New Mexico’s guardianship and conservatorship cases are clouded in secrecy. Once decisions are made by the court, family members are effectively locked out of receiving information. And in many instances, this has huge economic effects on the estate.
In November, 2016, the Albuquerque Journal did a five-part investigative series, “Who Guards the Guardians.” (https://www.abqjournal.com/896535/guardians.html and http://kanw.com/who-guards-guardians-podcast). The series revealed a major flaw in the current system, where the secrecy and seeming lack of accountability depleted a $5 million estate down to $750,000 by the time she passed. The secrecy is designed to “protect” the ward (the person who is incapacitated), because there are times when it is the family members who are trying to take advantage of the vulnerabilities. But there needs to be better checks and balances in place.
At Morris Hall, we have always felt that by utilizing a revocable living trust as the cornerstone of your estate plan, you and your family will avoid the issues associated with a guardianship, conservatorship, and probate generally. More importantly, we feel that having the trust put in place is only step one. We assist our clients in fully funding the trust – ensuring there are no assets left outside of the trust. We also strongly encourage regular estate plan reviews. This not only helps ensure the plan does what you think it does, and what you need it to, but it also creates a documented history of your intent.
There have been reforms to the system attempted in the past, but they seem to stall (see https://www.abqjournal.com/967595/guardianship-reforms-doa-in-nm.html). The goal, seemingly, is to make one set of comprehensive changes, rather than to add smaller fixes, then revisit over time.
Recently, the Albuquerque Journal published a follow-up (https://www.abqjournal.com/1088373/estate-planning-questioned-in-guardianship-hearing.html) piece indicating our State Legislature is trying to pass legislation that puts into law what we have always felt. The proposed legislation will make it so a court cannot ignore a valid trust. If passed, this law will provide additional safeguards for all of you who took the proactive measures and planned your estates.
Having a revocable living trust is important to make a difficult time easier. And in New Mexico today, it is still your first line of defense from getting you and your estate dragged into the overworked, overburdened court system. Come see us today to have your estate plan, including a revocable living trust, reviewed or put in place.
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- Why Would I Want My Trust to Be a Secret? - April 28, 2020