Copyright © 2021 Albuquerque Journal
Over the past year, dozens of people in New Mexico allegedly incapacitated have been under the control of a corporate guardian – often a stranger – without notice or even a trial after a judge was told they are in danger, immediately and to be irreparable harm.
Approval for such temporary emergency care is considered necessary in some cases. However, advocates of guardianship reform and a state Supreme Court judge say the longstanding emergency procedure has been abused – sometimes to the detriment of so-called protected individuals and their loved ones.
A new study group appointed by the state’s Supreme Court hopes lawmakers will introduce more legal protection in January for people ending up in temporary guardianship or care.
These legal steps usually lead to the immediate loss of many rights and autonomy of the protected person and make it difficult for families or loved ones to reverse or change them once on the spot.
“We want to take a lot of extra security precautions so that they cannot be abused by anyone, as we recognize that there still has to be a way out in case of a real emergency,” said Shannon Bacon, judge of the state Supreme Court, last before a legislative committee in August.
Shannon Bacon, NM Supreme Court Justice
The proposed legislative changes were recommended earlier this month by the new 24-person Guardianship Study Group, which includes lawyers, guardians and judges. The group is called WINGS, for an interdisciplinary network of guardianship actors.
Governor Michelle Lujan Grisham would have to put the bill on her agenda for the 30-day session that begins January 18, which is uncertain. Given the latest record revenue forecasts, lawmakers will have to tackle a “weighty agenda,” a governor’s spokeswoman said last week.
“Nevertheless, we are reviewing suggestions on the subject of guardianship and holding discussions with stakeholders and the legislative leadership,” said spokeswoman Nora Meyers Sackett.
The proposed law would require more judicial oversight and more reporting from an appointed guardian at the start of a temporary guardianship.
Currently, there is “little to no supervision at the start of a particular case and this leads to potentially poor outcomes,” Bacon said during a recent WINGS meeting.
The proposed legislative changes would require a judge to hold a hearing within 10 days of the granting of temporary guardianship by a court. The hearing should decide whether the provisional guardianship should be continued and whether all interested parties can participate.
Currently, the law does not provide for a time limit for the first hearing and it can take months before a person allegedly incapable of acting is brought before a judge.
The proposed reform would also reduce the duration of a temporary guardianship or guardian to a maximum of 30 days. If there is an oral hearing and for an important reason, a 60-day grace period can be granted.
Current law provides that a temporary guardianship may not exceed 60 days, with the exception that the temporary guardianship can be extended by a maximum of 30 days by order of the court.
Temporary guardians or carers appointed to oversee the finances of an allegedly incapacitated person would be prevented from selling or disposing of that person’s property without special permission from the court.
Bacon, a former Albuquerque district judge, said in the past, “I would get an emergency petition claiming mom is in a nursing home and her son got her debit card and is withdrawing money as soon as he can. So let’s put an end to this with an emergency aid petition, and that’s appropriate. “
But there have been inappropriate uses, she added.
“Lawyers will ask for emergency care and it may be legitimate to have, but they just don’t do their job and they will say give me 30 more days, give me 60 more days and the judge will kick the can” on are on the way and not presented with the necessary evidence, clear and convincing evidence that the person needs guardianship or care, ”Bacon told the Legislative Committee last August.
Under state law, any interested person can petition a court to place someone under temporary guardianship. Such petitions often claim that the person is unable to run their own affairs and needs immediate protection for their own safety or to prevent financial exploitation.
This procedure, Bacon said, “allows someone with a very simple petition to claim that a guardian must be appointed immediately and that we will come back to you later and prove it.”
Judges are not required to hold a hearing or notify the individual or their family members before granting an emergency petition, which has resulted in suspected incapacitated persons being removed from their homes, their bank accounts frozen or transferred, and their property being confiscated.
Rio Hamilton recently took his mother, Dorris Hamilton, on an outing. The younger Hamilton received his mother’s guardianship after a 22-month legal battle. (Courtesy Rio Hamilton)
The Journal has reported cases in recent years where close family members learned that their loved one had been placed under temporary guardianship with a professional guardianship company and had to wait months for a judge to challenge the guardianship, its terms, or the designated guardian or Supervisor is appointed.
One such case involved a retired Las Cruces educator, Dorris Hamilton, whose son spent nearly two years convincing a judge to allow him, rather than a professional guardianship firm, to become his mother’s guardian.
A lawyer had filed a petition alleging that Hamilton needed emergency guardianship because of memory loss, vascular dementia, hoarding behavior, and “possibly” the subject of financial exploitation. Hamilton’s son, who was outside the state at the time, claimed he learned of the incidents a few weeks later and never approved the petition.
The legally mandated to advise the judge on whether a person should be placed under guardianship can collect fees for their work from the estate of the protected person.
The State Administrative Office of the Courts, which last summer identified around 6,000 people under guardianship across the country, has no information on the number of temporary emergency guardians granted annually.
But a journal review of online court minutes identified more than 60 guardianship cases filed last year that included the appointment of professional, non-family guardians.
The vast majority of these cases arose as temporary guardianship. And most of the time, an initial hearing in the case did not take place for several months. Record sheets for cases involving non-professional guardians are not easily accessible on the State Justice website.
In cases of temporary emergency care, a guardian can be appointed because the supposedly incapacitated person has no family nearby or their family members are not considered suitable to become guardians.
“It is always important in law to strike a fair balance between the real emergencies in which an emergency guardian is appointed for a very short time until the parties have the opportunity to go to court and discuss this in front of a judge,” said Brwyn Downing, executive director of the senior law firm in Albuquerque. “However, I believe that it is more common knowledge that this has been misused in our current system.”
The fact that a family member or attorney “can go to a judge and have him issue an extraordinary emergency order without the person being placed under guardianship being aware of it until served is fair” … it can be shocking and completely inappropriate in certain cases, “Downing told the Journal.
During the WINGS discussion on the proposed changes, Alice Liu McCoy, Executive Director of the State Planning Council for Developmental Disabilities, supported the proposed changes.
The idea is to make temporary guardianship “a rare case,” she said. “This shouldn’t be a procedure.”