RELATING TO APPOINTMENT OF CONSERVATORS OR GUARDIANS; AUTHORIZING PUBLIC ACCESS TO LIMITED INFORMATION REGARDING THE APPOINTMENT OF A CONSERVATOR OR GUARDIAN; AMENDING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 32A-6-15 NMSA 1978 (being Laws 1995, Chapter 207, Section 17) is amended to read:
"32A-6-15. DISCLOSURE OF INFORMATION.--
A. Except as otherwise provided in the Children's Mental Health and Developmental Disabilities Act, no person shall, without the authorization of the child, disclose or transmit any confidential information from which a person well acquainted with the child might recognize the child as the described person or any code, number or other means that could be used to match the child with confidential information regarding him.
B. When evidence exists that a child fourteen years of age or older, whose consent to disclosure of confidential information is sought, is incapable of giving or withholding valid consent and does not have a treatment guardian appointed by a court, the person seeking the authorization shall petition the court for the appointment of a treatment guardian to make a decision for the child. When the child is less than fourteen years of age, the child's parent, guardian or legal custodian is authorized to consent to disclosure on behalf of the child.
C. Authorization from the child shall not be required for the disclosure or transmission of confidential information in the following circumstances:
(1) when the request is from a mental health or developmental disability professional or from an employee or trainee working with mentally disordered or developmentally disabled persons, to the extent their practice, employment or training on behalf of the child requires that they have access to the information;
(2) when the disclosure is necessary to protect against a clear and substantial risk of imminent serious physical injury or death inflicted by the child on himself or another;
(3) when the disclosure of the information to the parent, guardian or legal custodian is essential for the treatment of the child;
(4) when the disclosure of the information is to the primary caregiver of the child and the disclosure is only of information necessary for the continuity of the child's treatment in the judgment of the treating clinician who discloses the information;
(5) when the disclosure is to an insurer contractually obligated to pay part or all of the expenses relating to the treatment of the child at the residential facility. The information disclosed shall be limited to data identifying the child, facility and treating or supervising physician and the dates and duration of the residential treatment. It shall not be a defense to an insurer's obligation to pay that the information relating to the residential treatment of the child, apart from information disclosed pursuant to this section, has not been disclosed to the insurer; or
(6) when the disclosure is to a protection and advocacy representative pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act and the federal Protection and Advocacy for Mentally Ill Individuals Amendments Act of 1991.
D. No authorization given for the transmission or disclosure of confidential information shall be effective unless it:
(1) is in writing and signed; and
(2) contains a statement of the child's right to examine and copy the information to be disclosed, the name or title of the proposed recipient of the information and a description of the use that may be made of the information.
E. The child has a right of access to confidential information about himself and has the right to make copies of any information about himself and submit clarifying or correcting statements and other documentation of reasonable length for inclusion with the confidential information. The statements and other documentation shall be kept with the relevant confidential information, shall accompany it in the event of disclosure and shall be governed by the provisions of this section to the extent the statements or other documentation contain confidential information. Nothing in this subsection shall prohibit the denial of access to the records when a physician or other mental health or developmental disabilities professional believes and notes in the child's medical records that the disclosure would not be in the best interests of the child. In all cases, the child has the right to petition the court for an order granting access.
F. Information concerning a child disclosed under this section shall not be released to any other person, agency or governmental entity or placed in files or computerized data banks accessible to any persons not otherwise authorized to obtain information under this section.
G. Nothing in the Children's Mental Health and Developmental Disabilities Act shall limit the confidentiality rights afforded by federal statute or regulation.
Section 2. Section 43-1-19 NMSA 1978 (being Laws 1977, Chapter 279, Section 18, as amended) is amended to read:
"43-1-19. DISCLOSURE OF INFORMATION.--
A. Except as otherwise provided in the code, no person shall, without the authorization of the client, disclose or transmit any confidential information from which a person well acquainted with the client might recognize the client as the described person, or any code, number or other means that can be used to match the client with confidential information regarding him.
