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Editorial: He had to fight NM system to save his stepmother

Fourteen months, numerous trips from California to Las Cruces, more than $50,000 in travel expenses and legal fees – and a man’s unwavering love for his stepmother, who had been in his life since he was 14 years old.

That’s what it took for Larry Davis and his wife, Marcia, to pry Larry’s stepmother, Kise Davis, from a commercial guardianship/conservatorship. Unbeknownst to her family, a handyman the 85-year-old woman befriended in Las Cruces had an emergency petition filed to have her placed under court protection.

The petition filed by the handyman’s lawyer failed to mention that Kise had a stepson – describing him only as her former power of attorney. Larry Davis had no notice of the petition that state District Judge James T. Martin of Las Cruces granted without a hearing. Davis’ first inkling was a telephone call in December 2016 from a neighbor of Kise’s in La Mesa telling him “I think you should know, they came and picked up Kise and said they’re taking her to an institution.”

Davis, who had visited his stepmother that June and been assured by state Adult Protective Services she was OK to continue living in the home she had shared with Larry’s father before his death, reacted quickly.

He talked to the handyman, Larry Franco, who said he had been worried about Kise and would withdraw his petition.

Too late. The commercial guardianship train had started rolling down the track. As provided by law, Kise now had a court-appointed guardian ad litem and a court-appointed guardian/conservator – both being paid from her assets.

She had been placed in a facility with people whose dementia was much worse than hers and the guardian ad litem opposed transferring her to California or putting her closest relative in charge of her care.

The judge initially agreed that Kise would be better served with a commercial guardian – even though he acknowledged Kise and Davis had a relationship.

Davis fought on. He had four different lawyers and made more than a half dozen trips to Las Cruces – including one when he arrived and was told the judge had been called away and the hearing re-scheduled.

He and his wife continued to see Kise – under restrictions from the guardian about what they could talk about and when they could see her.

Reforms passed by the 2018 Legislature, and others being drafted by a Supreme Court rules committee, will address some of the system’s ills. But they won’t necessarily stop what happened to Kise and Larry Davis.

But judges have the power to make – and the rules committee should consider a requirement that – attorneys who file petitions for guardianships or conservatorship submit an affidavit they have done due diligence and there are no family members who should be notified. Without that, the transparency reforms enacted this year mean nothing in a case like this.

And the Legislature, which backed off this year adopting the new Uniform Probate Code developed nationally, should revisit it – especially a provision that says judges should use the “least restrictive” means possible to protect the incapacitated person. In this case, that could have been a temporary living arrangement for Kise while the case was sorted out – rather than a full-blown corporate guardianship apparatus that has its own vested financial interest.

At the end of the day, it would appear the case of Kise and Larry Davis has a happy ending. “You saved my life,” Kise told her stepson, honoring him with a faux-Olympic medal after hearing the news on Feb. 26 that Larry would be her guardian/conservator.

But few people would have the assets and determination to fight the system the way Larry did – even if they had the same love for the family member. Once the family is shut out, the task is simply too daunting for too many.

There have been too many unhappy endings in cases like this. It’s up to our Legislature and the judiciary to continue working on reforms that prevent the nightmare scenario faced by Kise and Larry Davis.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.

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