A guardian is defined as
a “person who is appointed by the court to make healthcare and some money
decisions for someone who cannot make decisions for themselves because of injury,
mental illness, dementia, physical or mental disability, or substance abuse.”  AARP estimates in a 2013 estimate that about
1.5 million adults are under guardianship, and that number has increased in the
last four years.  New Mexico law states
that guardianship “should encourage the individual’s independence and should be
limited to the powers necessary to help with the person’s mental and physical
limitations.” A conservator is defined as a person or entity appointed by a
court to make financial decisions for an incapacitated person.  Unlike a guardian who may be nominated under
a will, only a court may appoint a conservator. 
According to the current state law the person who will be a ward and
their relatives (children) have to be informed by letter by the court that
there will be a hearing to determine the mental and physical capability of a
person to take care of themselves financially and physically.  If it is determined the family is not
suitable to take care of the person then another person who is associated with
the court is appointed to be a guardian. 
The court also appoints a person called a court visitor or an entity
(business) to be conservator.  In a
five-part series in the Albuquerque Journal there were stories from family
members who were found to be not “suitable” to take care of their family member
because the lawyers told the court the family members were fighting or some
other excuse.   New Mexico law states a
letter must be sent to family members and the person involved fourteen days in
advance of the hearing.  This is only for
permanent guardianship.  If an emergency
hearing is asked for no such letter has to be sent.  In the case of one family, an adopted child
of an elderly mother went to court and had a guardian and conservator appointed
to the mother without the mother’s and other children’s knowledge.  According to the family they did not receive any
such letter for the hearing.  In the
article elder advocate groups and other sources said there are many things
wrong with the current system that make it easy for a person to go to court and
have someone declared not competent.  The
New Mexico Courts website says it is a complicated process, as reported in the
Journal this process doesn’t seem complicated. 
It is also a complicated process to reverse.  In the New Mexico Journal articles family
members had a lot of money and/or property and this can make a person more
likely to be targeted by a company that does business by providing guardian/conservatorship
services.  In Nevada these types of
services have become an industry and have attracted businesses because of the
number of seniors who have retired there. 
According to an article in Forbes Magazine, Albuquerque has become a
“hot spot where guardianship abuse is prevalent, because of the attractiveness
to retirees”.  Albuquerque is a place
seniors have retired and now has become a place where conservatorship/guardianship
businesses have begun to locate.  Financial,
mental, physical, and emotional abuse is becoming more prevalent with these
types of businesses because they isolate the person from all family and
friends.  In both articles, the excuse
that seeing the family or friends would “upset mom or dad” was very commonly
used by the company so the family didn’t know if the elderly person was being
abused or not.  Also the family would not
know even where the person was living or if they did the conservator would not
allow them to see the elderly person the company would threaten the family
member who wanted to visit them with trespassing.  The elderly person most likely ends up being
abused because they end up in a facility where medical care and their
surroundings are substandard.  With this
situation the person can be overly medicated and can be a target of all kinds
of abuse including sexual abuse.  In all
cases described in the Forbes article the company awarded conservatorship would
sell off the assets of the wards they were overseeing including cars, houses,
family heirlooms and other property.  In
both article sources if family members wanted any family heirlooms they would
have to buy them from the estate. 

Journal was not able to get a lot of information about the cases described in
the article because of confidentiality.  This
indicates another problem with the current system.  There is no transparency or way to check the
information of what the court decides or what care and how the money is being
spent so the businesses associated with the conservatorships do not have to
reveal any information except to report to the court.  Conservatorship and guardianship should only
be done if there is no other way to help the incapacitated person.  With these kinds of decisions the person’s
rights are literally taken away; the right to make financial decisions, medical
decisions, and in some cases even the right to vote or do other things.  This type of decision literally isolates the
person from everything.  According to
state law however the person overseeing the incapacitated person is not
supposed to do this, but since the courts have appointed people who are not
family members the incapacitated person is not able to see family or friends
because “it would upset mom”.  This kind
of isolation amounts to elder abuse.  The
family doesn’t know whether the person is being taken to places like a senior
center or to other outside activities for stimulation or if their medical needs
are being met; doctor and dental appointments. 
A lot of the family members also said they don’t know if the family
member is even able to see friends.  They
also don’t know how the family member’s money is being spent until the family
member dies and they can see how much money has been spent on the person’s
care.  In the article, thousands of
dollars were supposedly spent on care for the person but families are not able
to verify it because of confidentiality.  In one case, the family had a financial trust
and a daughter had power of attorney. 
The daughter who went to court to have a guardian and conservator
appointed to her mother accused another daughter who had financial power of
attorney of taking money and spending it for herself and had also made some
property transactions without the family’s knowledge. The other siblings
refuted this and said it was not true and that all the siblings had a say on
the property transactions including the accuser.   The
court did not order an audit and so the court decision was not overturned.  In 2013 Senator Jerry Ortiz y Pino,
D-Albuquerque, sponsored a measure to “look into complaints by family members
whose elderly loved ones had been declared “incapacitated” by the court, had
their civil rights terminated and places under court-controlled
guardianship.  A sixteen member task
force was appointed.  NO interested
family members or elder advocacy groups were appointed seats.  All members were from inside the industry;
state bureaucrats and people who worked inside for-profit elder care
industry.  The task force decided that
the Uniform Probate Code did not need any changes except one; clarification
about the after-death process.  They
decided that the industry did not need to provide family members additional
financial information to family members”. 
This is another problem with the system. 
Legislators are unwilling to change already existing laws because they
are either part of the problem or have ties to the industry. 

problems with the system are few judges to hear cases and no money for courts
to spend on resources, and laws to make those who have conservatorships be made
to be more transparent with financial records and what kind of care the person
is getting, make conservators be licensed (there is more involved with
hairdressers getting a license than getting certification as a conservator).  Medical records are not going to be available
because of doctor/patient confidentiality but they should be available to a
family member who has medical power of attorney.  There are also some things the state can do:
Create a disciplinary board where family complaints can be heard and taken
seriously and published publicly; Require specific training and state licenses
for guardians and conservators; additional court funding; and transparency with
money for care and how the conservator is using the money. 

medical personnel, and family lawyers should be aware of what
guardianship/conservatorship entails because of abuse.  Families can use legal means to protect
themselves from this type of situation.  One
lawyer in Albuquerque who is a lawyer who helps family members with
guardianship suggests that families meet together and sign an agreement to not
challenge the estate plans and if they do, they forfeit their inheritance.  The elderly person should also meet with
their children and answer any questions they might have regarding what the
person wants to do with their finances and what they should do in a medical
emergency.  Questions about power of
attorney and end of life decisions should also be addressed.  This way all family members know what the
elderly person wants and no one can say “but I didn’t know”.  There are many ways of communicating visually
so they don’t have to be in the room.  My
mother inherited financial investments and will have some money from property
transactions.  I don’t know how much and
it’s not my business to know until the appropriate time, it is her money to
live on and spend.  She and I have talked
about these articles and what she is going to do in order to help make it
easier for my sister and me when she is gone. 
 My dad and I have also talked about
if I want a share in the house.  There
are four of us and my dad and Nancy have set up a trust.   My dad and his sisters each have a role in
taking care of my grandmother. 
Fortunately they get along!


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