B. Authorization from the client shall not be required for the disclosure or transmission of confidential information in the following circumstances:
(1) when the request is from a mental health or developmental disability professional or from an employee or trainee working with mentally disordered or developmentally disabled persons, to the extent their practice, employment or training on behalf of the client requires that they have access to such information;
(2) when such disclosure is necessary to protect against a clear and substantial risk of imminent serious physical injury or death inflicted by the client on himself or another;
(3) when the disclosure of such information is to the primary caregiver of the client and the disclosure is only of information necessary for the continuity of the client's treatment in the judgment of the treating physician or certified psychologist who discloses the information; or
(4) when such disclosure is to an insurer contractually obligated to pay part or all of the expenses relating to the treatment of the client at the residential facility. The information disclosed shall be limited to data identifying the client, facility and treating or supervising physician and the dates and duration of the residential treatment. It shall not be a defense to an insurer's obligation to pay that the information relating to the residential treatment of the client, apart from information disclosed pursuant to this section, has not been disclosed to the insurer.
C. No authorization given for the transmission or disclosure of confidential information shall be effective unless it:
(1) is in writing and signed; and
(2) contains a statement of the client's right to examine and copy the information to be disclosed, the name or title of the proposed recipient of the information and a description of the use that may be made of the information.
D. The client has a right of access to confidential information about himself and has the right to make copies of any information and to submit clarifying or correcting statements and other documentation of reasonable length for inclusion with the confidential information. The statements and other documentation shall be kept with the relevant confidential information, shall accompany it in the event of disclosure and shall be governed by the provisions of this section to the extent they contain confidential information. Nothing in this subsection shall prohibit the denial of access to such records when a physician or other mental health or developmental disabilities professional believes and notes in the client's medical records that such disclosure would not be in the best interests of the client. In any such case, the client has the right to petition the court for an order granting such access.
E. Where there exists evidence that the client whose consent to disclosure of confidential information is sought is incapable of giving or withholding valid consent and the client does not have a guardian or treatment guardian appointed by a court, the person seeking such authorization shall petition the court for the appointment of a treatment guardian to make a substitute decision for the client, except that if the client is less than fourteen years of age, the client's parent or guardian is authorized to consent to disclosure on behalf of the client.
F. Information concerning a client disclosed under this section shall not be released to any other person, agency or governmental entity or placed in files or computerized data banks accessible to any persons not otherwise authorized to obtain information under this section.
G. Nothing in the code shall limit the confidentiality rights afforded by federal statute or regulation.
Section 3. Section 45-5-303 NMSA 1978 (being Laws 1989, Chapter 252, Section 5, as amended) is amended to read:
"45-5-303. PROCEDURE FOR COURT APPOINTMENT OF A GUARDIAN OF AN INCAPACITATED PERSON.--
A. Any interested person may file a petition for the appointment of a person to serve as guardian for an alleged incapacitated person under the Uniform Probate Code. The petition shall state the following:
(1) the name, age and address of the alleged incapacitated person for whom the guardian is sought to be appointed;
(2) the nature of the alleged incapacity as it relates to the functional limitations and physical and mental condition of the alleged incapacitated person and the reasons why guardianship is being requested;
(3) if a limited guardianship is sought, the particular limitations requested;
(4) whether a guardian has been appointed or is acting in any state for the alleged incapacitated person;
(5) the name and address of the proposed guardian;
(6) the names and addresses, as far as known or as can reasonably be ascertained, of the persons most closely related by blood or marriage to the alleged incapacitated person;
(7) the name and address of the person or institution having the care and custody of the alleged incapacitated person;
(8) the names and addresses of any other incapacitated persons for whom the proposed guardian is acting if the proposed guardian is an individual;
(9) the reasons the appointment of a guardian is sought and the interest of the petitioner in the appointment;
(10) the steps taken to find less restrictive alternatives to the proposed guardianship; and
(11) the qualifications of the proposed guardian.
