If you are an old person with money, and either with a quarrelsome family or no family at all, you are a little better off in New Mexico this year than you were last year.
You can still have your freedom snatched away by a court, and your future placed in the hands of a stranger, to protect you from your own incompetence. But you have more rights than last year. An update to the guardianship law was passed in the 2019 legislative session, improving the rights and remedies for the so-called protected/incapacitated person.
(Guardianship refers to the person. Conservatorship refers to the person’s financial assets.)
The system exists for good reason. Elderly persons can become incapacitated, unable to care for themselves or make rational decisions on their own behalf. If family members are not meeting that need, the system has a remedy. The intention is clearly benevolent.
But the results can be awful.
The New Mexico guardianship system at its worst was covered by an investigative series in 2016 by the Albuquerque Journal, which explained that, once appointed by a court, a professional guardianship agency has complete control over the client’s personal life and financial assets, including the authority to spend all the client’s money, sell the client’s property, make medical decisions and prohibit family members from seeing the client.
This can start with family members disagreeing about how the elderly person is being treated. For example, one sister is taking care of Mom and another sister suspects that the first sister is stealing Mom’s money. The second sister calls a lawyer, the case goes before a judge, and they both lose control to a professional conservatorship company. In reports of these stories, often the family members say later they had no idea that the court would appoint a professional who would fritter away Mom’s savings.
The other scenario involves an individual who has no family and no one helping. In that case the phone call might come from a neighbor or another acquaintance.
After the Journal series, the New Mexico Supreme Court created a study commission that released its final report in December 2017. Legislation followed, with bills in both 2018 and 2019, sponsored by Senator James White (R-Albuquerque). The legislation contains many features designed to protect the rights and choices of the protected person, impose standards on professional guardians and conservators and require financial accountability.
But Senator White acknowledges the legislation is less than perfect. At best, financial conservatorship is expensive. And there are still loopholes. While no legislation is planned for this coming session, he acknowledges future legislation may be needed.
Among the improvements:
The alleged incapacitated person will be able to participate in the court hearing that determines his or her incapacity. A future review is possible, to determine whether the incapacity is no longer present.
Professional conservators will have to file reports with the court. The court may order an audit, which would be conducted by specially assigned employees of the state auditor’s office.
Family members will have increased access and will be able to file grievances.
The professionals will now be required to be certified according to a national standard. Susan Bennett, a champion of ethical guardianship, is coordinating New Mexico’s first and only class for these professionals, at CNM.
However, Senator White observed the new law provides no follow-up to the certification and no way to decertify a professional who violates the standards.
While lawmakers and courts have made progress in making the system more accountable, it is still a system of last resort for those who have not provided themselves with a better alternative.
Any family is still way better off by planning ahead while the elderly family member is competent to make his or her own choices.
Triple Spaced Again, © New Mexico News Services 2019