WHO GUARDS THE GUARDIANS?

Fixing a well-meaning but flawed guardian system

EDITOR’S NOTE: The Journal published a five-part investigative report from Sunday, Nov. 27, through Thursday, Dec. 1, about the problems and heartache in the state’s elder Guardianship system. To read those stories, go to ABQJournal.com/guardians.

Today, some possible solutions.

It won’t be easy to overcome budget challenges and opposition from entrenched interests. Earlier efforts have failed. But judges, lawyers, aggrieved family members and others agree there are ways to fix some of the flaws in New Mexico’s guardianship system as outlined in a five-part Albuquerque Journal series.

Here are some of their suggestions to cure an ailing system that can make inheritances disappear, fracture families and take away the elder person’s dignity and freedom.

Curb excessive secrecy — except for medical information protected by federal law. Time and time again, people critical of the system say transparency would be the best deterrent. Responding to the Journal series, retired District Judge Anne Kass of Albuquerque told the Journal she believes, “We need to have a really profound conversation between privacy and secrecy and develop a better way of measuring it … (deciding)

when it’s OK and when it isn’t.”

■ Give aggrieved family members a meaningful forum to air their complaints — a forum that can hold accountable the paid professionals in the guardianship industry.

■ Family members should be involved, not shut out of the ward’s life. Instead of labeling family members as “in conflict” or “upsetting” to the elder and curbing their visits, guardians and conservators should include them in the elder’s everyday decisions. Rep. Conrad James, R-Albuquerque, says the process of “isolating the senior is the first step of abuse in these cases.”

■ Elevate the evidentiary requirement for an elder to be declared incapacitated and make sure all family members are heard. Require the elderly person to actually appear in court and be questioned by the judge unless it is physically impossible.

■ Require specific training and issue state licenses for guardians and conservators. New Mexico has more licensing requirements on the books for hairdressers and landscapers — because there are none for guardians and conservators.

If a court appointee is going to manage cases with complex medical or financial issues, they should show they are qualified in those fields.

■ The Legislature needs to recognize the problem and approve additional court funding. Judges need sufficient resources to monitor the growing number of guardianship cases. As described in the Journal series, the program currently runs on the “honor system” with little or no auditing or oversight of how appointees spend the ward’s money.

■ Get the elder person’s wishes preserved on video with family members present.

■ Judge Kass urges families to find their own answer to the question of what to do with an ailing mom or dad. “Encourage some kind of a reconciliation process,” she said, “where you bring family members together as opposed to allowing the adversarial process to continue and perpetuate the fight.”

■ What can a cohesive family do to protect itself? Dr. Sam Sugar, founder of Americans Against Abusive Probate Guardianship, counsels family members to work hard at finding their own out-of-court resolutions. As he put it, “Never even consider guardianship or hiring an attorney.”

Sunshine

Unlike those of most states, New Mexico’s guardianship system is steeped in secrecy. Courts here routinely sequester proceedings, citing vaguely written sections of the state’s Uniform Probate Code, and order all participants to remain mum about the case to protect the privacy of the elder person. Critics say this lack of transparency quashes legitimate concerns and allows judges and attorneys to ignore both family members and important legal documents prepared by the elder, such as wills, estate plans and powers of attorney.

One Albuquerque lawyer who is representing a family in a guardianship drove the point home.

“There are bad things happening. Even if they’re legal, they are bad things,” he said. “The societal cost of this secrecy is too damn high.”

Retired Judge Kass says that when she read some of the comments from guardian system insiders quoted during the Journal series, “What popped into my head was: the code of silence and how inbred this thing is with the people who work in it.” She added, “From my perspective, self-regulation doesn’t work, has never worked and can never work.”

Judges and others say the secrecy is necessary to protect a ward’s privacy, especially on medical issues. Families don’t disagree with limited protection, but doing virtually everything in secret only serves to alienate those closest to the elderly person — the people who are more familiar with their parent’s desires than any courtappointed stranger could ever be.

Legislative attempts

New Mexico lawmakers have been aware of the problematic system for years. The Legislature established work groups to study the program’s shortcomings in 2008, 2009 and 2012. The result? No changes were made.

In the summer of 2013, Sen. Jerry Oritz y Pino, D-Albuquerque, sponsored a measure to establish a task force to look into complaints made by family members whose elderly loved ones had been declared “incapacitated” by the court, had their civil rights terminated and had been placed under court-controlled guardianship.

Ortiz y Pino had heard complaints about the system — charges of financial impropriety on the part of guardians and conservators, allegations that elder “wards of the court” were being isolated from their children, claims that wards were being seriously overmedicated by caregivers — but the task force focused only on three areas of conflict:

1. Families wanted more access to information about decisions the court appointees were making on behalf of the “ward of the court” so they could evaluate their parent’s care.

2. Because court appointees and all the service providers they hire are paid out of the elder’s accounts, family members wanted guardians and conservators to be more accountable to them. They wanted to know more about how their parent’s money was being spent to ensure against stranger exploitation.