B. Notice of a petition under this section for the appointment of a guardian and the hearing on the petition shall be given as provided in Section 45-5-309 NMSA 1978.
C. After the filing of a petition, the court shall set a date for hearing on the issues raised by the petition. Unless an alleged incapacitated person already has an attorney of his own choice, the court shall appoint an attorney to represent him. The court-appointed attorney in the proceeding shall have the duties of a guardian ad litem, as set forth in Section 45-5-303.1 NMSA 1978.
D. The person alleged to be incapacitated shall be examined by a qualified health care professional appointed by the court who shall submit a report in writing to the court. The report shall:
(1) describe the nature and degree of the alleged incapacitated person's incapacity, if any, and the level of the respondent's intellectual, developmental and social functioning; and
(2) contain observations, with supporting data, regarding the alleged incapacitated person's ability to make health care decisions and manage the activities of daily living.
E. The court shall also appoint a visitor who shall interview the person seeking appointment as guardian and the person alleged to be incapacitated. The visitor shall also visit the present place of abode of the person alleged to be incapacitated and the place where it is proposed he will be detained or reside if the requested appointment is made. The visitor shall evaluate the needs of the person alleged to be incapacitated and shall submit a written report to the court. The report shall include a recommendation regarding the appropriateness of the appointment of the proposed guardian. The report to the court shall also include recommendations regarding:
(1) those aspects of his personal care that the alleged incapacitated person can manage without supervision or assistance;
(2) those aspects of his personal care that the alleged incapacitated person could manage with the supervision or assistance of support services and benefits; and
(3) those aspects of his personal care that the alleged incapacitated person is unable to manage without the supervision of a guardian.
Unless otherwise ordered by the court, the appointment of the visitor terminates and the visitor is discharged from his duties upon entry of the order appointing the guardian and acceptance of the appointment by the guardian.
F. A person alleged to be incapacitated shall be present at the hearing on the issues raised by the petition and any response to the petition unless the court determines by evidence that it is not in the alleged incapacitated person's best interest to be present because of a threat to the health or safety of the alleged incapacitated person or others as determined by the court.
G. The court upon request or its own motion may conduct hearings at the location of the alleged incapacitated person who is unable to be present in court.
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.
I. A record of the proceedings shall be made if requested by the alleged incapacitated person or his 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.
J. Notwithstanding the provisions of Subsection I of this section, any disclosure of information shall not include any diagnostic information, treatment information or other medical or psychological information.
K. The issue of whether a guardian shall be appointed for the alleged incapacitated person shall be determined by the court at a closed hearing unless the alleged incapacitated person requests otherwise.
L. Upon request of the petitioner or alleged incapacitated person, the court shall schedule a jury trial."
Section 4. Section 45-5-407 NMSA 1978 (being Laws 1975, Chapter 257, Section 5-407, as amended) is amended to read:
"45-5-407. PROCEDURE FOR COURT APPOINTMENT OF A CONSERVATOR.--
A. Upon receipt of a petition for appointment of a conservator or other protective order because of minority, the court shall set a date for hearing on the matters alleged in the petition. If at any time in the proceeding the court finds the minor is or may be inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the choice of the minor if fourteen years of age or older. An attorney appointed by the court to represent a minor shall represent and protect the interests of the minor.
B. Upon receipt of a petition for appointment of a conservator for reasons other than minority, the court shall set a date for hearing. Unless the person to be protected is already represented by an attorney of his own choice, the court shall appoint an attorney to represent him in the proceeding. The court-appointed attorney shall have the duties of a guardian ad litem as set forth in Section 45-5-404.1 NMSA 1978.
C. If the petition is for the appointment of a conservator for an incapacitated person, the person to be protected shall be examined by a qualified health care professional appointed by the court who shall submit a report in writing to the court. The report shall:
(1) describe the nature and degree of the person's incapacity, if any, and the level of the intellectual, developmental and social functioning of the person to be protected; and
(2) contain observations, with supporting data, regarding the ability of the person to be protected to manage his estate or financial affairs.
