'They have the ability to do this': Son's battle to free mom puts focus on emergency guardianship - Albuquerque Journal

‘They have the ability to do this’: Son’s battle to free mom puts focus on emergency guardianship

Copyright © 2021 Albuquerque Journal

Dorris Hamilton is an iconic figure in Las Cruces.

Now 93, she left the extreme poverty of her Arkansas home to live with a teacher at age 12 and used the power of education to overcome segregation. She became the first Black woman to graduate from the University of Arkansas, received a master’s degree at age 23, met Martin Luther King Jr. before he became famous, and secured a place in New Mexico history as the state’s first Black school principal at Lynn Junior High School in Las Cruces. In her work with the NAACP, she helped lobby the New Mexico Legislature.

Rio Hamilton, behind the wheel, and his mother, Dorris Hamilton, in Las Cruces, go on an outing now permitted because he is his mother’s legal guardian. (Photo courtesy of Rio Hamilton)

A lifelong saver, Hamilton had built a substantial nest egg by the time she retired in the late 1990s. She owned a home and maintained an active lifestyle.

But life as she knew it was upended two years ago when a Las Cruces judge signed a temporary emergency petition presented to him by a local attorney placing Hamilton under the care of a corporate guardian and conservator — an action her son, Rio Hamilton, says was done without their knowledge and against their wishes.

It was a fast-track legal process that resulted in Dorris Hamilton’s removal from her home, the liquidation of her possessions, and her life and finances being placed in the hands of strangers.

“This is what’s broken about guardianship,” Rio Hamilton said of his mother’s case. “They have the ability to do this.”

‘All of us at risk’

After a 22-month legal battle in which prominent Las Cruces residents appeared in court to show support for the family, Rio Hamilton was appointed as his mother’s guardian in May. He was also allowed to choose a new conservator to manage her financial affairs.

While the case isn’t formally concluded, he estimates that fees charged against his mother’s estate by lawyers and court-appointed guardians and conservators are well over $100,000. After removal from her home, she was placed in a memory care facility chosen by her guardian — not by her and her son. In late October 2019, the judge held a hearing and opted to make the corporate guardianship and conservatorship permanent.

“They’re not rescuing people who aren’t wealthy,” Rio Hamilton said of the corporate guardianship process.

The Hamiltons’ case was featured earlier this year in an extensive Searchlight New Mexico story and in a Washington Post story as recently as last week.

Beginning in late 2016, the Journal has published multiple investigative stories revealing serious issues with the state’s adult guardianship system. Lawmakers and the judiciary have since enacted changes to better protect some of the state’s most vulnerable adults.

Rio Hamilton, as a baby, in the arms of his mother, Dorris, who helped break racial barriers. (Photo courtesy of Rio Hamilton)

But despite New Mexico’s recent progress injecting transparency into such cases and enhancing rights of “protected people” and their families, cases like the Hamiltons’ are continuing proof the system designed to protect vulnerable individuals is not yet fixed, guardianship reform advocates say.

In fact, scrutiny of the temporary guardianship process in New Mexico is the latest aim of a new legislative-ordered study group scheduled to meet next week.

State Rep. Joanne Ferrary, D-Las Cruces, a study group member who sponsored new guardianship legislation this year, said she hopes the continuing reforms will include better protections for those who are the subject of temporary guardianships, such as the Hamiltons.

She and others were dismayed after attending one of the public court hearings in the Hamiltons’ case.

“It was, like, how could this just keep going on? She doesn’t have that many more years of her life left,” Ferrary said in a Journal interview. “Why should it happen to her or anyone who has worked so hard to save money all her life? It puts all of us at risk.”

Former state Senate President Pro-Tem Mary Kay Papen, D-Las Cruces, said she’s known Dorris Hamilton for many years.

“I just can’t believe this whole thing,” Papen said in an interview. “I find it quite scary as we all get older that they can walk in and do this even though you have children. … That they are able to take you away … I find that very frightening.”

Son blindsided

Rio Hamilton said he was blindsided by the emergency temporary petition and had no idea what a corporate guardian was that summer day in 2019. All he wanted was to obtain power of attorney so he could expedite moving his mother to a hotel while he cleaned out and repaired her home of 50 years.

But that one-hour meeting resulted in the Las Cruces lawyer filing — Rio Hamilton says without his approval or signature — a temporary emergency petition saying that Rio wanted the court to appoint a corporate guardian and conservator.

Rio Hamilton said the petition was granted by Chief District Judge Manuel Arrieta of Las Cruces before Hamilton even knew about it — effectively ending Dorris Hamilton’s way of life as she knew it and setting the stage for a long fight.

