Why New Mexico Is Improving Guardianship Laws - a Case History

A new AARP Magazine article reminded me of the day I said farewell to a delightful, courageous Japanese lady named Kise. 

A year earlier, her stepson approached me in the market and asked me to help free his Japanese stepmother. She was “like a second mother.” When he first went to Japan at 14, she not only welcomed him but effected a reconciliation with his father. 

She'd moved to the U.S. with her husband, who died in 1993. She loved her garden and her cat, but she was aging, and her stepson lived in California. They'd discussed her moving there when living alone got too hard. He'd arranged home-help for her here, but she fired the help.

It was a shock when a neighbor called: authorities had put her somewhere -- for her own safety.

He and his wife came to Las Cruces. They wanted to take her to California. They couldn't. The guardians and their lawyer vilified him.

I helped them awhile, as a lawyer, then referred them to a firm. 

As a columnist, I've learned from other sources of heartbreaking abuses of New Mexico's guardianship laws. I was even advised that “clients” were in the charge of a woman who had been fired, allegedly for questionable treatment of clients. (An October 2017 New Yorker article detailed abuses of Nevada's law, which was especially favorable to guardians taking over people's lives, even where family was willing and able to help.) 

New Mexico's Supreme Court created a commission to look into abuses and make recommendations. The Commission heard many horror stories. It recommended that when someone is in danger of being committed, family must be notified and given a voice. It also recommended making hearings public. While we'd like to keep such proceedings confidential to protect the person involved, confidentiality allows guardians to abuse their power. (In Nevada, there were numerous cases of an agency taking over a person's life, collecting handsome sums from the person's bank account, and refusing families' efforts to help – or even visit.) Sometimes, though, guardians do wonderful and essential work. 

In January 2017, Judge James T. Martin ordered the guardians to try to help Kise move to California. They made excuses. (They'd made clear to me that they had no intention of moving her.) They kept her living with people far less functional than she; and their willfulness cost her and her stepson lots of money. (During one visit, a lady who was intently watching a TV show for young children kept confusing Kise and me with characters in the show. Kise whispered, “You don't get smarter in here.”)

In February 2018 the Judge ordered them to comply with his 2017 order. 

We celebrated with lunch at Aqua Reef. We were so relieved that Kise could finally move to a facility near her stepson's home, join them for meals, and go to their house to garden. She called them “a godsend.” 

I wished I had a videotape of our conversation to show her “guardians.” What was remarkable about our good-bye lunch was that it wasn't remarkable. Kise was charming and quick-witted. Her stepson and his wife treated her with the love and respect she deserved.

As I hugged everyone, I realized how moved I felt.

It seemed incredible that for over a year her guardian and court-appointed lawyer (perhaps well-intentioned), had charged Kise big bucks to keep her locked up and away from her family.

                                                          -30-

[The above column appeared this morning, Sunday, 7 October 2018, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG's website (New Mexico's Guardianship System Raises Serious Questions).  A spoken version will air during the week on KRWG and on KTAL, 101.5 FM (streamable at www.lccommunityradio.org,]        

[I can't say much more about Kise's case, except that when I've had a chance to talk with her and her stepson, things sound so much better than when she was here.  Nothing against the facility in which she was kept, where the people who worked with her seemed to genuinely like her and be liked by her.  The key problem is that operating in relative darkness, guardians have pretty absolute power over their charges, particularly since in any disagreement a competent-appearing professional has a pretty significant credibility edge on a person who is or may be approaching dementia.  And we know what Lord Acton said about absolute power corrupting absolutely.  Perhaps it's a wonder that some -- perhaps the majority of -- guardians are honest and caring and thoughtful.]

[In California, Kise read this column and appreciated it.  She commented that "you don't normally read something in the newspaper so truthful."  Thursday is her birthday -- she'll be 87 -- and I'll be thinking of her.]

[Again, I do not mean by this column to indict an industry.  Or anyone.  I mean to join the chorus warning that there are dangers here.  Kise did need some kind of intervention.  But the guardians, in my opinion, dug in too deeply when faced with a loving family.  Her stepson became the Enemy, and battling him seemed to become their mission.  I'm told that under the new rules, they would have been required to serve him with papers right from the start, which would have helped here.]

[By the way, although stories have also appeared in the Albuquerque Journal, the AARP Magazine piece (by Kenneth Miller), which sparked my publication of this column, is in the October/November issue and is entitled "AARP Investigates: A Legal Hostage" and subtitled, "A court-ordered guardianship nearly shattered the life of Kise Davis in a trend that now too often leads to isolation and exploitation of older Americans."  (I'd written the column months ago, but not thought it appropriate to publish it while the case was in the courts and before the information in it had become public.)]

Larry and Kise -- from the AARP article