Guardianship Redux

The plight of Dorris and Rio Hamilton has adult guardianship on my mind again.

I hope Rio and his lawyer provide all the information the court has requested, to stop the huge drain on family emotions and finances. I hope the lawyers and professional “guardians” let that happen.

Mrs. Hamilton needs supervision. That’s a sad fact after her impressive career as an educator. Her son Rio returned home from New York to take over providing that supervision. He seems capable of it, he wants to do it, and she wants him to. The court-appointed “guardian ad litem,” David Lutz, told the court he thought Rio should be helping his mother. She’d remain in a congregate-living facility and have a financial advisor, but Rio could make decisions for her or with her, take her to medical appointments, etc.

There’s also a “lawyer for Mrs. Hamilton,” Caralyn Banks. Mrs. Hamilton doesn’t want her. Nor does Rio. Casual observers wonder what Banks adds that Lutz can’t. The fact that Banks has passionately advocated that Advocate Services be the well-compensated guardian for adults in many cases (but denies that she’s ever represented AS as its lawyer) might suggest finding someone more neutral – if there must be two attorneys for Mrs. Hamilton and one for Mr. Hamilton collecting fees for each hearing.

Providing guardians for cognitively-challenged (usually elderly) folks without family or friends, or with family that’s distant, dishonest, or incapable of care-taking, is an important service. Agencies such as AS do that. (I hope they do so when the “person in need of protection” is poor, too.) Courts naturally appreciate that. But courts should recall that when family-members want to take care of Aunt Sally, the folks collecting hourly fees for helping her are not impartial observers but highly interested parties. There’s an inherent conflict of interest: as paid guardian, I want the best for my ward, but I like getting paid.

Some agencies, having stepped in during a crisis to help, are reasonably graceful in releasing control to a capable family. Others all too often get into pitched battles. From what I’ve seen (and heard from others) the folks at Advocate Services can be particularly abrasive. In the case I’m most familiar with, the professionals testified that the stepson seeking custody had come to a meeting with food on his tie and that his wife (who denied this) had said he was losing cognitive abilities himself.

A family-member who rushes home to take care of someone may be upset, even angry -- then may face blame for not having intervened earlier. Disagreements are inevitable. Professional guardians often paint those as attacks on the court’s decisions.

So why do judges sometimes seem to take the word of guardians as gospel? Why isn’t keeping families together a higher priority? Why isn’t it a high priority to stop the financial bleeding? Why don’t lawyers, collecting fees from a helpless person who doesn’t want them intervening in the first place, try to economize, so that the protected person doesn’t incur unnecessary legal fees? Too often I hear remarks that our judges are paid off by lawyers or guardianship agencies. I strongly disagree with that conclusion, though I understand the frustration.

Adult guardianship (and abuses thereof) is a national problem. New Mexico recently started trying to make the process fairer and more open. Sadly, that job is far from finished. And none of us is getting noticeably younger.

                                                    – 30 – 

 

[The above column appeared this morning, Sunday, 16 August, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG's website.  A related radio commentary will air during the week on both KRWG and KTAL-LP, Las Cruces Community Radio [ 101.5 FM) and will be available on demand at KRWG's site.]

 

[I sure wish Dorris and Rio the best, as do many in the community. One step we can all take, and should, is to write and sign a plan that states whom we'd like a court to appoint if we are ever found incompetent.  A judge also makes that suggestion in this video on a Nevada case. Rick and Terry Black ( the son-ion-law and daughter in the Nevada case) now work full time trying to help fight guardianship abuse around the country.  I met them through Rio, and Rick was a guest on my radio show a few weeks ago.  email   info@CEARjustice.org  for information. ]

 [One suggestion Rick made during our radio discussion our radio discussion, which I've seen elsewhere, is to provide for jury trials in contested guardianship cases.  Traditionally, we kept such cases highly secret, to protect the "person in need of protection" from having everyone know s/he was losing it.  A worthy goal; but experience showed that ruthless guardianship companies, lawyers, and perhaps even judges around the country abused that secrecy by using it to cloak misconduct.  New Mexico opened the process; but might we do even better to go the whole hog, and put these matters into jurors' hands?  The traditional argument, as for all jury trials, is that open court is more ethical court, and that jurors, even when they may not understand all the technical or legal jargon, have great instincts about people, and usually get it right.   The counter-arguments would be that it more openly washes a family's dirty laundry in public, could be traumatic for the person in need of protection, and could lead to having the most superficially persuasive lawyer -- not necessarily the most deserving side -- prevail.  I should probably note that I worked on worked on a case in which Advocate Services attempted to maintain control of someone, arguing that moving her to California as her stepson and she desired would not be in her best interest, and have written on the subject previously in "Why New Mexico Is Improving Its Guardianship Laws," "Someday You'll Be a Person in Need of Protection,"  and "Further Thoughts on Guardianship Issues."]    

[There's a hearing set for 11 a.m. Thursday, 20 August, in New Mexico 3rd Judicial District Court.]