There was no prior notice to Rio Hamilton or a hearing to allow all sides to respond to the allegations in the temporary guardianship petition. And it’s all perfectly legal when there’s deemed to be an emergency.

The petition filed July 25, 2019, said that Hamilton’s son had priority under state law for appointment as guardian for his mother but that he waived that right, which he says is patently false. The petition alleged that it didn’t appear that his mother had an attorney and that she had exhibited hoarding behaviors, memory loss and vascular dementia and was in danger of harm. It also said she “may” have been the subject of financial exploitation.

Costly battle

Once embroiled in the legal fight to oppose the guardianship, Rio Hamilton said, he found himself on the defensive and essentially was required to prove he was fit to be his mother’s guardian. At the time the temporary petition was filed, he was living in New York. He moved back to Las Cruces in the fall of 2019.

“They said I was there to do my mother harm,” said Hamilton, who is a marketing specialist and consultant in the interior design and architecture industry. “That the only reason I came back to Las Cruces, New Mexico, from New York City was to take advantage of my poor mother.”

It’s a dynamic faced by many families who oppose corporate guardianships in court.

Retired educator Dorris Hamilton accepted a “Trailblazer” award from the Doña Ana school board in March 2020. She had already been placed in a “corporate guardianship,” which stripped her of her right to manage her personal affairs.(Photo courtesy of Rio Hamilton)

One California man, whose struggle was profiled by the Journal in 2018, spent more than a year and $50,000 in legal fees to reverse another judge’s decision to put his elderly stepmother under a corporate guardianship in Las Cruces. That case was triggered by an emergency petition filed on behalf of a local handyman who knew the woman.

To help finance his legal fight, Hamilton mounted an online funding campaign titled “SAVE MY MOTHER FROM GUARDIANSHIP TAKEOVER,” and hired his own attorney, who declined to comment last week.

“Imagine you are 93 years old and all of a sudden you have no access to any of your money that you’ve been saving since you were 19 years old,” Rio Hamilton said. “She’s driving around town trying to pay her bills. Three weeks later, she gets a knock on her door saying we have a court order to take you to a nursing home.”

Hamilton’s mother still lives in an assisted living memory care unit of a facility in Las Cruces, but he said she would like to move back home or live in another facility.

But Rio Hamilton says he and his mother are in a sort of legal limbo.

In an unusual and publicly unexplained move, Judge Arrieta decided not to discharge the attorney who originally filed the petition in 2019 seeking to place Dorris Hamilton under the corporate guardianship. The judge, in granting Hamilton guardianship, also asked the Las Cruces-based lawyer to remain on the case for six months. The order explaining why is sealed.

The attorney, CaraLyn Banks, said in a Journal interview that the case is sequestered so she can’t explain why she is still on the case. She maintains she is only looking out for Dorris Hamilton’s best interests.

But the legal ordeal has taken an emotional and financial toll.

“My mother is a first-class lady,” said Rio Hamilton, who now lives in Las Cruces. “She does not speak badly about them. She does not speak ill. She keeps her spirits up. I’ve taken a lesson, I’ve taken notes on how to behave. There’s been times I’ve been absolutely outraged.”

No prior notice

Dorris Hamilton and her husband, a mathematician recruited to work for the military at White Sands Missile Range, settled in Las Cruces before Rio was born. The couple eventually separated.

Dorris Hamilton spent 40 years in the Las Cruces Public Schools system, 20 of those years as a principal. In her later years, she was active in the community, wearing her trademark men’s suit jacket adorned with pins. She was a regular at the Benavidez Community Center in Las Cruces and attended aerobics classes, her son said.

But under a corporate guardianship, Dorris Hamilton lost the right to oversee her personal affairs, the right to vote or see her own doctor, her son said. He wasn’t allowed to take her to church on Sundays but had to meet her there, he said.

Rio Hamilton said the guardianship ordeal would never have happened if he hadn’t taken his mother to see Banks on July 20, 2019.

“My mother was extremely stubborn about the possessions that were in her home, like most people who have a hoarding disorder. There was no reasoning with her, which is why I needed to take action,” he said of his plan to get a power of attorney that would have given him access to her bank account.

He had planned to move back to New Mexico to live in the house he grew up in, and work remotely. He recalled his mother mentioning an assisted living home in Las Cruces she might like, based on recommendations from her friends. It’s not where she is now.

The Hamiltons first tried to get power of attorney at his mother’s bank but learned Rio Hamilton’s driver’s license had expired a day earlier, so he had no valid identification to complete the form.

They then went to see Banks because, Rio Hamilton said, “she was the only lawyer we knew.”

