Albuquerque Journal

WHO GUARDS THE GUARDIANS?

Deck stacked in favor of system insiders; dissident family members feel steamrolle­d as estates disappear

- BY DIANE DIMOND ALBUQUERQU­E JOURNAL

Blair Darnell died on Nov. 18, 2015, at the age of 85. After a lifetime spent as a cowgirl and raising champion quarter horses with her husband, Casey, the last five years of her life were spent under a court-ordered guardiansh­ip and conservato­rship program approved by District Judge Beatrice Brickhouse.

After Blair Darnell’s eldest daughter, Kris Darnell-Kreger, disagreed with her siblings about what was best for their widowed mother and took the matter to court in January 2010, the once close-knit family fractured.

Blair, suffering early stages of dementia, was declared “incapacita­ted” by Judge Brickhouse, who appointed a team of for-profit profession­als to, literally, take over every facet of Blair Darnell’s life. As a “ward”

of the court, Mrs. Darnell lost her civil rights to make her own decisions.

The Darnell estate, estimated at $5 million when the court stepped in, dwindled to less than $750,000. The monies were spent to pay for Blair’s simple living expenses — even though she had trust and Social Security income — and for a team of court-appointed guardiansh­ip profession­als. The finances were administer­ed by a powerful court-appointed conservato­r named Darryl Millet.

Today, Casey and Blair Darnell’s three youngest children — Cliff, Emily and Mary — continue to seethe about how their parent’s beloved 17-acre ranch was divided up, dismantled and finally sold off without their consent by conservato­r Millet — even though a family trust was in place. Kris DarnellKre­ger has declined Journal requests to be interviewe­d.

Millett told the Journal he was faithful in his duties to do what was best for Blair Darnell. Court officials said Judge Brickhouse could not comment on the case.

The Darnells’ cherished childhood ranch was a prime bosque property with an extensive pasture and access to the Rio Grande. It has been described as beautiful, unique and supportive of migratory bird habitat. The events that led to the family’s losing the property can be tracked by court documents and other informatio­n uncovered by the Journal during a 10-month investigat­ion. It is a complicate­d legal trail that, the three Darnell siblings say, was fraught with emotion and frustratio­n and was extremely expensive for them to traverse.

Property sale

On March 20, 2013, Darryl Millet filed a motion with Judge Brickhouse requesting a hearing to approve his plan to sell the bulk of the Darnell ranch, about 15 acres. Under rules of the Uniform Probate Code, all guardian proceeding­s in New Mexico are strictly sequestere­d, kept secret, to protect the privacy of the ward.

Despite the secrecy, and the rule that a conservato­r may act independen­tly of the family and is only required to report to the judge, Cliff, Mary and Emily Darnell learned that Millet had received a $1.54 million offer on the property from a man named Jay Rembe. Mary, who has had her real estate license for 20 years, felt that price was way too low. Through her attorney, Mary let the judge know of her profession­al opinion and that there was someone ready to offer much more for the ranch.

On April 8, 2013, a sworn affidavit was filed with the court informing the judge that the Darnells’ longtime neighbor, Denny Gentry, was prepared to offer $1.7 million for the 15-acre plot held in Casey Darnell’s “A” Trust. Gentry told the court he had expressed an interest in buying the property years earlier and that Blair Darnell had “indicated that when the property was listed, we would have first right of refusal against any offer.”

On April 10, Mary Darnell asked the court to hold a hearing on the matter. The next day, she filed an emergency motion to force the conservato­r to reveal documents related to his proposed sale.

On May 13, Judge Brickhouse held a closed hearing on conservato­r Millet’s motion for approval of sale. Also on this day, Cliff Darnell filed his opposition to the proposed plan.

On June 25, after a flurry of back-and-forth pleadings and affidavits, Judge Brickhouse approved the $1.54million offer from Rembe.

Despite that, there was no sale at this point. Because there is no transparen­cy in this process, there is no public informatio­n available to explain why a higher offer was not pursued. And there is no way to determine why both the $1.54 million offer and the $1.7 million proposal ultimately fell through.

‘Suspect’

On July 31, Mary Darnell, confused and concerned about the process, received an opinion from a real estate lawyer she consulted about the conservato­r’s fiduciary responsibi­lity to her family. In an email reviewed by the Journal, the Albuquerqu­e attorney wrote that after reviewing all the informatio­n Mary had sent, he considered the sale proposal Millett had submitted to the court to be “suspect,” and said Millet should have engaged a Realtor as an independen­t third party.

