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Name Jeff Dye, Pt·esident & CEO, NMHA
Date July 12, 2017
Phone 505-343-0010
Email [email protected]
Enter Comment
Comment attached
ClEDVIE
JUL 1 2 2017
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To:
From:
Date:
Subject:
New Mexico Hospita l Assodation
New Mexico Supreme Court Adult Guardianship Study Commission
New Mexico Hospital Association
July 12, 2017
Recommendations for Improving Guardianship Capacity
On behalf of the New Mexico Hospital Association and our members who care for patients in psychiatric beds, please accept our recommendations to the New Mexico Supreme Court's Adult Guardianship Study Commission for strengthening New Mexico's Guardianship capacity.
The New Mexico Hospital Association operates an internal Behavioral Health Task Force (BHTF). Comprised of interested hospital members, the Task Force focuses on identifying and resolving behavioral health issues affecting hospitals. In our recently board-approved Strategic Plan, one of the five activities before the BHTF is to "reduce delays in accessing Guardians."
The experience of Gerald Champion Regional Medical Center in Otero County, submitted separately and again in our comments, is not isolated. Several of our member hospitals report similar challenges. CHRISTUS St. Vincent Hospital recently reported holding a patient for several months until a Guardian could be appointed to oversee and make care decisions on the individual's behalf.
Holding patients for days, weeks, or months past their discharge readiness day creates a burden on the individual and the hospital. For the individual, the extended stay denies them access to a more appropriate care setting and a more appropriate therapeutic environment. For the hospital, holding the patient results in that bed not being available for individuals who truly need it. New Mexico struggles with a significant shortage of psychiatric beds; people are transported across the state In search of an open bed, and often wait for days in an Emergency Department waiting for a bed to become available anywhere in the state. Individuals awaiting discharge due to Guardianship delays further exacerbates the problem. While our foremost focus Is on the health of patients, the financial implications of such delays in Guardianship appointment on patients and hospitals cannot be ignored.
Based on discussions of NMHA's BHTF and internal analyses, we offer the following recommendations to the New Mexico Supreme Court's Adult Guardianship Study Commission:
1. We support the creation of a "limited financial conservator" with court authority to investigate and research a patient's financial affairs. Such conservators would not have the power to act on or access the patient's assets. This "limited conservator" would then be able to converse with the appropriate personnel-hospital. financial institutions, and nursing facility- to assist in arranging for placement pending a hearing on the conservatorship. This could significantly
.,
~~-fiiYJhrQlOll ~ 1\U L_~_iUI NewMexico ~ f Hospital Association L..a....-----reduce-ihEM:lnne~sary hospital days in the locked psychiatric unit with the attendant and
significant economic hardship for hospitals; reduce the stress and deterioration of patients' health-both mental and physical; and create greater access to care for the large number of mental health patients who need mental health services.
2. We recommend that the Commission examine whether Medicaid dollars may be used to offset legal expenses. Identifying a permanent, reliable and dedicated funding source for use in the Guardianship I Conservator process should also be a critical component in any comprehensive reform plan. The legal costs, Including the temporary guardian fees, hospitals incur related to petitioning for guardianships and conservatorships for so many of their patients is burdensome at best. Medicaid matching dollars may be employed for temporary guardian fees when the beneficiary qualifies for Medicaid.
3. We recommend that all guardians and conservators be certified. Guardians funded by the Office of Guardianship are required to be certified, but not others. A consistent certification process would help ensure that guardians are educated and well-informed about their duties and responsibilities to the protected person and the court. While we understand that some professional guardians and conservators are not certified, these are people who have many years of associated training, education and experience. For others-such as family members or friends-it often seems to be a daunting and overwhelming experience. Such training could be provided before or after appointment.
Thank you for your consideration. To discuss any of our recommendations further, please contact our Director of Policy, Beth Landon, at [email protected] or 505-343-0010.
Sincerely,
Jeff Dye President & CEO
l))~©ffi:O\f.!E ~ rl JUL 1 4 2017
~
Good Morning! Madam Chair, Commission Me1nbers,
My name is Lorraine Mendiola and I have an adult son who has a mental illness.
One of the items on today's agenda states that some commissioners would like to hear about the guardianship's effect on the mentally ill.
Well, that's precisely the reason I've submitted fou;r testimonies and am here in person to provide the fifth testimony.