3. And finally, there was confusion about who had decision-making authority after the death of a protected person if no family member stepped forward.

When the 16-member task force was appointed, interested family members and groups like the National Association to Stop Guardian Abuse were stunned to learn they would not have a seat at the table. The panel was populated, primarily, with state bureaucrats and those who worked in the for-profit elder care industry.

In the end, the task force decided that the Uniform Probate Code, which was written in 1978, needed no changes except a minor clarification about the afterdeath process. The panel was firm in its decision not to require for-profit guardians, conservators and trustees to provide additional financial information to family members.

“Not all family members will have the best interests of the protected person in mind,” the final task force report said, “particularly when such family members may stand to gain from the estate … upon (the ward’s) death.”

Marcia Southwick of the National Association to Stop Guardian Abuse told the Journal, “That’s the most insane conclusion I’ve ever heard.”

“There are people who make tons of money off these estates … and they don’t even have to tell the heirs where their inheritance is going? Completely insane.”

Ortiz y Pino says opposition to any change is fierce.

“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.”

Court help

Ortiz y Pino agrees courts need more resources and recalled efforts undertaken in 2008, led by then-Chief Judge of the 2nd Judicial District Ted Baca, to get legislative funding for a program to study guardianship cases.

Judge Baca told the Journal he had a volunteer group of lawyers audit about 60 ongoing guardianship cases and discovered problems with, “25 to 35 percent and maybe more,” of them. The 2008 review, Judge Baca said, revealed “enough cases that we realized we should take it as an alarm.” Wards were living in dilapidated surroundings without enough nourishment, some had been abandoned by their guardians and others had died and there was no way to discover what happened to their assets, the judge said. For three or four years the court tried to get the Legislature to appropriate $250,000 for a larger study but the funds were never approved. Baca said the goal was to show the need for a statewide office to oversee all guardian cases. More than eight years later there is still no such office.

Training

Equally incomprehensible to critics is the fact that a hairdresser or landscaper needs more certification and licensing to operate in New Mexico than a guardian/conservator. Advocates for changing the system want to make it mandatory for those who control others’ lives and estates — sometimes multimillion-dollar estates — to be trained and certified in financial planning, social work and elder care and licensed by the state to work within the guardianship system.

Guardian/conservators frequently are tasked with managing complex portfolios of investments, dealing with a ward’s multiple real estate properties or overseeing an elderly person suffering from chronic medical problems. Yet the state requires no specialized training for a court appointee in any of those categories.

Higher standard

An Albuquerque woman whose mother was under guardianship for the last two years of her life wants to see changes in the requirements for how guardianships are established.

Her sister first petitioned the court and was successful in getting a guardian and conservator named. Unfortunately, the judge acted without learning that the petitioner had a police record and other profound family issues. The woman interviewed believes judges should require mandatory background checks on those who bring guardian petitions. And she — like many other concerned relatives — wants judges to listen to all sides in a dispute, not just to the version given by the person who made it to the courthouse first.

“Each and every allegation made by the petitioner must be accompanied by clear and convincing evidence,” the woman told the Journal. “There must be a full evidentiary hearing where anyone familiar with the alleged incapacitated person is allowed to speak … under oath.”

No one would agree more with that suggestion than Mary Darnell, a primary subject of the Journal’s five-part series. In the guardianship petition filed by an attorney for Mary’s eldest sister, numerous allegations were made accusing Mary, their mother’s primary caregiver, of “negligence” and financial “selfdealing.”

Mary and two other siblings insisted the charges were not true but say the judge never allowed Mary to defend herself. And without ever speaking to the 78-year-old Blair Darnell, the judge signed off on court documents that immediately referred to her as “an incapacitated adult.”

In addition, the three youngest Darnell children say they were never alerted to the fact that there was going to be a hearing to decide their mother’s future. It was all done on an emergency basis. Several other adult children who spoke to the Journal also said initial guardianship proceedings for their parent were held without their knowledge.

That’s despite state statutes that require adult children of potential wards be given 14 days’ notice of a guardianship hearing. Another statute requires that serious consideration be first given to appointing a family member as guardian before any outside, forprofit company or person.

Critics say those laws are too often ignored.

Promises

Mary Darnell says she promised her mother that she would work to change the guardian system that controlled their lives for five years. “A person’s wishes need to be honored,” Mary said, a reference to her parent’s will and estate plans. She insists there has to be a way to prevent an estate from being decimated — in Blair Darnell’s case, from $5 million to $750,000 in her last five years despite the fact she had both a trust fund and social security income.

“When you are dealing with other people’s money and assets,” Mary said, “there has to be strict oversight … (and) that responsibility falls to the judge who presides over your case.”

If a judge doesn’t require appointees to write accurate reports or submit professional accounting then, as the Darnells’ youngest daughter put it, “The families are just out of luck.”

Mary also believes there must be a way to preserve an elder person’s sense of freedom even in the face of diminished mental capacity.

