Editorial: NM has made strides to contain bad conservatory actors, but new cases show there is so much more to be done

Three weeks after the court approved an emergency application, Dorris Hamilton’s bank account and legal affairs were immediately turned over to a corporate guardian, the police appeared at her Las Cruces home to be taken to the hospital for examination and ultimately to a nursing home – turn life as she knew it upside down.

It is not surprising to those familiar with 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 different ideas than what officials said in August 2019 their door knocked. Hamilton, now 93, told police, “If a judge has ruled that I am unable to live alone … and I haven’t had a hearing, I want to speak to the judge.”

Her son, Rio Hamilton, says Dorris was allowed to drive her car (later driven away and sold by her restorer) to the courthouse, where she waited on a bench for 20 minutes to see the judge on her case.

It’s another case of families being excluded from the emergency care process when someone files a petition. As reported by the journal, which goes 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 curators take control of their lives. All of this at a substantial cost to the protected person’s estate. Rio Hamilton estimates the costs in the ongoing proceedings at well over 100,000 US dollars. This does not include his own legal fees.

There are flash holes in the system that need to be repaired.

According to court records, there was no hearing on the urgent motion, which would have allowed all parties, including her son, to weigh up before the judge made his decision. In fact, the petition filed by a Las Cruces attorney listed Rio Hamilton as the petitioner while he claimed (without a medical examination) that Dorris had vascular dementia. Hamilton denies applying for guardianship, saying he only took his mother to see a lawyer to obtain a power of attorney after a bank denied his application because his driver’s license had expired.

In May – almost two years later – he finally managed to be appointed guardian of his mother, but a court-approved restorer is still responsible for her nest egg. Or rather, what’s left over after court-appointed institutions and lawyers have billed.

Hamilton persevered. He can see his mother and go on excursions with her, which she is happy about. But the case is not closed. At some point, he said, his mother would like to move to a different facility or even back to her house – which the restorer would have sold if Rio’s name wasn’t on the certificate.

But relatives and their families need additional protection.

Supreme Court Justice Shannon Bacon told health and welfare lawmakers in August that New Mexico’s guardianship reform is still ongoing.

“We need to change the emergency guardianship process … which allows someone to claim on a very simple petition that a guardian must be appointed immediately,” with a promise to come back later with detailed evidence, she told the panel.

Bacon acknowledged that emergency applications were sometimes required. “Mom is in a nursing home and her son got her debit card and is withdrawing money as soon as possible,” Bacon told lawmakers. “So let’s put an end to this with an emergency aid petition. That is fair use. “

However, Bacon said the courts are also seeing attorneys filing an emergency guardianship lawsuit with promises to obey evidence. She told lawmakers that in some cases the judge will “get the can off the ground” and fail to provide the necessary evidence in a timely manner through clear and convincing evidence that the person needs guardianship or care.

Legislators could make a significant improvement by adopting provisions of the Uniform Guardianship Act drafted by the National Conference of Commissioners on Uniform State Law in 2017.

The model law not only stipulates that the person who is to be placed in emergency care immediately appoints a lawyer, but also that a hearing takes place within five days as to whether such a drastic measure is justified. That would have given Dorris Hamilton an attorney and perhaps the opportunity to speak face-to-face with the judge, as she had tried when she was taken from her house – supposedly for her own good.

So yes, New Mexico has made important strides in reforming the process. Petitions requesting guardians and conservatories are publicly known. There is a complaint procedure. A monitoring system is set up. But the story of Dorris Hamilton and others like you shows that more steps need to be taken to ensure that emergency custody that turns a person’s life upside down is absolutely necessary and that no less restrictive measures will suffice.

In the words of former Pro-Tem President Mary Kay Papen, D-Las Cruces, who has known Dorris Hamilton for years, “I find it pretty scary as we get older that you can go in and do this when you did have children. … that they can take you with them. … I find that very frightening. “

As a matter of fact. It should scare us all. Including New Mexico lawmakers who have to implement additional reforms that, in the words of Justice Bacon, “would really make the emergency process an emergency and put in extra security so that it cannot be misused by anyone”.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than that of the authors.