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Guarding The Guardians: The Challenge Of Protecting The Incapacitated

on October 21, 2017 - 9:17am
By LAUREN JOHNSON
Dabney and Griffith Law Office
Community Internship Collaboration Intern
 
New Mexico’s Guardianship System provides the statutory framework for guardianship and care to be provided to incapacitated adults deemed to not possess the mental ability to care for themselves and their assets any longer.
 
Due to the expense of Guardianship proceedings these adults must have sufficient financial resources in order to afford the court proceedings necessary for the appointment of a guardian. They also must have no other form of intervention, such as a power of attorney or designated decision maker (usually a trustee), set in place.
 
When one is declared incompetent they become a ward and are appointed a guardian who then acts as their surrogate decision-maker concerning their place of residence and health care decisions. A visitor (generally a social worker who reports to the court on the person’s situation) and a guardian ad litem (an attorney who represents the alleged incompetent person and reports what their best interests are to the court) are appointed by a judge to act only for the alleged incompetent person.
 
A conservator, who makes decisions about and deals with their financial matters, also is usually appointed by the court. The powers of these appointees can be limited by the court depending on the alleged incompetent person’s capabilities and needs.
 
The Guardianship procedure is statutory, and is the only method available under New Mexico law for appointment of a guardian or conservator. Those who most commonly qualify for appointment of a guardian or conservator include adults with a significant brain trauma injury, developmental disability, behavioral health disorder, Alzheimer’s, dementia, or other conditions that produce similar effects. In these situations when the person is unable to make or communicate their decisions, a Guardian is appointed by the courts. In cases of mental illness, a trained Mental Health Treatment Guardian is appointed.
 
In cases where there are significant conflicted family disputes, or when there is no family to step in for the incapacitated person, the Guardianship System is a viable option that provides care, decision making, and legal services through contracts with attorneys, guardians ad litem, and court visitors. The System does not come without its drawbacks and risks, however.
 
Across the nation, and particularly in New Mexico, there have been cases of fraud in Guardianship proceedings. Some families have come forward claiming that their family member has been wrongfully entered into guardian or conservatorship proceedings against their will, and both the member and their assets have been significantly mismanaged. While there does seem to be a rise in such cases of fraud, it has not yet become a major issue in Los Alamos. So far, Los Alamos has only dealt with two or three cases of alleged abuse in attempts to have a guardian or conservator appointed in court.
 
A Los Alamos Police Department Officer commented that he feels fraudulent cases are not as big of an issue in Los Alamos.
 
He said, “Los Alamos County is unique, in that most of the elderly have been able to either have a solid base of money or that someone in their family does. We, as a county, take pride in being a county that has the education that we do, so that helps in regards to people being very careful in picking either a guardian or an assisted living situation. The addition to that is that there are only three places in Los Alamos County that are assisted living. I believe that helps keep the people honest, as it is a small community.”
 
While our small community may not have major problems with the Guardianship System, the potential for finding oneself in an undesirable situation certainly exists. The best way to avoid any such situation is by remaining informed and prepared.
 
Many of the reported problems with the guardianship system stem from neglect or purposeful fraud by appointed guardians and conservators; including fraudulent billing,
exploitation, moving the ward to different, unnecessary living arrangements and selling their property and assets, unnecessary charging of expenses, and false filings and records. This generally arises when someone other than a family member is appointed as a guardian; however, it is not unheard of among family members as well.
 
An article about cases of guardianship mismanagement was published in the Albuquerque Journal in November 2016. “Who guards the guardians: A Series by Diane
Dimond,” is a five-part series highlighting the risks and caveats of the Guardianship System. The article contains cases of several Albuquerqueans who felt they were taken advantage of in the Guardianship System.
 
In one such case Albuquerque native Mary Darnell was serving as her mother’s caretaker when Darnell’s sister filed a petition requesting the courts to declare their mother as incapacitated and appoint outsiders to manage her affairs. The petition was granted. Darnell’s mother was entered as a “ward of the state,” appointed a guardian, her civil rights were removed, and she was referred to as “an adult incapacitated person” without even appearing before the Court. Darnell and her other siblings, who had not initiated the proceeding, felt helpless in the case and found themselves separated and isolated from their mother.
 
Over the next few years, Darnell found her mother’s estate being sold off, drained of its assets, and mismanaged. By the time her mother died seven years later, her estate, which had an estimated value of $5 million when the court first took possession of it, had dwindled to less than $750,000.
 
In addition, the 17-acre estate had been divided and sold off without the children’s consent by the appointed conservator. More cases, as well as an in-depth look and analysis into the Guardianship System, can be read in the full series – found at https://www.abqjournal.com/898385/who-guards- the-guardians- a-5- part-series- by-diane-dimond.html.
 
Common complaints concerning the New Mexico Guardianship System cite the fact that New Mexico’s poor financial situation and consequent lack of funding are the reasons that there are no in depth audits or reviews of the performance of the conservator of the ward’s assets.
 
