Copyright © 2018 Albuquerque Journal
On Dec. 16, 2016, Larry Davis got the shock of his life. A neighbor of his stepmother Kise Davis was on the phone, calling from La Mesa, N.M. “I think you should know,” the neighbor told him, “they came and picked up Kise and said they’re taking her to an institution.”
Based on an emergency petition filed by a handyman she had befriended and given her power of attorney, 85-year-old Kise Davis had been deemed incapacitated in a secret court action. She was placed in the care of a Las Cruces-based corporate guardian/conservator for her own good.
There was no court hearing or prior notice to her family, including her closest relative, her stepson Davis, who lives in Sonoma County, Calif.
It took Davis and his wife 14 frustrating months and more than $50,000 in legal fees and other costs to undo what had been done.
The handyman, who said he was only trying to protect Kise, offered to withdraw his petition just a month after it was filed.
But the case had taken on a life of its own as court appointees, being paid out of Kise’s assets, fought to keep her in Las Cruces.
“I think this happened because of the vested interest of the company assigned to manage (Kise Davis’) care,” said Las Cruces attorney Raul Carrillo, who represented Davis and his wife, Marcia. “It’s difficult to think there’s any other explanation. This is a situation where a woman is kept here despite the existence of family and a perfectly great place to go (in California).”
Sandy Meyer, owner of the guardianship firm, Advocate Services of Las Cruces, told the Journal that the guardianship fees were “minimal” and that she was “insulted” by the suggestion that profits were a motivating factor.
After more than a year of legal wrangling, Davis and his attorneys succeeded in convincing a state district judge at a closed hearing in late February to grant Kise’s transfer to California. It was the first time Davis testified in the case.
Davis said he was surprised that chief District Judge James T. Martin of Las Cruces also made him Kise’s guardian/conservator, considering that, last year, the judge put the corporate guardian in charge.
Kise was free to go home with Davis and his wife, the judge ruled.
Elated, but still wary, Davis and his wife were fearful of a new legal maneuver to keep Kise in Las Cruces. They hurried to get her out of New Mexico, packing up her belongings and flying back to California a week later.
She now lives with Davis and his wife, Marcia, pending a move to a nearby assisted living facility in Sonoma.
“You saved my life,” a happy Kise Davis told her stepson after learning the judge’s decision. “I owe you my life.”
Captive, of sorts
Kise, who is of Japanese descent, was described in court as an active and independent woman who has bouts of short-term memory loss. Her stepson said she had been a captive, of sorts, in the Las Cruces assisted-living facility.
She was housed in a memory care unit for people afflicted with more serious dementia, with residents who didn’t talk much, who watched television programs for 10-year-olds, one of Davis’ attorneys told the judge at hearing in April 2017.
The court-appointed corporate guardian dictated whom Kise could see and when; where she could go and what friends and family could tell her, Davis said. She wasn’t allowed to leave the premises, even to have lunch with a friend who had worked with her in the floral department at Hobby Lobby.
“I think she’s stifled to the point where she is not herself anymore,” testified Rita Diaz-Yarter, Kise’s friend from Las Cruces at the hearing in February. “I don’t believe that she should be here, left to die alone in a place where she has no family.”
Blocking their attempts to get Kise to California was a Las Cruces attorney who had been appointed by the judge as a guardian ad litem, or GAL, to represent Kise and advise the court.
In most cases in New Mexico, family members are appointed as guardians or conservators.
But Kise’s guardian ad litem, CaraLyn Banks, argued that Kise should stay in Las Cruces under a corporate guardianship.
Banks told the Journal last week that she was acting in Kise’s best interest.
“As a guardian ad litem, you have a certain responsibility to make sure your clients are safe, and I feel like I did just that,” Banks said.
Court docket sheets show that Banks has represented the owner of Kise’s guardian/conservator firm, Advocate Services of Las Cruces, on other legal matters.
Banks also had extensive experience with the company in guardian/conservator cases.
As a petitioner’s attorney, Banks has filed more than 65 guardianship cases since 2012 in which Advocate Services was appointed. Under state law, petitioners propose the guardian to be appointed.
Banks told the Journal she had no conflict of interest in taking on the GAL role in Kise’s case.
She said she never represented Meyer personally and only worked for her on conservator cases involving financial matters.
Banks said there are only a few guardianship firms in Las Cruces, explaining why she recommended Advocate Services so often.
Davis, meanwhile, said the campaign to keep Kise in New Mexico involved personal attacks on him.
“It’s hard enough for families to cope with the emotional reality of dementia (of a loved one) without having the added stress and abuse of being bullied, threatened and smeared by court appointees.”
Banks said she never bullied Davis or his wife.
“I bent over backwards to interview them, to talk to them, and they just didn’t like what I had to say,” she told the Journal.
Meyer, of Advocate Services, told the Journal, “Actually, it was Mr. Davis who was behaving badly. We refused to be subjected to his accusations and tirades. After he was represented by his attorneys, we never had further conversations with him.”
