“We are faking it. We pretend like we have a guardian system and there’s nothing in place.”
– Sen. Jerry Ortiz y Pino, D-Albuquerque
A 2008 audit of ongoing guardianship cases found problems with “25 to 35 percent and maybe more … enough cases that we realized we should take it as an alarm.”
– Ted Baca, then-chief judge of the 2nd Judicial District Court
How can a group of strangers take control of an elderly individual and their estate; disregard retirement preparations, including wills, trusts and powers of attorney; drain bank accounts, and sell off belongings and property to pay themselves and colleagues; even bar family members who had been caregivers for years from seeing their loved one – all with the imprimatur of the court?
They can. And they have. In virtual secrecy and sometimes without the person about to be relegated to “ward” status and with no rights ever appearing before a judge. In other cases, the process is well underway before there is even a hearing where all family members have an opportunity to be heard.
All this happens in a well-intentioned and necessary guardianship “system” that has virtually no outside accountability – Judge Shannon Bacon of Albuquerque admits it essentially is an “honor system” because the underfunded courts lack money to review or audit cases as the state “doesn’t have three cents to rub together.”
It is wrong and it needs to change.
Reporter, author, columnist and television commentator Diane Dimond uncovered all this and more in her five-part investigative series on guardianship in New Mexico published by the Albuquerque Journal (the entire series can be found at ABQJournal.com).
Dimond, an Albuquerque native, recounts the story of an estate valued at $5 million drained to $750,000; a 17-acre North Valley ranch sold at what would appear to be far below market value to someone who turned around and sold it to the state for twice the price; children shut out from caring for their mother by court-appointed for-profit professionals; familiar medical professionals replaced with strangers – and all without the judge who signed off on the arrangement ever interviewing 79-year-old Blair Darnell or holding a hearing to determine whether she was, in fact, “an adult incapacitated person.”
That label automatically revoked Blair’s civil rights – she could no longer travel alone, vote, enter contracts, decide who her doctors were, say who could visit her home or spend her own money. Instead, her court-appointed guardian and conservator called all the shots – including declaring that, if the family couldn’t get Blair’s beloved dog out to “relive(sic) herself, she must go.”
Unfortunately, problems in guardianship cases are not rare.
Former Chief Judge Ted Baca ordered a review during his tenure that found problems in a quarter to a third of cases checked by lawyers on a volunteer basis – including wards who had been abandoned by guardians or were living in dilapidated surroundings without enough nourishment.
More than one attorney told Dimond they advise families to steer clear of the system because there are no checks and balances, and excessive secrecy.
When the best thing you can say about a system is to avoid it, there’s a problem. And the attorneys and family members who spoke to Dimond did so in fear of reprisals and in violation of what retired District Judge Anne Kass of Albuquerque calls an inbred “code of silence.”
There’s the daughter of a deceased ward who asked for clarification of her mother’s $5,000 funeral expense because the $1,000 cremation fee was prepaid and services were held at her mother’s home.
There’s the daughter of a deceased ward who was forbidden to see her father during the final months of his life because she challenged the conservator’s proposed distribution of funds without an independent forensic audit.
There are the daughters of a ward who learned that, after 25 months in charge, the conservator had not paid taxes on their mother’s property in Texas and foreclosure was imminent.
Imagine being told out of the blue that you can’t see your elderly and frail mom or dad. Imagine being elderly and frail, and being told you can’t see your children. All because the guardian thinks there is too much “bickering.”
Imagine carefully planned financial decisions and legal instruments being thrown out so court-appointed for-profit folks can be paid to make all the decisions.
Professionals in the system are unapologetic. They say their responsibility is to the wards, not their families. They have been accused of being threatening and intimidating, and have been known to tell people to never again contact them.
And the majority of those entrenched professionals who live off New Mexico’s guardianship system – lawyers, guardians, conservators, providers who range from dog walkers to in-home caretakers – maintain the system is working just fine, thank you very much, in protecting the interests of the “incapacitated.”
Judges are on that same bandwagon.
In an op-ed in today’s Journal, 2nd Judicial District Court Chief Judge Nan Nash, and elder and disability attorneys Amanda Frazier and Judith Paquin defend the system and the secrecy. It is simply more of what Ortiz y Pino found in 2013 when he sponsored a measure to establish a task force to look into complaints: “What we ran into, frankly, was that anytime we got into guardianship issues, the attorneys who deal with probate in the state went ballistic – they did not want us to even open the door.”
Baca came up against the same resistance. For several years, the court tried to get the Legislature to fund a larger study with the goal a statewide office to oversee all guardian cases. Eight years later, it is still status quo. So while, as his audit found, the system works in many cases when an elderly adult is at risk, it simply does not work in others and needs reform.
Several steps to correcting this have nothing to do with money, and everything to do with transparency and accountability. Multiple families said their complaints to the bar association, state legislators, regulatory boards, the district attorney, the Albuquerque Police Department, the attorney general and the Governor’s Office amounted to nothing, likely in great part because it’s hard to fight decisions protected by court secrecy.
While the court claims it is guarding elderly individuals’ privacy, there is a world of difference between holding a court-appointed professional accountable for oversight decisions and spending, and safeguarding an individual’s medical information. Right now, the court blankets everything per vaguely written sections of the state’s Uniform Probate Code.
Kass says, “We need to have a really profound conversation between privacy and secrecy, and develop a better way of measuring it.”
It should also be the rule, not the exception that, unless it is physically impossible, the elderly person appear in court and be questioned by the judge before even being called incapacitated. The same goes for hearing from all concerned relatives – rather than simply taking the word of whoever filed an emergency petition to have the senior put under guardianship. There should be full hearings, as stated in state law, and relatives should be first in line to become guardians.
In general, relatives should also not be barred from seeing each other. Outgoing Rep. Conrad James, R-Albuquerque, tried to curb the practice of guardians banning family visits that might upset a ward, saying, “Isolating seniors from their family is the first step of abuse in these cases.” He plans to have a legislator carry a similar proposal in the session that starts next month.
And the requirement that family members sign a waiver of liability releasing “any and all liability for actions taken in (his/her) capacity as conservator and trustee” before they can receive their inheritance flies in the face of accountability. If conservators and guardians are indeed professionals, they should be able to stand by their decisions.
It is shocking that guardians and conservators are not licensed in New Mexico and, while some may have various certifications, those can be purchased online after a short exam. Requiring some training, certification and state licensing in financial planning, social work and elder care seems more than reasonable for allowing someone to take control of a life and an estate.
Dimond’s series is a wake-up call to New Mexico. Unless and until these changes are implemented, the best advice for those dealing with a parent with purported diminished capacity comes from Dr. Sam Sugar, founder of Americans Against Abusive Probate Guardianship. He tells family members to “never even consider guardianship or hiring an attorney.”
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.