If you've read all my testimonies you have a very clear picture of my son's horrific experiences the last 6 years under a Corporate Guardianship. He's been physically assaulted(HIT IN THE FACE & HEAD AREA 4 TIMES) with no medical treatment provided by the Guardian after the assault, lived in a ))ed-bug infestation, smoked marijuna(15 +residents with vecy little supervision), and offered heroin.
At a home in Albuq. he lived in an illegal, incomplete garage conversion. I have documentation from the Albuq. Bldg. Code Dept. that states that the owner never applied for a permit therefore, the stn~cture was uninhabitable. By the way, the owner failed to appear in Metro Court on two separate occassions and has a warrant for his arrest.
It's obvious that this Guardian/Conservator does not inspect boarding homes before placing a client.
He has been incarcerated twice and been hospitalized many, many times at the state hospital in Las Vegas, Anna Kaseman in Albuq., and Christus St. Vincent in Santa Fe.
Each time he's merely stabilized, discharged, returned to the community and placed by his Guardian in another boarding home with horrific living conditions!
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~ · . .:. .One thing-he Iia·s. not eA')lerienced; however, is the opportunity and right to learn how to deal with his mental illness and anger - . . . .
through individual therapy. His Corporate Guardian bas failed in their fiduciary duty to provide such crucial and necessary assistance for the last 6 years.
Before the Court appointed this Guardian/ConseiVator my son was attending all monthly pyschiattic and medical appointInents at a local facility, and taldng classes at the local community college.
The system has failed him at evecy level-the legal system through incarceration, the judicial systemaby not listening to my testimony with documentation provided against the Corporate Guardian, and the DDPC-OOG by violating their own rules and regulations policy by not investigating my allegations against this Corporate Guardian.
What do I want this commission to do? I'm requesting that this commission recommend the following actions in your report to the Supreme Court justices:
1. Create a designated authority to investigate allegations against a corporate guardian or family guardian with the power to enforce criminal penalties. Another idea could be to have this designated authority assist the AG's Office with investigations since the AG ·s Office already has the power to enforce. If the AG and his office need further statutes to provide more enforcement, then propose a new statute. DO WHATEVER IT TAKES TO PROTECT THE INCAPACITATED INDIVIDUAL!
2. Follow the existing laws that are in place such as the recent decision to make the "incapacitated individual's" name and docket information available to the public.
3. Create new laws that ensure that ~~incapacitated individuals" are protected against negligence, fraud, abuse of any kind, and embezzlement by a Corporate Guardian,trustee, GALs, Visitors, attorneys, judges, (anyone involved in the guardianship system) with CRIMINAL CHARGES attached if viola~ tions occur. EVERYONE INVOLVED IN THE GUARDIANSHIP PROCESS MUST BE HELD ACCOUNTABLE!
4. Training for District Judges related to guardianship and mental health issues with emphasis on "listening to family members" who present concerns with documentation against the corporate guardian.
The judge's job is to listen to both sides, peruse the provided documentation~ and at a later date give the final unbiased deter .. mination. Hearings are rushed and the guardian's testimony always has the power over the petitioning family member.
At one hearing the judge told me to stop talking and to sit down. Her behavior and attitude were unnecessary, unacceptable~ and very unprofessional!
In conclusion I want you to consider the following questions:
1. Would YOU want a loved one or good friend to experience the devastating events my son has with no recourse to resolve the injustices?
2. Would YOU want to experience these events time after time with no assistance from any state source?
If this commission and the Supreme Court Justices are sincerely interested in changing the guardianship system in New Mexico the "incapacitated individual's" health~ safety~ and welfare must be the top priority!
The state of New Mexico MUST respect and protect its most vulnerable citizens I Anything less is unacceptable I
Thank you.
Name Robert de Sigello
Date 8/112017
Phone 505 277 Olll
Email [email protected]·g
Enter Comment See attached PDF
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@ 2007 Ne\V Mexico COUILS
Guardianship Study Commission Message #14 by Robert deSigello on July 27. 2017
Dear Guardianship Study Commission Members, News Media Professionals, and others:
Today starts a new series of weekly posts, covering statistical analysis ofNew Mexico's courts' administration of the guardianship cases that come before their judges.
