Missing reports plague guardianship system
$5 daily fine is maximum penalty, but rarely imposed
What’s become of Elizabeth Hamel? Hamel is among dozens of people placed under a legal guardianship or conservator in southern New Mexico over the past 20 years whose welfare is unknown — at least according to state district court records.
The scant court records available to the public show that Hamel was found to be a person “in need of protection” by state District Judge James T. Martin, of Las Cruces, who assigned a private company as her guardian/conservator in 2010.
Nothing in the online court docket sheet indicates that Hamel’s case has been closed. But since being appointed, Advocate Services of Las Cruces hasn’t filed any annual reports about Hamel’s well-being or finances, the docket sheet shows.
There’s no indication as to whether she is dead or alive, or if the guardianship/conservatorship has been revoked.
State law requires reports to be filed annually with the court in guardianship cases.
“We did get behind, and we’re catching up,” Sandy Meyer, the owner of Advocate Services, told the Journal last week.
Meyer declined to discuss any specific case, citing confidentiality rules.
But she said no one from the 3rd Judicial District Court in Las Cruces had contacted her agency to notify her of missing reports. She also told the Journal that annual reports were filed in some cases but weren’t recorded by the court clerk’s office.
A court official in Las Cruces said he had no knowledge of that happening.
David Borunda, the court executive officer for the 3rd Judicial District, also said he was “surprised” and “disturbed” that the firm’s annual reports would be missing. “I will definitely be looking into it,” Borunda told the Journal.
Meyer’s firm has also been appointed in several cases outside the Las Cruces area in which records don’t show any annual reports having been filed.
Conservators and guardians are paid from an incapacitated person’s assets, or the state foots the bill if the person is indigent. It is a highly secretive system. The fees guardians and conservators receive are confidential and aren’t noted in the public docket sheet.
As New Mexico prepares for a new law, effective July 1, to help its ailing guardianship system, the state’s district courts still don’t have a uniform way to ensure guardian compliance with reporting laws that have been on the books at least since 1989.
State Sen. Jerry Ortiz y Pino, D-Albuquerque, said last week that he was disappointed that annual reports haven’t been filed in some cases.
“And I’m not surprised the courts wouldn’t know,” said Ortiz y Pino, a longtime advocate for reform. “That’s what we ran into over and over again, the lack of any kind of system to make it possible to log them (annual reports) in, let alone read them, let alone send somebody out to verify whether or not what they’re reporting is the truth. Those are the kind of things we shouldn’t be missing. Somebody should be at least saying, ‘Hey, you never did file a report.’”
Outside lifelines
For those whose lives are controlled by a guardian or conservator, the annual report to the court is a lifeline to the outside world.
For judges who are supposed to oversee guardianships, the annual report is supposed to provide key information about the welfare of the protected person and the performance of those appointed to manage their lives and finances.
Many of those placed under guardianship or conservatorship have dementia, Alzheimer’s or other physical or mental difficulties.
The annual report asks for information about the status of the person, major decisions the guardian made in the past year affecting the person, what changes in living arrangements have occurred, and, in the case of conservators, what financial decisions, including the sale of the person’s assets, have occurred in the prior 12 months.
“Annual reports are important, because it’s the only way we know anything about the protected person,” said state District Judge Shannon Bacon of Albuquerque. “We don’t have the resources, whether it’s people resources or physical resources and the law doesn’t allow us to go out and visit people.”
There’s no statewide electronic tracking or any other alert system in place to notify judges of overdue reports.
But Bacon said the new law passed by the Legislature earlier this year gives judges discretion to allow family members or other interested parties to receive copies of annual reports. The wider circulation could provide eyes and ears to alert judges when reports are missing.
For now, Bacon uses a spreadsheet to manually track the due dates for annual reports in the guardianship cases assigned to her.
It’s not clear if other judges around the state have the same practice. But Borunda in Las Cruces told the Journal, “Normally, any missed obligations, we’ll send out a reminder.”