At times, during the 14-month ordeal, Davis said he and his wife felt like they “had nowhere to turn.”
He said he checked with an attorney in California for advice but was told that (situation in New Mexico) “just can’t happen. That this would never happen in California.”
The deeper tragedy, Davis said, is that “they took away from Kise one of the last, best years of her life.”
After Kise’s neighbor told him his stepmother had been taken away, Davis initially thought there had been a mistake.
A retired educator with a doctorate in cultural psychology, Davis said he and his wife had, since 2014, been trying to figure out how to get help for his stepmother, if she needed it, in the home she shared with Davis’ father until his death in 1993. The home is in La Mesa, a rural area south of Mesilla, N.M.
One physician concluded that, eventually, given her memory issues, Kise would need to be cared for in an institution. But that could be two weeks away – or 10 years away, Davis said.
Davis became Kise’s power of attorney and said he asked the state Adult Protective Services division twice in 2016 to assess whether his stepmother could live alone. He said he was told that she was OK.
Kise, he said, wanted to remain at home.
Had he removed her against her will, Davis said, “I knew she would never speak to us again.”
“She’s a stubborn, Samurai woman,” Davis said of the petite woman, who married his divorced father when Davis was 14 years old.
“My life became a lot better when she married my father. He was a career military officer who had served in World War II and Korea. I’d gone to Berkeley, and there were a lot of issues. Kise was always the peacemaker, who convinced me to see his side. Frankly, I wouldn’t have had a father (without her).”
Davis, 75, said he and his wife, Marcia, were in contact with Kise throughout 2016 – until she was placed under the guardianship, although it became difficult to reach her by phone.
The couple had visited Kise that June and planned to travel to Las Cruces again after the Christmas holiday.
Davis said he was never notified that Kise had transferred her power of attorney from him to Larry Franco, a handyman/gardener who said he had known Kise for 25 years.
Davis said he had never met Franco, but his stepmother told him Franco was helping her.
In the fall of 2016, Davis said he learned from the state Adult Protective Services that Franco had called the agency for an assessment of Kise, and protective services concluded she could live alone.
The Adult Protective Services report noted that Franco was Gov. Susana Martinez’s brother-in-law, Davis said.
Franco told the Journal he spent 40 to 50 hours a week helping Kise with projects and errands without pay.
“This has been a nightmare,” Franco said last week. “I was traumatized.”
Franco acknowledges he was slow to realize Kise’s signs of dementia, because, some days, “she was sharp as a tack.”
Franco said he never asked to become her power of attorney. He said that was “Ms. Davis’ idea.” That was also true of her decision to change her will to give him 30 percent of her estate and be her executor, Franco said.
Kise owned her own home and receives spousal military retirement benefits.
In court testimony, Franco said the day came when he had to take away Kise’s car keys for her own safety. When she asked, he denied doing so, Franco testified.
In retrospect, Franco told the Journal he probably should have contacted Larry Davis before contacting his lawyer, who filed the emergency guardianship petition that listed him as the petitioner.
“But I totally believed her (Kise) when she said he (her stepson) wasn’t helping her,” Franco told the Journal. “That’s all I needed to hear.”
Kise’s longtime neighbor, Donnie Mendez, told the Journal he noticed that someone had put chains with locks on the wrought-iron gates around Kise’s house. Franco said Kise asked him to do so, because she believed people were stealing from her.
It was Mendez who noticed strangers at Kise’s house, inquired what they were doing, and picked up the phone to alert Larry Davis that Kise was taken away.
What happened to Kise Davis is legal under New Mexico law. Several legislative guardianship law reforms take effect July 1, including expanded notification to families of court hearings.
But there will still be a narrow exception that permits one party to seek a court order so guardians can take custody of an alleged incapacitated person – without the judge hearing from others, including, in this case, family members.
“It’s a big loophole in the law,” said Davis. Had he been notified beforehand, Davis said he believes he could have kept the guardianship petition from being filed and found a better remedy to care for his stepmother.
Such emergency temporary guardianship/conservatorship orders are permitted under the law when the usual notification requirements would cause “immediate and irreparable harm to the alleged incapacitated person’s physical health.” The law allows any “interested person” to initiate the proceedings.
Franco’s petition alleged that Kise’s physician advised that she was in need of immediate placement, that she owned a loaded revolver that was missing and that she couldn’t understand her basic finances, having overpaid the IRS.
A letter was attached – not from Kise’s doctor, but from someone on his staff. Later, there was testimony of rotting food in her refrigerator.
Franco didn’t want the job of guardian, so his attorney nominated Advocate Services of Las Cruces.
Its guardians aren’t nationally certified. But Meyer, owner of the company, said they still adhere “to all ethical and legal and moral guidelines.”
The emergency petition never mentioned that Kise had a stepson. Davis was described only as Kise’s “former” power of attorney “who took no protective action” for Kise and”despite medical concerns allowed her to remain, unsupervised, in her home.”