While this post is long, we guarantee it will "blow your mind" while shining (smne) light on the secretive process of guardianship, as well as expose how District Courts are 'disappearing' certain guardianship cases from every type of record-keeping - including budgets and annual reports- that might allow the public to monitor the courts, much less provide accurate financial reporting, legal case management, or allow the Legis lature and/or the Govemor's office to conduct meaningful oversight.
Overview: Since we are members of the public, we only have access to guardianship and conservatorship information the AOC (Administrative Office of the Comts) first made available to the public on May 29, 2017, even though statutes and rul.es have existed for years that allowed the pubJjc access to certain information about guardianship and conservatorship cases.
On May 29, 2017, the AOC instJucted its IT division to belatedly begin to confom1 to New Mexico statutes (NMSA45-5-303 CD; NMSA45-5-407(M)) and Rules ofCourt Procedure (NMRA 1-079CD) .Q.1.(2J; NMRA 12- 314CC)f9).CI2)).
For the fll'St time- at least only on-line, so far- the public is finally allowed to access the information that by Legislative Statutes and state Supreme Courts Rules should have been available to the public, without any restrictions, all along, including:
( I) docket entries; (2) date of the proceeding, appointment and termination;
ilij( ;'. -~-:J::jl_,:li -~l ~~; · I (3) dumtion 1f{il~ iguardianship; and ~~~~e : ame ~icJLo.ther information necessary to identify the alleged incapacitated person.
---~Q4olse.th~~i.t.Jthe free time we have to devote to pro bono research into the courts' accurate reporting on itself, we chose four District Courts divisions out ofNew Mexico's 13 Judicial Districts, to focus on:
1. Santa Fe - 1st Judicial District - Code ' 1 01'
2. Albuquerque- znd Judicial District - Code '202'
3. Las Cruses - 3rd Judicial District- Code '307'
4. Bernalillo- 13Lh Judicial District - Code ' 1329'
Trend Analysis of annual new guardianship cases: From the newly-available case docket entries, graphs were created showing the number of new guardiansbips created annually in each of the four District Courts from Jan l , 1998 to June 30, 2017, with the exception of the 3rd Judicial District, Las Cruses, Court Code 307, whose publicly available data begins Jan 1, 2000.
These charts do not reflect whether or not the guardianship or conservatorship was granted or denied, only the number of new cases filed annually in each district. (We will be discussing the rates ofjudges approving or denying petitions for guardianship in a future article, as that is an important metric that should already be tracked and made public by the AOC.)
140
120
100 82
80 68
-~ 60 58
1 40 I ~ '15 20 ""
0
93
New Mexico's 1•' Judicial District Courts 101 -Santa Fe District
128
New Guardianship cases created Jan 1, 1998 to June 30, 2017
111
67 59
iliiii iiiili 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017
Chart created by Wii/PowerNM.org 2017 cases through 6130/2017
f "2 ~ (J
:f i 'l5
*
400
350
New Mexico's 2"d Judicial District Courts
326
New Guardianship cases created Jan 1, 1998 to June 30, 2017
361 340 335 325
281 298
312 285 300
293 300 279
250
200
150
100
50
0
120
100
80
60
40
20
0
Z56 255 262
212 219 194 192
141
I 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017
Clwrt cmaled by W/1/PowerNM.org
70 73
51 47
I I
New Mexico's 3'd Judicial District Courts Las Cruses District
79
New Guardianship eases eteated Jan 1, 2000 to June 30, 2017
105
79 71
60 62 58
104
2017 cases throvg/P f]/3012017
100
82
50 52
I 41
I 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017
Cl1erl created by WiiiPowerNM.org 2017 cases //Prough 613012017
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i .i ~ "' ()
""
60
50
40
30
20
10
0
43
36
28 24
I
New Mexico's 13th Judicial District Courts 13~9 ·Bernalillo District
41
New Guardianship cases created Jan 1, 1998 to June 301 2017
57 55
4A 48
38 38 34
29 28 25
i 1 I i_l 11
I 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017
C/1arl cteatea /Jy Wii/PowerNM.org 201 7 cases throug/16130/2017
There are statistical anomalies within each graph that require explanation (presumably from the AOC, since the AOC is the state group in charge of, among many tasks, "Collecting and providing information on and for the courts.'') The anomalies to which we refer are different for each graph/District Court:
• Referring to the cha1t above: In the First Judicial District Court, Santa Fe, from 1998 to 2003, there is an increasing number of new guardianship cases created annually, peaking with 128 new cases created in 2002, then dropping precipitously 2003 to 2004 and basically staying relatively flat at about 40 new cases a year, on average, from 2004 to 20 17. Why is there a large change in the number of new guardianship oases created between 1998-2003, versus the much lower amounts 2005-20 17? ls this due to a change in Santa Fe County's population, or a change in the fi·equency of judges conscripting wards into guardianship?