Typically, such cases can remain open for years, until the incapacitated person dies, or the guardianship ends.
Borunda said last September that the Las Cruces court administration hired a retired court clerk to begin updating the southern New Mexico district’s estimated 1,300 guardianship or conservatorship cases. So far, the review, which began with the cases filed in 1998, has progressed to the year 2008.
He said the district’s chief administrative judge, James T. Martin, the judge in Hamel’s case, will serve on a steering committee to help judges around the state prepare for changes of the new guardianship law.
The law allows public hearings in guardianship cases, provides for more notification to family members of such proceedings, requires conservators to post bonds and enables family members more visitation rights to their loved ones under guardianships or conservatorship.
Annual reports: Who’s in charge
The problem of missing annual reports is hardly new.
Back in 2008, a guardianship task force appointed by the Legislature reported that the “vast majority of guardians are not filing the required report, often because the guardian is unaware of the requirement to do so.”
Online court records as of last Monday showed no overdue annual reporting in at least 50 cases filed since 1990 in which Meyer or her company have been appointed as guardian or conservator or both.
Of more recently filed cases, at least eight are missing the required 90-day reports.
By comparison, a Journal review of another guardian company operating in Las Cruces, CNRAG Inc., shows better reporting compliance over the past five years.
Meyer, of Advocate Services, told the Journal last week that she has hired staff to catch up with the backlog, but disputed the number of cases involved.
She attributed the delay to the “quantity of emergent cases we have been receiving in the past six months.”
She said some protected people have died and some cases have been transferred.
State law requires the guardian to file a report with the court when a protected person has died.
Moreover, Meyer in an email told the Journal, “Some reports were not docketed at the time they were filed, which I have confirmed with the Courts.”
Borunda, of the 3rd Judicial District, said late last week that he couldn’t verify that. He said he checked with court staff and Judge Martin after the Journal inquired and hadn’t found the court clerk’s office at fault.
Meyer’s email said her company also wasn’t involved in some of the cases.
Asked to identify those cases, Meyer told the Journal, “I am certain you can look up cases on New Mexico Court Lookup.”
She added, “Again, we will be diligently looking at all our cases to see what is in arrears and will be addressing. Cannot answer as to why Courts have not docketed all reports.”
Since the Journal raised questions last week, Advocate Services filed annual reports for at least one protected person, Kay Guffey, who has been under guardianship and conservatorship since 2011. Since the company was appointed, no annual reports had been showing up in the online record. On Thursday, annual reports were filed for years 2017 and 2018, court records show.
The law allows judges to assess $5 a day in fines for an overdue report.
But Bacon said she isn’t aware of any judge who has ever imposed fines.
That remedy “doesn’t accomplish a whole lot,” Bacon said. “If the goal for us is to get the information, that’s more important than fining somebody.” She said most cases involve lay people as guardians.
What has worked in her court is the reminder letter Bacon sends to a guardian with a deadline by which the report must be filed.
Several judges in the Albuquerque area have sent such letters, online court records show. But, at times, there is still no response.
For instance, the docket sheet shows District Judge Beatrice Brickhouse of Albuquerque in 2015 sent a letter to Guiding Star, a New Mexico guardianship company, to remind the firm to file the required reports.
At that point, the guardianship case assigned to Guiding Star was six years old, the docket sheet shows, and not a single annual report had been filed.
Despite the judge’s letter, there’s no indication on the docket sheet that an annual report was filed. The last filing in the case was the judge’s letter on July 23, 2015. A Journal call to Guiding Star for comment wasn’t returned last week.
THOSE ARE THE KIND OF THINGS WE SHOULDN’T BE MISSING. SOMEBODY SHOULD BE AT LEAST SAYING, ‘HEY, YOU NEVER DID FILE A REPORT.’ STATE. SEN. JERRY ORTIZ Y PINO