Guardianship Study Commission Members, News Media Professionals, Others:
May 29, 2017 marked the day New Mexico’s Administrative Office of the Courts decided to have the District Courts of New Mexico obey Rules and Statutes that had been on the books beginning in 1958, and have the courts make known to the public the:
- Names of the wards;
- Duration of the guardianships or conservatorships (or both); and
- The case dockets
for all guardianship and/or conservatorship cases. This means that for the first time the courts are obeying Rules (NMRA 1-079 (D) (7), (9); NMRA 12-314 (C) (9), (12)) and Statutes (NMSA 45-5-303 (I); NMSA 45-5-407 (M)) that specifically require the courts to make available to the public points 1 through 3 listed above.
It took persistence by advocates from the victim community in NM to embarrass the Court insiders to finally follow the law!! It also took alert watchdog media, blowing the whistle on the courts. Why this took so long is a very good question!
For the first time, families who have been victimized by the courts and the court-appointed attorneys acting under Guardianship and Conservatorship Rules and Statutes can openly see not only their own case docket, but can compare their experience to other guardianship and conservatorship cases across New Mexico.
2nd Judicial District spotlight
The bar graph (above) shows the number of guardianship cases created annually in the 2nd Judicial District (Bernalillo County/Albuquerque) since Jan 1, 1998. From an all-time high of 361 guardianship cases created in 2005, to a low of 192 in 2016, guardianship is The last filed guardianship case of 2016 occurred as early as Dec 9, 2016 – perhaps because of the intense examination that begin with the Albuquerque Journal’s publication of Diane Dimond’s 6 part expose on the abject horrors of guardianship as implemented by New Mexico’s District Courts…? All the other years had cases filed right up until Dec 31st, or whatever the last business day of the year was. We wonder who would have had authority to have put out the word to New Mexico’s attorneys to not file any guardianship cases in the last 3 weeks of 2016?
2nd Judicial District lack of compliance with guardianship statutes
1. NMSA 45-5-314. Annual report. In a spot-check review, the 2nd Judicial District Court’s failure to comply with various parts of the state statutes concerning guardianship is troubling. The Commission, in addressing guardianship reform moving forward, must acknowledge the court’s inability to consistently obey and implement guardianship laws including:
In what may be as many as 20% or more of guardianship cases there are no case docket entries showing that either the required 90 day initial report, or the annual report have ever been filed, some in cases going back to 2010 (7 years.)
This is an astonishing failure by New Mexico’s Guardianship system and its supposed oversight by the Administrative Office of the Courts.
2. NMSA 45-5-303 . Procedure for court appointment of a guardian of an incapacitated person.
H. The rules of evidence shall apply and no hearsay evidence that is not otherwise admissible in a court shall be admitted into evidence except as otherwise provided in this article. There is a legal presumption of capacity, and the burden of proof shall be on the petitioner to prove the allegations set forth in the petition. Such proof shall be established by clear and convincing evidence.
Given the number of motions and the nature of the resultant orders in the cases that were spot-checked, as well as reporting by the Albuquerque Journal in both private and public guardianships, the use of hearsay evidence is a common source of court evidence used in Petitions, especially for Emergency Temporary Guardianships. This is a denial of constitutionally-protected rights of Due Process of not just the allegedly incapacitated person (AIP) but the AIP’s family (spouse, adult children.)
3. NMSA 45-5-311. Who may be appointed guardian; priorities.
B. Persons who are not disqualified have priority for appointment as guardian in the following order:
(1) a guardian or other like fiduciary appointed by the appropriate court of any other jurisdiction;
(2) a person, as far as known or as can be reasonably ascertained, previously nominated or designated in a writing as defined in Paragraph (4) of Subsection A of Section 45-5-309 NMSA 1978 to serve as guardian or agent in a writing signed by the incapacitated person prior to the incapacitated person’s incapacity that has not been revoked by the incapacitated person or terminated by a court;
(3) the spouse of the incapacitated person;
(4) an adult child of the incapacitated person;
(5) a parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent;
(6) any relative of the incapacitated person with whom the incapacitated person has resided for more than six months prior to the filing of the petition;
(7) a person nominated by the person who is caring for the incapacitated person or paying benefits to the incapacitated person; and
(8) any other person.
So long as any judge can override anyone’s properly- drafted, legally-expressed wishes as to who they want to control them, as NMSA 45-5-311 (B)(1) allows, there is no point in any New Mexican ever spending money on any type of Will, (Durable) POA, Trust, Incorporation papers, or any other legal contract designed for end of life designations and property transfers.
There is no point in paying money to create Wills, Trusts, etc because all of a person’s properly-drafted, legally-expressed wishes are NULL and VOID if any District Court judge finds for any reason the Judge’s choice to control your entire life is better than the choice you personally made, paid an attorney perhaps thousands of dollars to draft (and in some cases record in the public record.) Every New Mexican should be well-aware that any Judge can render their end-of-life documents NULL and VOID using NMSA 45-5-311.
There are not only no consequences to the judge choosing their frequent-court-appointee to have complete control over your life & money, but there’s no one and no government department that takes responsibility for overseeing the Judge who has just NULLIFIED and VOIDED your Will, Trust, POA, etc.
This change to the New Mexico statutes that allow a Judge to NULLIFY and VOID your end-of-life legal contracts was passed in HB 161: Guardian of Protected Persons Responsibilities, authored in 2009 by then-state Representative Bill O’Neill, a criminal justice attorney representing Bernalillo County.
Bill O’Neill is now a state senator: he should sponsor a bill to return the right of New Mexicans to have their choice of who they wish to be their guardian, conservator, executor, or trustee honored by Judges, which will also uphold the AIP’s and the AIP’s family’s constitutionally-protected due process rights.
Such a return to honoring a person’s properly-drafted, legally-valid end-of-life contracts would follow a fundamental Equity Maxim: “Equity will not allow a statute to be used as a cloak for fraud.” Because right now, the way NMSA 45-5-311(B) reads, whether it was intended to, or not, this is an open-ended invitation for fraud upon the court, by the court, with no appeal, no due process, and no accountability for anyone, including the Judge and their appointees, and it allows the Court and its appointees to loot estates, trusts, companies, and personal wealth, with impunity.
There are many other facets of guardianship and conservatorship statutes that are not consistently and correctly being followed by Judges or their appointees, and we will work our way through the most egregious cases of judicial abuses as we continue to report to the Adult Guardianship Study Commission.
This week, there is a companion piece written to the Commissioners by Concerned Senior Citizens focusing on the intent of NM’s Uniform Probate Code and how it is currently being perverted by the courts and their appointees. Focusing only on policy and without mentioning case details, this piece shows areas where the Commission could help the courts’ compliance with existing rules and statutes.
WillPowerNM has been formed to support and inform each Member of the Commission in their work over the coming weeks and months by preparing and releasing regular email information in a format similar to the first six weekly messages and by establishing and maintaining a publicly accessible and widely promoted web site on the Commission’s important study effort.