by a Supreme Court-appointed task force last year, ably chaired by retired District Judge Wendy York.
The task force of lawyers, judges, industry professionals and family members recommended a number of changes including requiring mediation in contested cases, requiring national certification of professional guardians and conservators and addressing the current practice in which the petitioner’s attorney can “stack the deck” in favor of a guardianship by recommending to the judge who should serve as guardian, guardian ad litem, court visitor and health care expert.
This is an industry that has been rife with conflicts that work to benefit the for-profit professionals and to relegate the families of people in guardianships to second-class status – if that. In some cases, concerns of what professionals described as “emotional” family members can lead to their being virtually cut off from visiting, or allowed to do so only under strict supervision of the guardian.
Executives of one guardianship company are charged in federal court with stealing millions of dollars from clients to fund extravagant lifestyles. This all happened under the noses of the judges who made the appointments and were supposed to be looking after the protected persons – primarily through annual reports.
So millions of dollars have been siphoned off undetected under the current reporting mechanism. Enough said.
Meanwhile, the rules committee has come under legitimate criticism for being dominated by insiders and lacking any significant voice representing families. In other words, critics say it is mostly lawyers writing rules for themselves.
But this committee is subject to Supreme Court supervision, and the court should require it to post the schedule of its meetings and allow outside input – since it isn’t built in. And it should take a hard look at recommendations. The guardianship system has tremendous impact on some of our most vulnerable people and their families. Real progress has been made, but there is much more to do for it to positively affect those individuals and their loved ones. It is the responsibility of these committees to make that happen – not to take the heat off the industry or make life easy for the judiciary.
This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.
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