Who Guards the Guardians: Family laments mom's fate under court guardianship - Albuquerque Journal

Who Guards the Guardians: Family laments mom’s fate under court guardianship


Copyright © 2017 Albuquerque Journal

At the age of 91, Mary Louise Terry was getting by on food stamps and monthly Social Security checks, living under the care of her son in her home of 11 years on Belen’s main street.

But a $100,000 insurance windfall Terry inherited after that son died in May 2015 marked the beginning of the end of her stable family life.

Terry, who has dementia, is now under a guardianship approved by a Valencia County district court judge. She is in her fourth nursing home in six months despite the fact she has three sons and a daughter-in-law willing to care for her.

Terry – who had two other sons die within three months of each other in 2015 – was assaulted last month by another nursing home resident and has since been moved to a different long-term facility in Albuquerque.

This family photo taken in the early 1960s shows Mary Terry with five of her six sons, including David Stout, who is at the far right of the bottom row. David had been taking care of his mother at their Belen home until his death in May 2015.
This family photo taken in the early 1960s shows Mary Terry with five of her six sons, including David Stout, who is at the far right of the bottom row. David had been taking care of his mother at their Belen home until his death in May 2015.

Her Belen house is gone, sold by the guardian/conservator who by law can be paid out of an incapacitated person’s assets. The state of her finances is unclear. And family members in New Mexico say court-appointed professionals rejected their offer to take care of Terry in their own homes.

“Mother should have been allowed to live whatever years she has left the way she wanted to. Like all the rest of us want to,” daughter-in-law Lois Painter of Albuquerque said last week.

“None of us wants to live like she has been living … Shuffled from one place to another, beat up, etc. No one, right mind or not, would want this happening to them or their loved ones. What would you think if this happened to your family?”

Secret process

Court records show that in December 2015, Terry’s daughter who lives in Texas filed a petition seeking appointment of a professional guardian/conservator to oversee her mother’s finances and health care – all under a secret legal process that’s supposed to be a “last resort” to protect an incapacitated person.

Now, most if not all the $100,000 insurance proceeds are gone, other family members say.

They say the guardian/conservator firm, which handles all of the Terry’s finances, took control of her $753-a-month Social Security checks, which had previously been automatically deposited.

The New Mexico family complains that the guardian never closed her bank account, so hundreds of dollars of still-unpaid overdraft charges have been assessed. Late payment fees and disconnect charges accrued when the utility bills at the Belen home hadn’t been paid by the professional guardian. Her homeowners’ insurance also lapsed, Painter told the Journal.

Last fall, the guardian notified the family that Terry, now 93, had to move from her Belen house to a $5,500-a-month assisted living home. Just two months later, the family was told Terry was being evicted because her money had run out. Terry has lived in three other homes since then, but family members aren’t sure how those bills are getting paid.

“There’s been no accounting of money to us at all. None. All that was told is, Mary doesn’t have any more money,” Painter said.

Guardians have authority over the personal health and welfare of the individual adult deemed incapacitated by a court.

But family members say that, in the past year, the assigned professional guardian “never shows up” when issues with Terry’s care arise and consistently asks Terry’s son to respond to emergencies.

Roxanna Gates, owner of the guardianship company, CNRAG, Inc., declined to respond to questions from the Journal, citing confidentiality surrounding guardianship matters.

Painter said last month that CNRAG sold Terry’s Belen house for about $82,000, which Painter said was $40,000 under the appraised value. How much of that money will go to the guardian or other bills isn’t information that is furnished to her New Mexico family – only to the court.

Terry’s family members in New Mexico say Terry has had to foot the entire bill for the guardian/conservatorship, and that’s not fair.

“She wants to go home and there is no more home,” Painter told the Journal. “So what do you tell her?”

Tragic events

Terry’s life changed dramatically after her son, David Stout, died in May 2015. At the same time her son Jimmy, Painter’s husband of 30 years, was dying of cancer.

So another of Terry’s sons, Donald Stout, asked their sister, Peggy Hunter, to come to New Mexico from her home in Odessa, Texas, to help take care of their mother while Jimmy was in his final months. He died July 14, 2015.

Hunter’s arrival unleashed a series of legal actions that Painter says was never anticipated.

Within weeks, Hunter took her mother back to Texas where Terry executed a power of attorney giving her daughter the right to make decisions on her behalf.

Hunter paid the remaining $34,000 left on her mother’s home mortgage out of the insurance proceeds from David’s death, but family members here allege that Hunter, who declined comment, also took unexplained cash withdrawals from their mother’s bank account.

Unbeknownst to the New Mexico siblings, a will was drafted in Texas and later filed in Valencia County, making Hunter the sole beneficiary of Terry’s estate. Valencia County records also show a quitclaim deed was filed in July 2015 to give Peggy Hunter co-ownership of Terry’s home.

When he learned what was happening, records show Terry’s son Donald Stout went to an attorney, who drew up a codicil to the will so Terry’s assets would be split equally among her children, except for Peggy, who would get $1. Records show that in October 2015, Stout and his wife filed a quitclaim deed adding their names to the house and reserving the home for Terry “as a life estate unto herself.”