D. The court shall also appoint a visitor who shall interview the person seeking appointment as conservator and the person to be protected. The visitor shall also visit the present place of residence of the person to be protected. The visitor shall evaluate the needs of the person to be protected and shall submit a written report to the court. The report shall include a recommendation regarding the appropriateness of the appointment of the proposed conservator. The report shall also include recommendations regarding:
(1) those aspects of his financial affairs that the person to be protected can manage without supervision or assistance;
(2) those aspects of his financial affairs that the person to be protected could manage with the supervision or assistance of support services and benefits; and
(3) those aspects of his financial affairs that the person to be protected is unable to manage even with the supervision or assistance of support services and benefits.
Unless otherwise ordered by the court, the appointment of the visitor terminates and the visitor is discharged from his duties upon entry of the order appointing the conservator and acceptance of the appointment by the conservator.
E. The person to be protected shall be present at the hearing on the issues raised by the petition and any response to the petition, unless the court determines it is not in the best interest of the person for whom a conservator is sought to be present because of a threat to the health or safety of the person for whom a conservator is sought or others as determined by the court. The court upon request or its own motion may conduct hearings at the location of the person to be protected if he is unable to be present in court.
F. The person to be protected shall not be permitted by the court to consent to the appointment of a conservator.
G. The court, at the hearing on the petition for appointment of conservator, shall:
(1) inquire into the nature and extent of the functional limitations of the person to be protected; and
(2) ascertain his capacity to manage his financial affairs.
H. If it is determined that the person to be
protected possesses the capacity to manage his estate or financial affairs, or both, the court shall dismiss the petition.
I. Alternatively, the court may appoint a full conservator, as requested in the petition, or a limited conservator and confer specific powers of conservatorship after finding in the record based on clear and convincing evidence that:
(1) the person to be protected is totally incapacitated or is incapacitated only in specific areas as alleged in the petition;
(2) the conservatorship is necessary as a means of effectively managing the estate or financial affairs, or both, of the person to be protected;
(3) there are not available alternative resources that enable the effective management of the estate and financial affairs of the person to be protected;
(4) the conservatorship is appropriate as the least restrictive form of intervention consistent with the preservation of the property of the person to be protected; and
(5) the proposed conservator is both qualified and suitable and is willing to serve.
J. After hearing, upon finding that a basis for the appointment of a conservator has been established, the court shall make an appointment of a conservator. The court shall appoint a limited conservator if it determines that the incapacitated person is able to manage some but not all aspects of his estate and financial affairs. The court shall specify those powers that the limited conservator shall have and may further restrict each power so as to permit the incapacitated person to care for his estate and financial affairs commensurate with his ability to do so.
K. A person for whom a conservator has been appointed retains all legal and civil rights except those that have been specifically granted to the conservator by the court. The conservator shall exercise his supervisory powers over the estate and financial affairs of the incapacitated person in a manner that is the least restrictive form of intervention consistent with the order of the court.
L. 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 the Uniform Probate Code.
M. A record of the proceedings shall be made if requested by the person to be protected, his 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 conservatorship and whether limited or unlimited;
(4) for a limited conservatorship, the nature of the limitation; and
(5) the name and other information necessary to identify the alleged incapacitated person.
N. Notwithstanding the provisions of Subsection M of this section, any disclosure of information shall not include any diagnostic information, treatment information or other medical or psychological information.
O. The issue of whether a conservator shall be appointed shall be determined by the court at a closed hearing unless the person to be protected requests otherwise.
P. Upon request of the petitioner or person to be protected, the court shall schedule a jury trial.
Q. Upon entry of an order appointing a conservator, a copy of the order shall be furnished to the person for whom the conservator was appointed and that person's counsel. The order shall contain the name and address of the conservator as well as notice to the person for whom the conservator was appointed of that person's right to appeal the appointment and of that person's right to seek alteration or termination of the conservatorship at any time."
HB 311
Page 19