Reforms to protect the most vulnerable people wanted

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Copyright © 2021 Albuquerque Journal

Over the past year, dozens of people in allegedly incapacitated New Mexico have found themselves under the control of a corporate guardian – often an outsider – without notice or even a court hearing after a judge was informed that they risked immediate and irreparable danger. prejudice.

The authorization of such emergency temporary guardianship is considered necessary in certain cases. But supporters of guardianship reform and a state Supreme Court judge say the long-standing emergency process has been abused – sometimes to the detriment of so-called protected people and their loved ones.

A new task force appointed by the state’s Supreme Court is hoping lawmakers will put in place more legal protections in January for people who find themselves under temporary guardianship or trusteeship.

This legal action usually results in the immediate loss of many rights and autonomy of the protected person, and has made it difficult for families or loved ones to undo or change once in place.

“We want to put in a lot of additional safeguards so that no one can abuse them, recognizing that there must always be a way for what is a real emergency,” Shannon State Supreme Court Justice said. Bacon to a legislative committee last. August.

New Mexico Supreme Court Justice Shannon Bacon

The proposed legislative changes were recommended earlier this month by the new 24-member Guardianship Study Group which includes lawyers, guardians and judges. The group is called WINGS, to work in an interdisciplinary network of supervisory actors.

Governor Michelle Lujan Grisham is expected to put the bill on her agenda for the 30-day session that begins Jan. 18, which is uncertain. Given recent projections for record revenues, lawmakers will already have a “heavy agenda” to deal with, a spokeswoman for the governor said last week.

“That being said, we are reviewing the proposals on the question of trusteeship and are engaged in conversations with stakeholders and legislative leaders,” said spokesperson Nora Meyers Sackett.

The proposed legislation would require more judicial oversight at the start of a temporary guardianship, and more reporting by an appointed guardian.

Currently, there is “little to no monitoring at the start of a particular case and this leads to potentially bad results,” Bacon said at a recent WINGS meeting.

The proposed changes to state law would require a judge to hold a hearing within 10 days of a court granting temporary guardianship. The hearing must decide whether the temporary guardianship should continue and all interested parties may attend.

Currently, the law does not set a time limit for the initial hearing and months can pass before a person presumed unable to appear before a judge.

The proposed reform would also reduce the duration of a tutorship or temporary curatorship to a maximum of 30 days. If a hearing is held and there is a valid reason, a 60-day extension may be granted.

Current law states that temporary guardianship should not exceed 60 days, except that by court order, temporary guardianship can be extended for no more than 30 days.

Temporary guardians or custodians, who are appointed to oversee the finances of a presumed incompetent person, would be prohibited from selling or disposing of that person’s property without the express permission of the court.

Bacon, a former Albuquerque State District Judge, has said in the past “I would receive an emergency petition (which) alleges mom is in a nursing home and her son got hold of her. debit card and withdraw funds as quickly as he can. So let’s end this with an emergency petition, and it is appropriate. “

But there have been inappropriate uses, she added.

“The lawyers are going to ask for emergency guardianship and maybe it’s a legitimate need, but they just aren’t doing their job and they’ll say, give me 30 extra days, give me 60 extra days, and the judge will kick the box on the road and not receive the necessary evidence, clear and compelling evidence that the person is in need of guardianship or trusteeship, ”Bacon told the legislative committee in August last.

Unconscious families

Under state law, any interested person can apply to a court to place someone under temporary guardianship. Often, these petitions allege that the person is unable to manage their own affairs and needs immediate protection for their own safety or to prevent financial abuse.

This process, according to Bacon, “allows someone on a very simple petition to claim that a guardian should be appointed immediately and we will come back to you later to prove it.”

Judges are not required to hold a hearing or inform the person or their family members before granting an emergency request, which has resulted in the eviction of presumed incapable persons from their homes, freezing or the transfer of their bank accounts and the seizure of their property.

Rio Hamilton is driving her mother, Dorris Hamilton, on a recent outing. Young Hamilton was granted guardianship from his mother after a 22-month legal battle. (Courtesy of Rio Hamilton)

The Journal has reported in recent years of cases in which close family members learned after the fact that their loved one had been placed under temporary guardianship with a professional guardianship society and had to wait months to appear before a judge for challenge the guardianship, its conditions or the designated specific guardian or curator.

One of those recent cases involved retired Las Cruces educator Dorris Hamilton, whose son spent nearly two years trying to convince a judge to allow him, rather than a professional guardianship company, to become his mother’s guardian.

Lawyer had filed a petition claiming Hamilton needed emergency guardianship because she suffered from memory loss, vascular dementia, hoarding behaviors and “may” have been the subject of financial abuse . Hamilton’s son, who was living out of state at the time, said he learned several weeks later of what had happened and never approved the petition.

By law, persons appointed to advise the judge on whether a person should be placed under guardianship may receive a fee for their service from the estate of the protected person.

Corporate abuse

The state courts administrative office, which had identified around 6,000 adults living in guardianship statewide as of last summer, had no data on the number of emergency temporary guardianship granted each year.

But a Journal’s review of online court records sheets identified more than 60 guardianship cases filed in the past year involving the appointment of professional non-family guardians.

Among these cases, the vast majority came from temporary guardianship. And more often than not, a first hearing in the case did not take place for several months. File sheets for cases involving lay guardians are not readily available on the state justice website.

Corporate guardians may end up being appointed in temporary emergency guardianship cases because the presumed incapable person has no family living nearby or the person’s family members are not considered suitable. to become tutors.

“It is always important in the law to strike a proper balance between those true emergencies where an emergency temporary guardian is appointed for a very short period of time until the parties have an opportunity to go to the court and discuss it in front of a judge, ”said Brwyn Downing, executive director of the Senior Citizens Law Office in Albuquerque. “However, I think it is increasingly recognized that this has been abused in our current system.”

It is… it can be shocking in some cases, and totally inappropriate, ”Downing told the Journal.

During the WINGS discussion on the proposed changes, Alice Liu McCoy, Executive Director of the State Developmental Disorders Planning Board, supported the proposed changes.

The idea is to make temporary guardianship “a rare case,” she said. “It shouldn’t be a must-do procedure. “


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