In his letter to Mary Darnell, John Lieuwen wrote, “It is blacklette­r law that a trustee owes a fiduciary duty to both the present income beneficiar­y (Blair Darnell) and the remainderm­en (the heirs). Even if the trustee’s primary charge is the current beneficiar­y, he cannot do anything which will compromise the remainderm­en’s interest.”

On Oct. 29, Mary, with the blessing of brother Cliff and sister Emily, filed a motion asking Judge Brickhouse to require Millet to produce financial informatio­n or, in the alternativ­e, to remove him as conservato­r/trustee.

The next day, before the judge could consider the motion, Millet closed on a deal to sell the Darnell ranch to Tom L. Stromei for the even lower price of $1.4million.

According to the purchase agreement, the sale included the entire ranch — all 17 acres, including Blair Darnell’s home and the two-acre parcel on which the home still sits. This, even though the twoacre parcel and home were protected separately in the family’s “B” Trust.

Included in the cash deal was a life estate deed allowing Blair to remain in her home on a fenced-in, one-acre parcel until she died. Upon her death, the home and land would automatica­lly pass to Stromei.

The three youngest Darnell children call it “a suspect, sweetheart deal,” but they were powerless to stop it.

When contacted by the Journal, Stromei said he knew nothing about the back story of the land. “The property was put on the market by a real estate broker, and I purchased the property, and that’s the end of it,” he said. Stromei said he had never had any other dealings with conservato­r Millet, and as the conversati­on abruptly ended, he added, “I don’t appreciate the accusation­s those people make around here.”

At the beginning of the Darnell saga, Kris DarnellKre­ger’s attorney, Greg MacKenzie, provided a verified petition to the court saying the Darnell land was worth some $300,000 an acre. That’s about $5.1 million.

Five years later, in an improved real estate market, the conservato­r sold it for approximat­ely $82,000 an acre at the $1.4 million price.

In the summer of 2015, Bernalillo County records show, Stromei resold the land to the New Mexico Game and Fish Department for $2.8million. That price calculates to about $165,000 an acre, double the price Stromei paid. Transcript­s of the Sept. 29, 2015, New Mexico State Game Commission meeting reveal that Stromei, the new owner of the Darnell ranch, originally listed the property for sale at $3.5 million and the commission­ers were delighted to have gotten it for the lower price of $2.8 million.

The record describes the

ranch this way: “The property represents one of the largest underdevel­oped parcels of land fronting the Rio Grande River in this area. It provides prime access to the river and Albuquerqu­e’s Cottonwood Bosque, supports multiple species of migratory waterfowl including many duck species, Canada geese, and sandhill crane.”

‘All by design’

The three youngest Darnell heirs, worried that the real estate deal could come back to have major tax repercussi­ons for them, refused to sign a final settlement agreement because conservato­r Millet insisted he be granted protection — a waiver of liability against future legal action — before closing out the estate and disbursing the inheritanc­e.

Family members believe that demanding heirs to sign such a document under adversaria­l circumstan­ces calls into play a state statute that says, in part, “A release by a beneficiar­y of a trustee from liability for breach of trust is invalid to the extent: (1) it was induced by improper conduct of the trustee.”

Mary’s lawyer wrote to her in April 2016 urging her to stop her repeated requests for a full accounting of her mother’s finances and questionin­g the conservato­r’s actions.

“Millet and all the other lawyers made this a complex litigation case that has many layers. All by design,” Patrick Westerfiel­d wrote. “I do strongly recommend that you do agree to settle and move on.”

Millet and other lawyers involved in guardiansh­ip matters say they cannot speak about individual cases, but that they are profession­als dedicated to protecting the wards.

The three youngest Darnell siblings decided to fight on. They sought out a veteran certified public accountant with three decades of experience in estate and trust work to pore over the incomplete financial ledgers Millet had provided.

In a sworn statement, he declared to Judge Brickhouse, “The documents submitted by Mr. Millet, if they are to be a financial accounting, are inaccurate and substantiv­ely deficient … nothing more than the printout of a check register.”

Cliff, Emily and Mary continued to insist that the court order a full accounting. Then they learned how much that would cost them.