But the tension between Hunter and her New Mexico family mounted. Belen police were called out. Stout, on behalf of his mother, filed a restraining order against his sister. A court commissioner found no domestic abuse but admonished Peggy that her mother didn’t want any contact with her, records show.

By December of 2015, Hunter had an attorney file a petition seeking to appoint the outside guardian and conservator. The petition asked the judge to appoint the firm, CNRAG, Inc. of Fairacres, N.M., near Las Cruces, as the guardian and conservator.

To advise the judge on whether Terry should be declared incapacitated and have a professional guardian appointed, Hunter’s petition also provided the judge the names of three people – all of whom are familiar New Mexico guardian industry insiders. The trio consisted of an attorney who acted as a guardian ad litem to represent Terry in the matter, along with a court visitor and a mental health professional.

“Ms. Terry is unable to express her wishes for medical care, nor is she able to manage her property or affairs effectively and such property may be wasted or dissipated unless proper management is provided,” the petition stated. The petition stated that Terry’s bank accounts at that time totaled about $32,000.

Hunter contended in the court document that her brother, Donald Stout, was “placing undue influence on Ms. Terry and exploiting her.”

But it took District Judge Allen R. Smith of Los Lunas four months to hold a hearing on the petition.

At that time, in an April 2016 hearing closed to the public, the judge received reports from the court visitor, guardian ad litem and mental health evaluator he had already appointed at Hunter’s request. He then found Terry to be incapacitated and appointed CNRAG.

At the time, Mary Terry was still living in her Belen home with her son, Donald Stout. And Stout, who lives in Albuquerque with his wife, took care of his mother at her Belen home for another four months after the guardianship was approved.

Then, last August, the guardian informed the family that Terry was to be sent to a nursing home. Records show that both Hunter and Stout on Aug. 31 of last year filed paperwork to return ownership of the house to Terry and ultimately her guardian, CNRAG, Inc.

Asked about the guardianship, Hunter told the Journal,”I have nothing to say to you.” She also said she knew of no “issues” with the guardianship company.

Back in November 2015, Hunter filed a written statement responding to the restraining order request. She stated that she loved her mother and “fully intend to have Mother back in my care because she is not safe with him,” referring to her brother, Donald.

Hunter currently lives in Texas, Painter said.

Better off at home?

No one disputes that Mary Terry has dementia, but her son Donald Stout and daughter-in-law Painter say they believe she would be better off living with them at their homes.

Painter said she believes that when the proceeds from the sale of Terry’s home run out, the state Medicaid program will likely be footing the bill for her nursing home care.

“The guardian and the court system have taken her money and squandered it,” she added. “That means us taxpayers will be picking up Mother’s tab.”

Before CNRAG, Inc., was appointed, Painter said she met with Terry’s appointed guardian ad litem Barbara Buck and was told she couldn’t be appointed Terry’s guardian/conservator because she had an IRS tax lien dating back to 2009.

“I was in business for myself, and I didn’t do my tax returns in a timely fashion,” Painter told the Journal . She said she ended up owing no money, and within six months, the liens were released.

Yet records show that Terry’s court-appointed private guardianship conservatorship, CNRAG, Inc., is owned by Gates, who filed for personal bankruptcy in the Western District of Oklahoma in 2004.

The CNRAG employee acting as Mary Terry’s guardian in Albuquerque is Robert J. Mendez. Records show that Mendez filed for Chapter 7 personal bankruptcy in 2012 in New Mexico. He didn’t return a Journal email requesting comment, referring questions to Gates.

Buck didn’t return a Journal phone call or an email asking whether she was aware of the bankruptcies.

Painter told the Journal that she and other family members were particularly offended by Mendez’s public Facebook page, which up until Thursday afternoon had stated under the Intro “Live for the moment, don’t dwell in the past and f— ’em if they can’t take a joke.”

Shortly after the Journal contacted Mendez about his Facebook photo, Mendez’s Facebook page was altered and the posting under the “Intro” section was removed. The phrase still appears elsewhere on Mendez’s site.

Gates and Mendez are both nationally certified by the Center for Guardianship Certification, in Harrisburg, Pa., and state records show they have passed criminal background checks.

New Mexico requires an annual report by an appointed-guardian/conservator. That report, due next month, is confidential by law. Painter says that document is off limits even to Terry’s New Mexico family.

Painter said she still doesn’t know exactly why Terry was removed from her Belen home.

“There’s nothing we can do,” Painter said. “We don’t have the money for an attorney. And Mother’s in a nursing home. We can’t do anything about that.”

Editor’s note: Last year, the Journal published a six-part investigative report, “Who’s Guarding the Guardians,” chronicling families’ complaints about the state’s system of court-appointed guardianships for the elderly. Next, the Journal looks at another family caught in the system:

Who Guards the Guardians: Guardianship reforms DOA in New Mexico

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