Many who are involved in the Guardianship System feel that there is no accountability between the judges who oversee the cases and the guardians who are supposed to report to them.
 
When asked what he felt the key to raising accountability between guardians and judges was, a Los Alamos Police Department Officer stated, “The largest obstacle that is in the way of the judges is poorly written and undefined legislation. Not only that, but with the state being overall a poor state, many of the people within the state cannot afford to have their attorneys work all the way up to the Supreme Court where case law could set precedent for future problems.”
 
Currently, in Albuquerque there are ten judges that handle guardianship cases, eight of whom handle a load of more than 1,000 cases each. While this has led many to feel that this reduces accountability between judges and guardians because the size of their caseload prevents in-depth attention, this is not yet as much of an issue in Los Alamos. As a result of guardianship cases being handled at the District Court level, there are three judges in the First Judicial District in Santa Fe that handle these cases.
 
Because the Guardianship System comes with inherent risks of fraud, there are several measures that should be taken to minimize the risks. The first is for persons to be very careful when selecting their future designated decision maker, and use Guardianship as a last resort.
 
Guardianship removes many rights of an alleged incompetent person; including the right to manage money, vote, marry, sign contracts, determine medical care, and monitor domestic visitors. In addition, the alleged incompetent person does not have the power to choose their guardian in court proceedings. In the event that an alleged incompetent person has not selected anyone to manage their estate through a Power of Attorney or trust prior to being declared incapacitated, they can be entered into the Guardianship System if deemed necessary, and the courts appoint the guardian and or conservator.
 
One way to avoid the risks that come with the Guardianship System is for a person to utilize written Powers of Attorney for health care and financial issues, and to choose wisely when deciding upon their designated Attorney-in- Fact (A Power of Attorney is a legal document in which a person can authorize a surrogate – known as an Attorney-in- Fact – to act for them).
 
An intervivos or living trust is another way to avoid the expense of court initiated by guardian or conservatorship proceedings. An Attorney-in- Fact is designated and appointed before a person becomes incapacitated.
 
Often, a person will appoint a springing power of attorney, in which they can specify that the Attorney-in- Fact will only come, or “spring”, into effect when two separate doctors have diagnosed them as unable to care for themselves and manage their assets. Some choose to have their Attorney-in- Fact come into effect immediately upon signing, while they are still capable of managing themselves, but wish someone else to have the power to act immediately.
 
By appointing an Attorney-in- Fact, persons have control over who will manage their affairs, and it is a much surer option that is associated with less risks. Even when appointing an Attorney-in- Fact one must be extremely careful. There remains the potential risk for the designee to mismanage the person’s assets and health.
 
An additional measure that can be taken to combat this risk is to appoint multiple Attorneys-in- Fact. There are several ways to do this. The first is to appoint each Attorney-in- Fact with independent authority. This results in them having the responsibility to manage any task that is authorized by the Power of Attorney document.
 
In this case, they do not need to consult the other before making a decision; as their responsibilities are separate. The other, perhaps safest way, is to appoint more than one Attorney-in- Fact and stipulate that they must reach an agreement before making any decisions concerning the person’s assets or health.
 
A Power of Attorney can be revoked at any time before the person becomes incapacitated. After the person becomes incapacitated, however, the legal battle to revoke a
Power of Attorney becomes more difficult.
 
Another way to avoid the risks of court initiated by guardian or conservatorship proceedings is for a person to create a living trust before becoming incapacitated. If they choose to do so, they usually name themselves as trustee, but name a family member, friend, or trust company as their successor trustee. A successor trustee manages their financial affairs should they become incapacitated. This eliminates the need for conservatorship court action. In order to eliminate the necessity of guardianship court action, however, a Power of Attorney for Health Care (Advanced Health Care Directive) is still necessary.
 
As a result of the considerable loss of civil rights when entering into, and the inherent risks involved, the Guardianship System should be considered only after these alternative options are shown not to exist for the individual. If one finds themselves in an undesirable Guardianship situation however, their recourse may be limited. The Guardianship System requires intense secrecy and privacy concerning the cases, thus making it hard for family members to obtain information and be involved in the alleged incompetent person’s life. Despite this, there is still action that can be taken.
 
A Los Alamos Police Department Officer advised, “A report to law enforcement could mean that police are able to determine that there is a criminal aspect to the situation, which would then be able to remove the elderly from the poor situation.”
 
In addition to this, if one has a grievance against the Guardianship System, their complaints can be filed by sending a written complaint into the Secretary of Human Services Department and the Manager of Guardianship System at 625 Silver Av. SW Albuquerque, NM 87102.
 
As with most legal systems, New Mexico’s Guardianship System possesses both virtues and flaws. In order to navigate these issues, one should be educated about the system and explore their options carefully before committing to any such surrogate program; Guardianship or otherwise.

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