At the end of June 2016, Albuquerqu­e’s Modrall law firm filed court papers on behalf of Millet to terminate his duties, approve all actions he had taken as Blair Darnell’s conservato­r and trustee and to release him from any liability.

The motion also asked Judge Brickhouse to approve setting aside $100,000 for final attorney’s fees and to pay for the requested accounting. That last request rankled Cliff, Emily and Mary, who said they believe a conservato­r’s duties should have included keeping a good accounting all along.

Cliff complains not about any one person but the system.

“If you have no transparen­cy, you can’t expect judges and lawyers to self-regulate,” he said. “With their hourly wage, there’s no incentive to get it done. It is wrong that (the system) is not transparen­t.”

Not wanting to have to set aside an additional $100,000 of their inheritanc­e, Cliff, Emily and Mary had what one described as a “come-toJesus meeting.” As the first anniversar­y of their mother’s death neared, they realized the longer they fought the more money they would lose.

They decided to hold their noses and sign a final settlement in which they agreed not to take future legal action against conservato­r Millet. In return, the Modrall firm’s request to withhold $100,000 was dropped.

District Judge Shannon Bacon, in an interview with the Journal, discussed the court’s inability to audit the appointed conservato­r’s annual reports. She said it is essentiall­y an honor system between the judge and the appointed representa­tives and said eight of 10 judges in Albuquerqu­e who hear guardiansh­ip cases each have more than a total of 1,000 cases on their dockets.

“New Mexico doesn’t have three cents to rub together,” Judge Bacon said. “Every year we ask the Legislatur­e for more money, and every year we don’t get it.”

Guardians and conservato­rs are not licensed in New Mexico, although they may have acquired various certificat­ions. Some of those certificat­es can be purchased online after taking a short exam.

Nancy Oriola, CEO of the elder care firm Decades LLC, which handled some of the Darnell case, said she is a proponent of licensure for guardians ad litem and court visitors. She said she is one of fewer than 100 profession­als in the United States who are certified as Master Guardians.

Mostly gone

Court documents reviewed by the Journal show that when Decades was appointed as the first guardian/conservato­r for Blair Darnell, the firm initially valued her estate at between $4 million and $5 million. Recently obtained financial statements indicate the remaining balance is now less than $750,000, to be split four ways.

On Sept. 30, Judge Brickhouse signed the agreement officially terminatin­g the guardiansh­ip and conservato­rship of Blair Darnell. It had been nearly six years of court involvemen­t with the Darnell family and about 11 months since Blair Darnell’s death.

“I want it to be over,” Emily told the Journal. “I want to get on with our lives … (but) they have a way of perpetuati­ng things,” she said. “How do you fight this if you are a normal human being? What do they want? They already got (Mother). They took her final years … and almost all her money. Aren’t there some checks and balances that say enough is enough?”

 ??  ??
 ?? DEAN HANSON/JOURNAL ?? After Blair Darnell’s death, many of her treasured items in her home were moved to a barn in Corrales, where an estate sale was held just last month.
DEAN HANSON/JOURNAL After Blair Darnell’s death, many of her treasured items in her home were moved to a barn in Corrales, where an estate sale was held just last month.
 ?? DEAN HANSON/JOURNAL ?? The Darnell property was sold to a buyer in the fall of 2013 in what the family said was a “sweetheart” deal. The buyer sold it in April 2015 to the New Mexico Game and Fish Department for double the price.
DEAN HANSON/JOURNAL The Darnell property was sold to a buyer in the fall of 2013 in what the family said was a “sweetheart” deal. The buyer sold it in April 2015 to the New Mexico Game and Fish Department for double the price.
 ?? COURTESY OF THE DARNELL FAMILY ?? Mary Darnell with her partner, Dick Churchill, and their son, Casey. Mary was the primary caregiver for her mother, Blair Darnell, until her mother was placed under state guardiansh­ip.
COURTESY OF THE DARNELL FAMILY Mary Darnell with her partner, Dick Churchill, and their son, Casey. Mary was the primary caregiver for her mother, Blair Darnell, until her mother was placed under state guardiansh­ip.
 ?? COURTESY OF THE DARNELL FAMILY ?? Blair Darnell holds her grandson, Casey, who Darnell’s only child. is Mary
COURTESY OF THE DARNELL FAMILY Blair Darnell holds her grandson, Casey, who Darnell’s only child. is Mary

Newspapers in English

Newspapers from United States