Senate Bill 35 has become New Mexico’s newest guardianship statute. This is another small step in reforming the broken guardianship system in New Mexico.
Desperately needed protections are now in place for the alleged incapacitated individual (AIP) who finds himself/herself in the center of an Emergency Temporary Guardianship. These safeguards bar the temporary guardian from liquidating the AIP’s property and moving them out of their residence without express approval from the judge.
Another important feature of SB 35 is the firm timeline requiring judges to hold a hearing within 10 days of the filing of the petition. This allows the AIP, the attorney if the AIP has one, and all interested parties the opportunity to provide evidence in a timely manner instead of waiting for months to appear in court.
This is fantastic progress; however, what happens if the individual is appointed a permanent guardian? What safeguards exist then? What protection is there from predatory guardians, conservators and attorneys? Who has the power and responsibility to protect truly vulnerable individuals from becoming exploited?
Ultimately, it is the district judge who wields this power to decide the fate of the protected person. In order for the individual’s human rights, civil rights and financial status to be preserved the following must occur:
1. District judges must honor all legally prepared documents such as wills, trusts and powers of attorney with no changes. Honor family members as the first priority of appointment if named in the legal and binding estate documents.
2. An attorney and/or GAL – guardian ad litem – must be provided by the state of New Mexico for every individual entering the permanent guardianship process.
3. Provide the same safeguards found in SB 35 to every individual entering the permanent guardianship process.
4. Provide a penalty for any perpetrator found to be in violation of the protected person’s human and civil rights and financial status.
We want to thank the sponsors of SB 35 for their leadership and continued concern for all vulnerable New Mexicans – the elderly, veterans and the disabled – who are in the guardianship system.
The position taken in this op-ed is supported by Albuquerque residents David Heeter and Jorja Armijo-Brasher, members of the NM Family Guardianship Conservatorship Coalition; the coalition itself; Rick and Terri Black, executive directors of the Center for Estate Administration Reform; and Kerri Kasem, founder of Kasem Cares and a radio host.
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