It
• Referring to the chart above: In the Second Judicial District Court, Albuquerque, similar to the 1st Judicial District/Santa Fe, there has been a decline from peak years of 1998-2005, but it is less precipitous and more gradual, until 2013 to present, when the new guardianship cases are about 2/3rds of what they were 1998-2005. Again, why? Is this due to a change in population, change in judges frequency in ordering guardianship, or something else?
• Referring to the chatt above: In the Third Judicial District Court, Las Cruses, what happened in2008, 2012, and 2016 that caused such a dramatic, essentially l-year increase in the number of new guardianship cases created in those years?
• Refening to the chatt above: In the Thirteenth Judicial District Coul't, Bernalillo, greatly resembles its next-door neighbor, the 2nd Judicial District, in that higher number of guardianships in 2001 -2009 have given way to significantly lower numbers ofnew cases since 2010. Why?
Examining annual last-filing dates: The methodology used to acquire data in this analysis was simple and is based on New Mexico courts naming their cases following a consistent pattern. Each District Court starts off each new year, by naming cases according to convention, part of which is the current year, and then sequentially increasing numbers are assigned to each new, successive guardianship petition filed with the court.
AU ofNew Mexico's cow-ls use the "PQ" case-type code to report guardianship, conservatorship, and adult protective proceeding cases, as well as some child guardianship cases. Using the 2nd Judicial District as an example, the first guardianship case in 2015 would have a case num.ber assigned as "D-202-PQ-2015-00001." To completely explain this system, which all the courts in New Mexico use:
"D" stands for District Court; 40202" is the District Court's code, in this case the 2nd Judicial District Court in Albuquerque; "PQ" indicates that it is a guardianship case; "20 15" is the year the case was initiated; and ''0000 1" is the sequentially-assigned munber for that case.
Using a methodical approach, the last PQ case of each year, for each District court, can be derived. Plotting these dates of the last PQ case of each year, along with the total number of guardianship cases for that year, results in the following table:
Year pt - 101 211d- 202 yd_307 13th -1329
1998 12/10/1998 - 58 12/3011998- 279 12/16/1998 - 28
1999 12/02/1999 - 68 12/29/1999-293 12/29/1999-24
2000 12/2112000- 82 12/29/2000-300 12/29/2000 - 51 12/19/2000-36
2001 12/14/2001 - 93 12/28/2001 - 326 12/21/200 l - 47 12/14/2001 - 43
2002 12/18/2002- 128 12/31 /2002 - 281 12/30/2002 - 70 12/26/2002 - 4 I
2003 12/29/2003- 111 12/3112003-298 12/24/2003-73 12/30/2003-38
2004 .] 1/03/2004- 67 12/27/2004 - 340 12/28/2004 - 79 12/29/2004 - 38 ---
2005 12/28/2005-40 12/29/2005 - 361 12/19/2005 - 60 12/13/2005-57
2006 12/26/2006-53 12/28/2006-335 1 L/22/2006 - 62 12/27/2006-55
2007 12/26/2007 - 46 12/28/2007-312 12/14/2007 - 58 12/26/2007 - 29
2008 12/17/2008-40 12/31/2008 - 285 12/30/2008 - 1 05 12/17/2008 - 48
2009 12/10/2009-49 12/31/2009- 325 12/23/2009-79 12/31/2009 - 48
2010 12/03/2010 - 36 12/29/2010 - 256 12/29/20 10 -61 12/29/2010 - 28
2011 12/06/2011 -59 12/28/2011 - 255 12/28/2011 - 71 12/20/2011 - 34
2012 12/20/2012-39 12/26/2012-262 12112/20 12 - I 04 12/28/20 12 - 23
2013 11119/2013 - 28 12/27/2013 - 194 12/04/2013 - 50 12/30/2013 - 16
2014 12/19/2014-34 12/24/2014-212 12/23/2014-52 ] 2/30/2014- 21
Year pt -101 2"d- 202 3rd- 307 13th- 1329
2015 12/22/2015 - 25 12/3112015- 219 12/ L I /2015 - 82 I 0/23/20 15 - 18
2016 12/28/2016 - 41 12/09/2016 - 192 12/22/2016 - 100 12/23/2016- 25
The cells highlighted in yellow show years in which the date of tiling. of the last case of the year (i.e., the highest-numbered case that year) occurred at an abnon11ally early time~ on a date that is statistically unlikely.