They had first contacted Banks two years earlier about rewriting his mother’s will, but when they left her office back in 2017, “my mother decided she did not want to work with her.”

When they met with Banks on July 20, 2019, Rio Hamilton said he explained the need for the power of attorney and brought photos of the condition of his mother’s home. Banks said she knew a firm that would clean it out, he said. It happened to be the same firm that ended up as corporate guardian, Advocate Services of New Mexico. The owner, Sandy Meyer, didn’t return Journal email and phone requests seeking comment.

Rio Hamilton contends they never discussed with Banks that his mother needed more than a power of attorney or that she should be put in a guardianship, which is considered an option of last resort under the law when there are no alternatives.

Hamilton said he didn’t get power of attorney that day because an employee at Banks’ office who could notarize the document wasn’t there and he had to leave for Albuquerque. But he said Banks kept in touch about getting his mother’s home cleaned.

About two weeks later, Hamilton said, he received paperwork in the mail showing that a Las Cruces judge had placed his mother under a temporary corporate guardianship.

“I was shocked. I didn’t understand it. It had my name all over it, but there was no place for me to sign, and this wasn’t what I expected. I was expecting actually an agreement so we could just pay for the hourlong meeting we had.”

His mother was still living in her home at that point but was already complaining that she had no access to any of her bank accounts.

Accounts closed

Court records show that nine days after Doris and Rio Hamilton met with Banks, Judge Arrieta granted the temporary guardianship/conservatorship to Advocate Services, permitting the firm to close Hamilton’s bank accounts, seize her funds and transfer the money to another bank.

According to the docket sheet, it was another three weeks before the court received and approved a request for emergency evaluation and take her to a hospital. The records are sealed, so it isn’t known who requested the order.

Rio Hamilton said a Las Cruces police officer went to his mother’s home that day and “then followed her to the courthouse (allowing her to drive there in her own car). She said, ‘If a judge has decided that I’m incapable of living by myself … and I haven’t had a hearing, I want to talk to the judge.'”

So police followed her to the courthouse, and she sat inside on a bench waiting for the judge, whom she never saw.

Rio Hamilton said the officer waited for 15 to 20 minutes, and then “they put her in a police car and took her to the hospital and be admitted because they claimed she had a urinary tract infection. And she never ever returned to her home again.”

From there, he said, she was taken to a memory care facility arranged for by the corporate guardian.

The locks were changed on her home, and many possessions were sold or thrown out, Rio Hamilton said. A treasured 1927 Bible is still missing.

As for the car in which Dorris Hamilton drove herself to the courthouse? Rio Hamilton says it was taken away by the guardian and sold.

The conservator wanted to sell her house, Rio Hamilton said, but the effort fizzled after they found his name was also on the deed.

It’s gotten better

Appointment of a temporary or emergency guardian “represents a significant deprivation of liberty,” according to the National Conference of Commissioners on Uniform State Laws, which offers a model guardianship law for states. The emergency track is a way for the court to immediately protect an individual in urgent need of such protection. But the model law contends an alleged incapacitated person needs to immediately have his or her own attorney.

It turned out Dorris Hamilton ended up with at least three attorneys at various times — only one of whom was her choice, her son said.

Although she was originally listed in records as the attorney for petitioner Rio Hamilton, CaraLyn Banks withdrew from that role in the fall of 2019. But she remained in the case representing Doris Hamilton against him, Rio Hamilton said. That was in addition to the guardian ad litem attorney, who was appointed by the judge to represent Dorris Hamilton’s best interests.

Earlier this year, the guardian ad litem left the case, and Dorris Hamilton finally got an attorney of her choice— provided free of charge by Disability Rights New Mexico.

The public court docket sheet reflects that the attorney for Disability Rights has opposed at least one motion by Banks.

Since Rio Hamilton was appointed his mother’s guardian, friends including Papen said they’ve been able to meet with Dorris for lunch. On one of their excursions, Dorris and her son hired a ride-share to take her to church. As the two were talking in the back seat, the driver asked whether she was the same Mrs. Hamilton who taught at his school.

“He was so in love with seeing her again, he almost carried her from his Jeep to the church door,” Rio Hamilton said. “She really does have that kind of legacy here.”

With the six months under Rio Hamilton’s guardianship ending this month, Judge Arrieta may soon consider whether to discharge Banks from the case. And in some ways, doing so would set his mother free, her son said.

“Things are getting better,” Dorris Hamilton told the Journal last weekend after she and her son had been out shopping for a new winter dress. “I stay on the positive side.” Without her son’s help, she said, “It wouldn’t be as good.”

 

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