Note: In New Mexico, there exists both
1) Rules (NMRA 1-079 (D) (7), (9); NMRA 12-314 (C) (9), (12)) and
2) Statutes (NMSA 45-5-303 (I); NMSA 45-5-407 (M)) (since 1953)
that allow the public’s access to information in both guardianship and conservatorship cases:
45-5-303 . Procedure for court appointment of a guardian of an incapacitated person.
I. A record of the proceedings shall be made if requested by the alleged incapacitated person or the alleged incapacitated person’s attorney or when ordered by the court. Records, reports and evidence submitted to the court or recorded by the court shall be confidential, except that the public shall be granted access to the following information:
(1) docket entries;
(2) date of the proceeding, appointment and termination;
(3) duration of the guardianship; and
(4) the name and other information necessary to identify the alleged incapacitated person.
So this Commission has effectively voted to require that the Courts obey both laws and rules.
This is not a “groundbreaking” event that resolves a “clerical error” as mischaracterized by retired 2nd Judicial District Judge and Commission Chair Wendy York (who’s own courtroom broke these same rules & laws during her 7-year tenure as a judge) but the first of what promises to be much whitewashing of the state’s Supreme Courts’ own culpability in allowing their lower-court Judges and their Judges’ appointees to violate Rules of Judicial and Attorney Conduct, and daily violate laws – with absolutely no recourse to the affected family(ies).
With this important context established, here is the Albuquerque Journal’s reporting of this event:
The rules guiding adult guardianship cases provide for too much secrecy and not enough notice of court hearings to families of the incapacitated adults, members of the New Mexico Adult Guardianship Study Commission heard last week.
In its second meeting, the commission, appointed by the New Mexico Supreme Court to study the state’s system of adult guardianships, listened to dozens more stories from families outraged by the “racket” of the court oversight process for their elderly or infirm family members.
While the first two meetings have focused on bringing all 16 commission members up to speed on the often complicated guardianship process, Commission Chairwoman Wendy York, a retired state district judge, said the panel is starting to home in on recommendations to improve the system.
“We are hearing common themes, so it gives us the beginning of a road map,” York said after the all-day meeting. “We are hearing about notice of court hearings, involvement of family members, and what is the appropriate line to draw between complete access to information and privacy.”
The themes are arising out of public comment from families affected by the guardianship system, which is the legal process that oversees the lives and finances of incapacitated adults when family members can’t do it – often because they cannot agree on a course of action. The court appoints third-party nonrelatives and corporate professionals to determine how the incapacitated adult, often times elderly, will live and how his or her money will be spent.
But the process is secret, which is a protection for the vulnerable adult’s information but also, critics say, a protection for unscrupulous people looking to get rich off a family’s estate.
One lawyer offering public comment Friday said the secrecy of the process raises “due process concerns.”
Brian Vogler told the commission that his client needed to get some information from his guardian, but the guardian declined to provide that information.
“(It) seems there needs to be a window in to see how the court is proceeding,” Vogler told the commission. “It’s hard to balance everyone’s needs.”
After the meeting, he said his inability to see how judges behave or have behaved prevented him from accessing the nuances of the situation. He said he wanted to speak to the commission to provide a perspective that the secrecy “doesn’t just impact families.”
The commission on Friday took a step toward making certain guardianship case dockets are available on the state court system’s public website, where they are scheduled to appear later this month under an ongoing court effort to streamline case files.
Commissioners voted to have York send a letter to the court asking that the records access changes be made a priority if the implementation doesn’t happen as planned on May 23.
Until now, despite assurances from court officials that the documents were public, they have not been available on the website, nmcourts.com. (Note: Until the Courts of New Mexico obey the Rules & Laws, the people conscripted into guardianship by the courts are effectively ‘disappeared’ – there is NO public record of exactly which human beings the Courts have turned into pieces of property that belong to the court-appointed guardian/ conservator.)
York said Friday that was mostly a clerical issue. She said members of the public said some court clerks were unaware that certain information in guardianship cases was public under states law.
But other changes to address the secrecy shrouding the process aren’t clear.
“Talking about the problems in the system is easier, but suggestions are more difficult,” York told the crowd, a group of about 30 people, most of whom had experiences with guardianship in their family.
The commission is studying whether reforms are needed in the laws, rules or court practices that up to now have mostly been playing out in closed-door District Court guardianship/conservatorship hearings, which by law are sequestered to protect the privacy of the incapacitated person. An interim report of possible recommendations is due to the Supreme Court by Oct. 1.
Leroy and Marjory Martinez told the panel that when her mother was put under court-ordered guardianship about seven years ago, she was shuffled between numerous nursing homes without informing family members.
“When she went to the emergency room, we weren’t told she was there for six hours,” the Martinezes told the panel.
And when they tried to question how the woman’s finances were being handled, “we were told, ‘don’t worry about it. She has enough money,’ ” Leroy Martinez said.
“But why did she need three wheelchairs, and an extra big bed one day which they had to get rid of the next, for a smaller bed? Why did she need the suite that cost so much more?”