Davis said the court visitor, appointed to investigate the need for a guardianship, said she had been told that Davis was a “distant nephew.”
After Kise was moved out of her home, Franco said he got a phone call from Davis.
As Davis recalled, Franco said he was “in over his head” trying to help Kise.
The two men “compared notes,” realizing Kise had negative things to say about the both of them, Franco told the Journal.
By mid-January 2017, Franco and his attorney had offered to withdraw the petition for guardianship, as long as Kise received 24/7 care in California, Davis told the Journal.
But Banks, as Kise’s appointed guardian ad litem, wouldn’t agree.
She told the Journal last week that Kise had “revoked” her stepson’s power of attorney, “so there was nobody who was able to protect her at the time.”
Banks said she also had “concerns” about Davis. She filed a report with the judge, citing Davis’ “conduct” prior to the temporary guardianship petition being filed. Her report also mentioned “representations made by Mr. Davis’ former counsel regarding his questionable competency.”
Attorney Cristy Carbon-Gaul of Albuquerque, who initially represented Davis, told the Journal that Banks was “misstating what I said (regarding the competency issue).”
Davis and his wife strongly deny the dementia claims, which they say were part of the “smear” campaign to keep Kise in New Mexico.
“For 14 months, (the argument) was that I was negligent in taking care of her and I am not suitable as a guardian,” Davis said.
Change of heart
At the initial hearing in the case in March 2017, Judge Martin sided with Banks.
“Even though Larry Davis has a relationship with her, I think that a corporate guardian and conservator would be better to maintain a professional relationship with Ms. Davis,” Martin ruled.
Kise was “high functioning but does suffer memory lapses,” Martin stated. “She is sometimes overly trusting of individuals she doesn’t know.”
The judge ordered that the parties “attempt” to transfer Kise to an appropriate facility in California.
But, two weeks later, Davis and his wife had to travel back to Las Cruces from California for another hearing, because Banks refused to sign off on the proposed written order, questioning its language.
By then, Davis and his wife had retained another attorney, Peter Goodman of Las Cruces.
“I’m scared by the thought of how much she (Kise) is paying just to have this little hearing to argue about whether to put something in an order that the Judge said he was going to put in his order,”Goodman said during the April 2017 hearing. “It should have been resolved consensually. How much is Kise paying for all of the people who are here today?”
The judge gave the parties 120 days to “file their motion for transfer,” adding that an extension would be granted for “good cause.”
That deadline came and went without any action.
Banks told the Journal that the delay occurred because “we couldn’t get the property (Kise’s home) sold quick enough so we couldn’t get her transferred to a corporate guardian and conservator in California.”
Even after Kise’s home sold in November, Banks never filed for the transfer. Instead, she filed a new report with the court reiterating why Kise was better off in New Mexico.
“There was a concern about money, a concern right from the start,” Banks told the Journal.
Davis hired new attorneys to enforce the judge’s order allowing Kise to move to California.
Then they waited four months for Martin to hold a hearing.
The hearing on Feb. 26 focused in part on whether Kise could afford to move.
Attorney Carrillo, now representing Davis, told the judge that, despite claims by Banks and the corporate guardian, Kise wouldn’t be paying more to live in California.
Getting rid of the cost of a corporate guardian would provide Kise enough money to live at a nearby assisted living facility near Davis in Sonoma, Calif., Carrillo said.
Alaina Johnson of Advocate Services testified that the corporate guardian’s services, deducted from Kise’s assets, amounted to nearly $500 a month, or $75 an hour.
When Carrillo asked what work was performed to justify the cost, Johnson responded that she paid Kise’s medical, pharmacy, housing and guardianship company bills.
Franco took the stand to endorse Kise’s move to be closer to her family.
He also told the judge that Kise’s corporate guardian had asked him to provide a statement “supporting them, that everything was fine, Ms. Davis is doing well (in New Mexico).” He never did so, and testified that he hadn’t seen Kise in a year.
Judge Martin ruled that he had assumed Kise would have been moved to California within six months and was “disappointed” that hadn’t happened.
Earlier in the case, Banks proposed that she and Advocate Services research and arrange the transfer to California and the hiring of new corporate guardian/conservator in California.
But the judge found that Larry Davis was “qualified, willing and able to serve” as Kise’s guardian and conservator. Martin approved the transfer and dismissed Banks and the guardian from the case.
The judge also ordered Advocate Services to file a financial accounting of Kise’s assets and expenses, but Davis said that, so far, the records provided are “wholly inadequate.”
Davis said he did notice that Banks’ fees of about $20,000 included a $12,000 payment the day before the final hearing.
While living in California, Kise has been reading books on Japanese gardening and birds, her stepson said. She says she wants to tell her story.
“She’s thriving,” her stepson said. “It’s like coming out of prison after 14 months. We’re free at last.”