‘They are able to take you away’
NM has made strides to rein in bad conservatorship actors, but new cases show that there is so much more to be done
Three weeks after court approval of an emergency petition immediately turned Dorris Hamilton’s bank accounts and legal affairs over to a corporate guardian, police showed up at her Las Cruces home to take her to the hospital for an evaluation and, ultimately, to a nursing home — upending life as she knew it.
It’s not surprising to those who know the strong-willed Hamilton, the first Black woman to graduate from the University of Arkansas and the first Black public school principal in New Mexico, that she had other ideas when officers knocked on her door in August 2019. Hamilton, now 93, told police that “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.”
Her son, Rio Hamilton, says Dorris was allowed to drive her car (later driven away and sold by her conservator) to the courthouse, where she waited on a bench for 20 minutes in an unsuccessful attempt to see the judge on her case.
It is yet another case of families finding themselves shut out of the emergency guardianship process when someone files a petition. As reported by the Journal going back to the 2016 series “Who Guards the Guardians?” families watch helplessly as their loved one is removed from their home, bank accounts are closed, and court-appointed guardians and conservators take control of their lives. All at a substantial cost to the protected person’s estate. Rio Hamilton estimates the cost so far in the continuing case to be well over $100,000. That doesn’t include his own legal fees. There are glaring holes in the system that must be fixed. According to court records, there was no hearing on the emergency petition that would have allowed all sides, including her son, to weigh in before the judge made his decision. In fact, the petition filed by a Las Cruces lawyer listed Rio Hamilton as the petitioner, while stating (with no physician exam) that Dorris was suffering from vascular dementia. Hamilton denies he sought the corporate guardianship and said he took his mom to see the lawyer only in an attempt to get a power of attorney after a bank had turned down his request because his driver’s license had expired.
He finally succeeded in May — nearly two years later — in being named his mother’s guardian, but there is still a court-approved conservator in charge of her nest egg. Or, rather, what’s left after court-appointed entities and lawyers have billed.
Hamilton has persevered. He can see his mother and take her on outings, something she is happy about. But the case is not concluded. At some point, he said, his mother would like to move to a different facility, or even back to her home — which the conservator would have sold except Rio’s name was on the deed.
But loved ones and their families need additional protections.
Supreme Court Justice Shannon Bacon told the legislative Health and Human Services in August that guardianship reform in New Mexico is not complete.
“We have got to change the emergency guardianship process … that allows somebody on a very bare-bones petition to assert that a guardian needs to be appointed immediately” with a promise to come back later with detailed proof, she told the panel.
Bacon acknowledged that emergency petitions are necessary at times. “Mom is in a nursing home and her son has gotten hold of her debit card and is withdrawing funds as fast as he can,” Bacon told lawmakers. “So, let’s put a stop to that through an emergency petition. That’s an appropriate use.”
But Bacon said the courts also see attorneys file emergency guardianship process with a promise of proof to follow. She told lawmakers that, in some cases, the judge “will kick the can down the road” and not be presented in timely fashion with the proof necessary by clear and convincing evidence that the individual is in need of a guardianship or conservatorship.
Lawmakers could make a significant improvement by adopting provisions of the model Uniform Guardianship Act drafted by the national Conference of Commissioners on Uniform State Laws in 2017.
The model code not only requires the person who would be placed in an emergency guardianship to have a lawyer appointed immediately, but also that a hearing be held in as little as five days on whether such a drastic measure is warranted. That would have given Dorris Hamilton a lawyer and, perhaps, the opportunity to talk to the judge face to face as she tried to do when she was taken from her home — ostensibly for her own good.
So, yes, New Mexico has made important strides in reforming the process. Petitions seeking guardianships and conservatorships are public record. There is a grievance process. A system of monitors is being set up. But the story of Dorris Hamilton and others like her shows there are more steps to be taken to ensure an emergency guardianship that completely upends a person’s life is absolutely necessary and that no less-restrictive measures will suffice.
In the words of former Senate President Pro-Tem Mary Kay Papen, D-Las Cruces, who had known Dorris Hamilton for years, “I find it quite scary as we 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.”
Indeed. It should frighten all of us. Including New Mexico legislators who need to enact additional reforms that, in the words of Bacon, would “make the emergency process truly for an emergency and have extra safeguards in place so it cannot be abused by anybody.”
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