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F I S C A L I M P A C T R E P O R T

SPONSOR Altamirano

ORIGINAL DATE

LAST UPDATED

1-30-06

2-7-06 HB

SHORT TITLE Disabled Guardianship Assistance Program

SB 500/aSPAC

ANALYST Collard

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY06

FY07

$200.0

Recurring

General Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Health Policy Commission (HPC)

Developmental Disabilities Planning Council (DDPC)

Department of Health (DOH)

Human Services Department (HSD)

Children, Youth and Families Department (CYFD)

Aging and Long-Term Services Department (ALTSD)

SUMMARY

Synopsis of SPAC Amendment

The Senate Public Affairs Committee amendment to Senate Bill 500 moves the appropriation

and responsibility associated with the bill from CYFD to DDPC.

SIGNIFICANT ISSUES

HSD notes the amendment properly houses the guardianship alternatives program and its appro-

priation within the Developmental Disabilities Planning Council, but does not clarify whether the

program is designed for a specific disabled community or is available for all disabled persons

needing guardianship services.

DOH indicates, currently the New Mexico Court system makes guardianship appointments. The

courts do not have an accurate data tracking system and the total numbers of guardians/wards in

New Mexico cannot be given precise count. There is a statutory penalty for not filing the annual

report, but the courts do not check to see who has filed their report and who has not. DDPC ad-

ministers guardianship contracts using the general fund. This limited budget program, which

Senate Bill 500/aSPAC – Page

2

works through the current court system, is expensive, time consuming, and limited in scope.

Synopsis of Original Bill

Senate Bill 500 appropriates $200 thousand from the general fund to the Children, Youth and

Families Department (CYFD) for the purpose of funding the guardianship alternatives program.

This program will provide assistance in the establishment of alternatives to guardianship for the

care of disabled persons, including the establishment of boards of family members and friends

responsible for the care of disabled persons; and training assistance to communities regarding

alternatives to guardianship for care of disabled persons.

DDPC indicates the bill allows CYFD to provide assistance in creating alternatives to guardian-

ship, in particular, permitting a disabled person to set up voluntarily a “microboards” or a group

of individuals such as family members and friends who would take responsibility for certain de-

cisions in the subject of the guardianship.

FISCAL IMPLICATIONS

The appropriation of $200 thousand contained in this bill is a recurring expense to the general

fund. Any unexpended or unencumbered balance remaining at the end of FY07 shall not revert to

the general fund.

DDPC notes 5 percent of allocation will cover administrative costs of this program, which will

include the development and monitoring of the contract and all oversight of all financial activi-

ties. Additionally, DDPC indicates this could be a less costly alternative to guardianship for an

individual with less liability as an alternative to guardianship, depending upon how many people

are on a microboard and how much they are paid each year for their services.

SIGNIFICANT ISSUES

DDPC indicates any alternative to guardianship must provide the disabled person the needed

care and rehabilitative services and the disabled person must enjoy the greatest amount of per-

sonal freedom and legal rights.

TECHNICAL ISSUES

HPC notes the bill does not define “disabled”. It is not clear whether the “guardianship alterna-

tives program” would benefit all disabled persons or only those with certain types of disability

such as mental disability.

OTHER SUBSTANTIVE ISSUES

HPC research indicates, according to the Department of Health, a disability is any limitation of a

person’s physical or mental abilities which substantially limits one or more major life activities

such as self-care, language use, learning, mobility, independent living and economic self-

sufficiency.

A developmental disability is a severe mental or physical disability which appears before the age

of 22; is likely to continue indefinitely; causes substantial limitations in three or more major life

activities; and requires services on a long-term basis.

Senate Bill 500/aSPAC – Page

3

Additionally, in 2003, according to the Henry J. Kaiser Family Foundation, approximately 18.1

percent of adult New Mexicans had some type of disability - limited in any activities because of

physical, mental, or emotional problems. The number of disabled children in New Mexico is not

available at this time.

HPC notes the Office of Disability and Health (ODH) is one of the top 6 of 16 programs in the

country funded by the Centers for Disease Control and Prevention (CDC) to address the health

issues of people with disabilities. As part of that top tier, the ODH is available to mentor the

other 10 programs as they begin their work in disability and health. The ODH partners with the

University of New Mexico Center for Development and Disability (CDD) to accomplish these

goals. The ODH is guided in its activities by the Disability and Health Advisory Council.

The goals of ODH are to estimate and assess the prevalence of disability, to prevent secondary

conditions (medical, social, emotional, family or community problems that a person with a dis-

abling condition likely experiences) and to promote wellness for people with disabilities in New

Mexico.

ALTERNATIVES

DDPC suggests the funding should be moved from CYFD to DDPC’s Office of Guardianship.

POSSIBLE QUESTIONS

DDPC suggests this bill should be considered a pilot project based upon this bill’s broad and ex-

pansive language. Looking at this as a pilot project the following issues would need to be ad-

dressed:

(1)

Who appoints the members to the microboard. If the incapacitated person has the power

to appoint, then it would seem more like a power of attorney, which would allow the in-

capacitated person to override any decision the microboard might make.

(2)

Is there any due-process for the incapacitated person.

(3)

Is there a level of functioning that the incapacitated person must meet in order to qualify

to have a microboard instead of a guardianship.

(4)

Training on how to be a member of a microboard.

(5)

Who can fire the members of the microboard.

(6)

For what reasons can a member of the microboard be fired. (Not just because the inca-

pacitated person doesn’t like the surrogate decision.)

(7)

What do microboards do that guardians would not do or do at a greater cost to the inca-

pacitated individual.

(8)

Since the microboard would be independent of the courts would be responsible for the

oversight to make sure that the decisions are in the best interest of the incapacitated

ward.

(9)

What are the microboards duties under the law (like fiduciary duties.)

(10) What happens if there is a clash within the micro board – between the best interest of the

ward and another member who wants to carry out the ward’s wishes.

(11) Do microboards rule by majority or expertise.

KC/mt