Financial oversight

One recommendation from Ortiz y Pino’s 2013 task force that family members firmly support is appropriation of additional money to the courts so they can more effectively review conservators’ and trustees’ annual financial reports — something that never happened.

Many families complained to the Journal about the liquidation of assets that primarily went to pay appointees’ and caretakers’ fees. And in some cases, even when judges specifically ordered a conservator to provide a more complete accounting to families, relatives of wards say the order was ignored with no repercussions.

Several children of deceased wards suggested there should be a cap on lawyer, guardian and conservator fees, perhaps based on a pre-set percentage of the estate.

As for the frequently heard

MARY DARNELL: “MY MOTHER TOLD ME, ‘GET THESE LAWS CHANGED SO THIS DOESN’T HAPPEN TO ANOTHER FAMILY.’ AND I INTEND TO DO THAT.” MARCIA SOUTHWICK OF NATIONAL ASSOCIATION TO STOP GUARDIAN ABUSE: “FAMILIES ARE SENT BACK TO THE SAME OLD COURTS WITH THE SAME OLD ATTORNEYS WHO DID THIS TO THEM IN THE FIRST PLACE.” RETIRED JUDGE ANNE KASS: “WHAT POPPED INTO MY HEAD WAS: THE CODE OF SILENCE AND HOW INBRED THIS THING IS WITH THE PEOPLE WHO WORK IN IT.”

complaint about cronyism — that petitioning attorneys currently are allowed to recommend who should be appointed to lucrative guardian, guardian ad litem, court visitor or conservator positions and judges routinely accept those suggestions — critics of the current system were unanimous that practice should be abolished in favor of random selection from a pool of qualified candidates. After reading the Journal’s report, retired Judge Kass expressed surprise. “In my court the quickest way to make sure somebody didn’t get appointed as a guardian was for one side to recommend them,” she said, “I always kept control over it.”

Waiver

Every family member and advocate for change interviewed by the Journal was firmly opposed to the Waiver of Liability document heirs must sign before their inheritance is distributed. They want the waivers eliminated. The waiver protects the court appointee assigned to manage the ward’s finances from “any and all liability for actions taken in (his/her) capacity as conservator and trustee.” Once the family signs the waiver, legal recourse against the conservator becomes virtually impossible, even if they believe they have proof of malfeasance. The daughter of a ward told the Journal that despite her suspicions of thousands of dollars in questionable burial costs and other financial improprieties with her mother’s estate, she was forced to sign such a waiver if she wanted her inheritance check. She called the process “courtsponsored blackmail.”

Forum for redress

Marcia Southwick of Santa Fe established the popular Facebook page called Boomers Against Elder Abuse a few years ago, and it now boasts more than 150,000 members. As one of three directors of the National Association to Stop Guardian Abuse, she suggests a strong state disciplinary board where family complaints are taken seriously and published for all to see. Only when the secrecy of the system is lifted, she said, can citizens know if there are multiple complaints against a court appointee and disciplinary action or criminal charges can be pursued. Southwick would also like families and wards to be given another venue in which to ask for guardianship relief. As it stands now, “Families are sent back to the same courts with the same attorneys who did this to them in the first place.” Relatives of wards who spoke to the Journal say their repeated complaints to outside entities — the district attorney, attorney general, law enforcement and the disciplinary board that oversees ethics complaints for lawyers — went nowhere.

Protect yourself

What can a cohesive family do to protect itself?

Dr. Sam Sugar, founder of Americans Against Abusive Probate Guardianship, urges families to avoid lawyers and guardians and work hard at finding their own out-of-court resolutions. He also wants retirees to understand that there are geographic zones within retirement states (like New Mexico) that are at a higher risk of unwanted guardianships than other places. Elaine Renoire, another director at the National Association to Stop Guardian Abuse, suggests a mandatory, videotaped family meeting at which the parents lay out their legal documents, share their wishes for division of their estate and answer any questions from their children. At the end of the meeting, Renoire suggests, all family members sign an agreement not to challenge the estate plans and if they do, they automatically forfeit their inheritance. This kind of evidence, gathered when parents are of sound mind, could be helpful in convincing a judge of the true desires of a potential ward.

Isolation

Rep. Conrad James, R-Albuquerque, introduced a bill this past legislative session addressing one of the issues with the current guardian system.

Guardians now have the power to ban visits from adult children and longtime friends if it’s determined the visit will upset the ward or expose them to physical harm. Critics charge that conclusion is reached way too often and frequently aimed at those who have questioned guardian actions. James’ bill would have curbed the nonvisitation practice. The proposal passed in the House but died in the Senate. James told the Journal that although he did not seek re-election, he will get another legislator to introduce the bill in January when the Legislature reconvenes. “I believe … isolating seniors from their family is the first step of abuse in these cases,” he said.

And finally

Critics point out there is a statute in New Mexico declaring it a felony for anyone to unlawfully take $20,000 or more from an elderly person. Enforce this. Professionals who egregiously overcharge or fail in their duties (causing monetary losses to the elder or the heirs) should be held accountable.