Bipartisan bill would reform guardianship system
Two Albuquerque lawmakers have introduced a 165-page bill that would revamp the way state courts handle adult guardianship cases, mandating open court records, more oversight and auditing.
Republican state Sen. Jim White said he was approached by constituents who raised concerns about guardianship laws even before recent high-profile criminal investigations disclosed widespread problems with two nonprofit guardianship companies. The owners and managers of the firms in both cases have been charged with stealing millions of dollars from clients, and the need for more protection of vulnerable people in guardianships has drawn national attention.
In one case, the Albuquerque firm Ayudando Guardians and its owner, financial manager and family members were charged in U.S. District Court with multiple counts in connection with the theft of some $4 million from trust accounts of more than 100 clients. The defendants were accused of using the money to purchase vehicles, and to pay for rent, personal expenses, vacations and even a luxury box in The Pit to watch University of New Mexico basketball.
The case came to light when several employees of Ayudando approached federal agents in Albuquerque.
The second case involved a woman in Albuquerque whose children claimed that she and her $5 million estate were placed into a guardianship by a caretaker without their knowledge or consent.
“Unfortunately, folks have taken advantage of the system,” White said.
The bill’s co-sponsor is Rep. Gail Chasey, D-Albuquerque, who chairs the House Judiciary Committee and has a private law practice. Chasey did not return a telephone call seeking comment.
A guardian is appointed by a judge after a party or government agency petitions the court, saying a person cannot provide their own care or make legal decisions. Cases range from those involving individuals with developmental disabilities or dementia to those centering on a person’s trauma or mobility issues. In some cases, a guardian can have limited authority; in other cases, they have full control over an individual’s health care as well as finances and living accommodations.
In many cases, a parent can be appointed the guardian of a child, or a child can successfully petition for guardianship of aging parents. But if there is no family member who can or will become involved — as is the case with most Ayudando clients — the state or an agency can request that an outside organization or individual serve as guardian.
After recent abuses of the system, the state Supreme Court appointed a task force to recommend changes in guardianship laws. The bill will incorporate those changes, White said.
The guardianship statutes are complex, he said, and the effort during this legislative session is toward “a complete rewrite” of the laws. The Senate bill would:
Provide a notification system for family members and others who want to be alerted about hearings or changes in the guardianship of an individual.
Require bonds for nonprofits and agencies that handle guardianship assets, so if there is wrongful spending, funds can still be recovered.
Improve oversight of annual reports that are required of guardians, and provide for an electronic filing system and review.
Make it clear that guardians cannot deny visitations from family members without court intervention.
Finally, the bill would make it so that guardianship petitions and court actions, now sealed from the court record, remain public, except for medical information.
The large-scale legal changes would not normally be considered during a 30-day budget session, but White said everyone he has spoken with says the reforms are important and timely. The changes were approved by two interim legislative committees.
If the bill is passed and signed into law by Gov. Susana Martinez, it would not take effect until Jan. 1, 2019, and would require an appropriation of $1.6 million for the Administrative Office of the Courts.
White said Martinez is expected to allow the bill to be considered next week in the Senate Public Affairs Committee. A spokesman for the governor did not respond to an email seeking comment on the bill.
After recent abuses of the system, the state Supreme Court appointed a task force to recommend changes in guardianship laws. This bill will incorporate those changes.