SENATE MEMORIAL 94

51st legislature - STATE OF NEW MEXICO - first session, 2013

INTRODUCED BY

Gerald Ortiz y Pino

A MEMORIAL

REQUESTING THE DEVELOPMENTAL DISABILITIES PLANNING COUNCIL TO CONVENE A WORKING GROUP TO EVALUATE CHANGING THE UNIFORM PROBATE CODE TO PROVIDE FOR GREATER TRANSPARENCY AND ACCOUNTABILITY ON THE PART OF GUARDIANS AND CONSERVATORS IN THE MANAGEMENT OF A PROTECTED PERSON'S ESTATE AND TO REQUIRE GREATER NOTICE TO AND CONSULTATION WITH A PROTECTED PERSON'S FAMILY UPON THE DEATH OF THE PROTECTED PERSON UNDER THE SUPERVISION OF A GUARDIAN OR CONSERVATOR.

     WHEREAS, conservatorship and guardianship are becoming more common due to the aging of the baby boomer population; and

     WHEREAS, the appointment of a guardian or conservator can be a very complex and emotionally charged event for families and for the individual who is the subject of the proceeding; and

     WHEREAS, in New Mexico, there is limited regulation of what is known as "corporate guardianship", which involves the appointment by a court of a for-profit or nonprofit entity to serve, with compensation, as the legal guardian of a protected person in New Mexico; and

     WHEREAS, the family of a protected person for whom a guardian or conservator has been appointed may not be in regular contact with the protected person and often experiences difficulty in acquiring information regarding activities of the guardian or conservator that might not be in the best interest of the protected person or the protected person's estate; and

     WHEREAS, there is a need for transparency and accountability in the conduct of a guardian or conservator in the management of the affairs of a protected person, particularly when the protected person's family poses no threat to the well-being of the protected person; and

     WHEREAS, a guardian or conservator may fail to provide notice to, and consult with, the family upon the death of a protected person on matters such as the performance of an autopsy, burial and the windup of the protected person's estate; and

     WHEREAS, challenging a guardianship or conservatorship can be an extremely costly and intimidating process for a protected person or for the family of a protected person;

     NOW, THEREFORE, BE IT RESOLVED BY THE SENATE OF THE STATE OF NEW MEXICO that the developmental disabilities planning council be requested to convene, no later than August 1, 2013, a working group to develop recommended changes to the Uniform Probate Code that would provide:

          A. greater transparency in a guardian's or conservator's management of a protected person's affairs to provide families with accurate and timely information on which to evaluate the guardian's or conservator's performance;

          B. greater accountability on the part of a guardian or conservator for the management of a protected person's affairs; and

          C. requirements for greater notice to, and consultation with, the family of a protected person upon that person's death, particularly in matters involving autopsy, funeral arrangements and the extent and disposition of the protected person's estate; and

     BE IT FURTHER RESOLVED that the working group include representatives from the administrative office of the courts, the office of the attorney general, the office of guardianship of the developmental disabilities planning council, the aging and long-term services department, the national alliance on mental illness New Mexico, disability rights New Mexico, the arc of New Mexico, ayudando guardians, an attorney licensed to practice law in New Mexico with expertise in probate matters and advocates of families of protected persons; and

     BE IT FURTHER RESOLVED that the working group report its findings and recommendations to the legislative health and human services committee, the legislative finance committee and the appropriate interim legislative committee that studies courts and corrections by October 31, 2013; and

     BE IT FURTHER RESOLVED that copies of this memorial be transmitted to the administrative office of the courts, the executive director of the developmental disabilities planning council, the attorney general, the secretary of aging and long-term services and the president of the national alliance on mental illness New Mexico.

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