Copyright © 2017 Albuquerque Journal
An emotional public outpouring of loss, anger and regret opened the first meeting of a state Supreme Court commission examining the legal mechanism by which hundreds of incapacitated adults a year in New Mexico are placed under court-approved guardianships and conservatorships.
Nearly a dozen speakers recounted their experiences – mostly negative – with the provisions in the state’s legal system that permit third-party non-relatives and corporate professionals to dictate how the incapacitated adult, often times elderly, will live and how his or her money will be spent.
“I’m carrying a pretty big burden that I will carry the rest of my life because I approached the New Mexico legal system to help my mother with her affairs in her aging state,” a tearful Ruth Smelser told the commission meeting in Albuquerque. “And what has happened in the last two years through a court-appointed guardian is I have watched my father’s lifeblood drain away from her support as the unbelievable fees of a court-appointed guardian and their attorneys greatly diminish the assets that my father had left my mother to survive on when he was gone.”
“Had I known then what I know now, I never would have consulted with an attorney, I never would have trusted a judge to make the decision or determination, and I never would have gone down this path,” she added. “It’s shocking to me there is no oversight … no advocacy for human beings deemed incompetent to manage any element of their affairs.”
No one from the corporate guardianship industry in New Mexico spoke, nor any attorneys or judges who handle such cases. But Oscar Escareño, of the nonprofit The Arc of New Mexico, defended nonrelative guardians, saying that “some of the issues I’m seeing in the media lately I was taken aback by. It’s a learning process. We’re trying to do our best, and we’re not perfect.” His organization’s clients typically have developmental or intellectual disabilities.
Members of the professional guardianship industry contend they perform important work when family members are feuding and aren’t suitable to take care of their loved ones.
The commission is studying whether reforms are needed in the laws, rules, or court practices that up to now have mostly been playing out in closed-door District Court guardianship/conservatorship hearings, which by law are sequestered to protect the privacy of the incapacitated person.
The next commission meeting is set for May 12 at the State Bar Center, 5120 Masthead NE, Albuquerque. An interim report of possible recommendations is due to the Supreme Court by Oct. 1.
During nearly three hours of public testimony Friday, adult children of parents placed under such guardianships testified about their loved ones’ final days, voicing their frustration at how they believed the third-party guardian or conservator court process steamrolled their families.
“I would have rather today been at the cemetery spending some time with my loved one,” Sheri Benischek told the commission. “His wishes were in the process of being denied by the court when he died. My father was an articulate man, one who dotted his i’s and crossed his t’s. I am his messenger today, relaying to this commission what he was unable to do. He would have been appalled at what transpired in his final 12 days of life.”
She contended there are attorneys involved in such cases in New Mexico who are “unscrupulous.”
“These are attorneys who clearly circumvent the wishes of the incapacitated,” she said. “Wills and trusts are overridden; powers of attorney are thrown in the trash.
“Watching a loved one die in unfamiliar surroundings, overseen by a court-appointed stranger, i.e. a temporary guardian, is unforgiveable. I have many sleepless nights over this … and will until I die. It’s a setting I hope none of you on this commission ever experience. I have come to dissuade people considering retirement in this state. Why would anyone want to die here under the current practices of guardianship, particularly when their end-of-life wishes have been violated?”
John Smelser followed up his sister’s testimony by suggesting that mediation or arbitration should be attempted before a judge accepts a petition for guardianship.
“Let the families get together, let them discuss their differences … before these people get locked into the court system, because once you’re in the system, you can’t get out. It’s over. ”
Yet, Patricia Galindo of the state Administrative Office of the Courts, who is vice chairwoman of the commission, told the group any interested parties, under the law, can send an informal letter to a judge on a guardianship case, if they have concerns about the care or the financial decisions made by guardians or conservators.
“I have heard judges do receive these letters in the mail,” Galindo added.
John Smelser echoed the other speakers in thanking the commission for its work.
“Please don’t get the wrong idea if you don’t see these (meeting room) chairs filled, and as time goes on that some people have to filter out. We have jobs. We have things to do. But there are hundreds if not thousands of people who are so absolutely dependent on this process. … We’re out here in large numbers, and we’re counting on you to see our concerns.”