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Reform could give families role in process
Albuquerque Journal - 1/15/2018
From across the country, Karla Holomon got the phone call that families dread — her older half-sister Cheryl had been hospitalized at a mental health facility in Albuquerque with a diagnosis of depression and dementia.
Now Cheryl has been placed in a court-appointed guardianship in New Mexico and may be moved away from her only friend, who lives in Santa Fe, by the professional guardianship firm.
And without action from the Legislature this year, there’s no guarantee that Holomon, who lives in North Carolina, will be allowed access to financial and other documents to ensure that her sister’s care is adequate and that her sister’s savings are being spent wisely.
So far, Holomon told the Journal, her experience with New Mexico’s guardianship system has been rocky.
First, a social worker from Albuquerque called in December to insist that Holomon agree to petition the state district court to place Cheryl under a legal guardianship — the cost of which, the social worker said, would be paid from her sister’s assets.
In a letter to District Judge Alan Malott, who is presiding over the case, Holomon said she initially agreed to be the petitioner.
But in a follow-up conference call, her letter stated, an Albuquerque attorney involved in the matter wanted her to sign a fee agreement to retain the lawyer’s firm to handle the guardianship. Holomon said the attorney said the price tag for an uncontested guardianship case was $8,000.
When Holomon said she would sign an agreement with a $10,000 cap, the lawyer replied that was not acceptable, the letter stated.
According to the letter, Holomon, a retired corporate attorney, told the lawyer and other parties on the call that she felt she was being coerced to sign an open-ended fee agreement with a law firm she had no knowledge of — at which point Holomon said the Albuquerque lawyer ended the phone call.
The attorney, Marcy Baysinger, told the Journal on Friday she was aware of the letter to the judge.
“I can tell you that I did not coerce her (Holomon) into doing anything. We were having a general discussion about a potential engagement in an attorney-client fashion,” Baysinger said. “There’s not a lot more I can tell you because of the nature of guardian-ships and confidentiality.”
Baysinger was listed as the attorney for Central Desert Behavioral Health Center, of Albuquerque, which filed as the petitioner in Cheryl’s guardianship on Dec. 12, a court docket sheet shows. Asked who paid her costs, Baysinger told the Journal, “I can’t tell you that.”
Cheryl has since been moved to another facility after falling and breaking her hip at Central Desert, Holomon said in her letter.
Holomon said she was so troubled by the episode that she wrote to Malott and asked that her letter be included in the case file.
“I was told by an acquaintance that I need to be concerned about New Mexico guardianships,” states her letter, a copy of which she sent to the Journal. “Of course, she (her acquaintance) offered no particulars as to precisely what I need to be concerned about.”
Financial reports closed to family
Holomon, like other relatives of people placed under court-ordered guardianship or conservatorship with private firms, told the Journal of the emotions she faced upon learning her relative was in need and in the custody of strangers.
She wrote in her letter that she has tried to help her older sister many times over the years, and regrets that currently “I am neither physically nor emotionally able to care for Cheryl.”
“All I want is what any family would want, and that is fairness and transparency,” Holomon told the Journal last week.
Holomon asked Malott to provide her copies of the financial statements filed in the case that would show how her sister’s assets, estimated at about $100,000, are being spent by the professional guardian firm, the petitioner’s attorney, and other parties.
But under current New Mexico guardianship laws, only the judge is entitled to financial reports, which are required annually.
That could change if the Legislature enacts a new model uniform guardianship law that, among numerous reforms, gives family members the right to review financial and guardianship reports. Currently such records are considered confidential.
State Sen. James White, R-Albuquerque, is sponsoring a 187-page version of the reform act, which was the product of two years of study by national experts.
Santa Fe attorney Jack Burton, a member of the Chicago-based Uniform Law Commission that drafted the model law, told the Journal last week that Gov. Susana Martinez needs to give the green light before the Legislature can consider an overhaul of the law.
The 30-day legislative session, which generally focuses on budgetary issues, begins Tuesday.
Under the uniform law, Burton said, family members are “absolutely” entitled to reports filed with the court by guardians and conservators.
“I don’t know exactly how New Mexico got off on the wrong track (in crafting its guardianship laws) but it certainly did,” said Burton. He said he expects a “companion” bill to be introduced to provide money for the state’s courts to hire people to monitor and audit guardians and conservators.
State Sen. Jerry Ortiz y Pino, D-Albuquerque, served on the state Supreme Court guardianship commission that recently studied ways to improve New Mexico’s system.
“From the testimony we received, there was the strong belief that families are too frequently excluded from a meaningful role in this process,”Ortiz y Pino told the legislative health and human services commission in November.
The Supreme Court commission released its recommendations to the Supreme Court on Jan. 1 and endorsed the Uniform Act, with several minor amendments.
When such cases get into the court system, Ortiz y Pino said, “it’s almost like people feel like if you go to court then the family is ruled out, their input is discounted, they’re not solicited for suggestions and they’re not kept informed.”
Cheryl has been employed at various times as a legal secretary and a manager of a Santa Fe resort but has no other living relative with whom she has maintained contact, Holomon’s letter stated.
“At this point in my life, I am not capable of dealing with Cheryl’s current situation without support from other family members. Unfortunately, there are none. While I do not have the affection and regard for Cheryl that one would hope to have for a sibling, I do care what happens to her.”
Holomon said she understands the state “must be compensated for the manpower and services that it has dedicated to establishing and maintaining this guardianship” and is “very grateful” for the care and assistance already provided to Cheryl.
Holomon said she initially agreed to be the petitioner after being informed by a social worker that filing as the petitioner would cost her “nothing, with funds coming from Cheryl’s assets.”
New Mexico law states, “If not otherwise compensated for services rendered, any visitor, attorney, physician, conservator or special conservator appointed in a protective proceeding is entitled to reasonable compensation from the estate.”
Cheryl has an investment account, a bank account, social security, and long-term care insurance, Holomon said in her letter.
She told Malott that the subsequent conversation with Bay-singer “was very troubling on a number of levels.”
Also troubling her is whether her sister will be moved to Las Cruces, where the court-appointed guardian, CNRAG Inc. is headquartered, she said in the letter.
“I am concerned that it is so remote, and particularly that Cheryl will not be able to have visits from ... her one close friend, who resides in Santa Fe.”
Holomon, in her letter, told the judge she took care of their mother, who had Alzheimer’s, until her death.
“I know what lies ahead for Cheryl,” she added.