• 1st Judicial District: [s it possible that the last case of2004 occurred as early as Nov 3rll? And in 2013 that the last case occurred a's early as Nov I9lh? Typically in the 1 sl Judicial District the last PQ case of the year was filed in December, usually in the last half of the month.
• 2nd Judicial District: It seems particularly odd that tbe last case of2016 would have been filed as early as December 9111, especially when every other year since 1998 there were enough incapacitated people requiring guardianship that the last case of the year was always filed in the last week of December - for all proceeding 17 years.
• 3rd Judicial District: 2006 is a stand-out year, with the last case of the year being filed on Nov 22°d, whereas all other years the last case was filed in December, usually during the week of December.
• 13111 Judicial District: 2015 is remarkable for its last guardianship case was filed as early as Oct 23, 2015.
So what types of subcategories of "PQ" cases is the public aware of? The subcategories of "PQ" cases, that the Administrative Qffice ofthe Courts (AOC) provides annual statistics to the state's Supreme Court Justices, who then publish these annually, include:
1. Probate Kinship Guardianship 2. Probate Protective Proceedings (no longer used as of July I, 2011 evidently) 3. Sequestered Probate, Conservatorship Adult 4. Sequestered Probate, Conservatorship Minor 5. Sequestered Probate, Guardianship of a Minor 6. Sequestered Probate, Guardianship of an Adult 7. Sequestered Probate, Conservatorship/Guardianship of Adult 8. Sequestered Probate, Conservatorship/Guardianship ofMinor
Examining the 2nd Judicial District: Looking at just the znd Judicial District, Albuquerque court, it is curious that the last day a guardianship case was filed in 2016 was as early as Dec 9, 2016, when during the previous 17 years the last guardianship case ofthc year was usually filed sometime in the last week ofDecember, Dec 24-31 .
Late 2016 was an important year in this history ofNew Mexico media reporting on guardianship, because from Nov 27th to Dec 4th the Alhuquct·quc .loumal published the g•·oundbreaking series from natiqnalb·:-~ndicated columuist Diane Dimond, entitled 44Who guards the guardians'?" According to Diane in a KOAT-TV video, her mailboxes and those of the Journal " just blew up" ~1s outraged New Mexicans called in to protest what had happened to matriarch- in an over 5 year long guardianship at U1e hands of her court· appointed Conservator and Trustee, attorney-
-https ://youtu.be/fRLNsNv-Nco
So were there actually no new guardianship cases filed in New Mexico's 2nd .Judicial District from Dec 10-31, 2016'? Or were cases filed between those dates 'disappeared'?
Return of the Desaparecidos: Prioa· to the time of the district courts sorta obeying - in a limited, online-access way- state statutes and rules that require the public be granted access to the case docket, and other information, cases wen~ 'disappeared'.
Even if you knew a valid case number, or the name of someone you knew had been conscripted into guardianship, all attempts to find out information that the public is legally entitled to know, was returned with the 111essage encapsulated in this article's header image: No results found.
In previous posts, we referred to this phenomena of the courts ensnaring its victims in guardianship and then removing all public, legal traces of it from any courthouse records, the desqoarecidos. jn IJ.Qnor of the brave Ar~entinian mothers and grandmothers who spoke out against their government's 'disappearing' their children and grandchildren. Just like in Argentina, New Mexico's incapacitated have been taken into guardianship, into a legal black hole, from which no knowledge, no ligbt, and no life ever escaped.
To a certain degree, this lawlessness of the New Mexico courts has been ameliorated- at least if you have access to a computer and the internet- since May 29, 2017, when the courts began on-line compliance with New Mexico statutes (NMSA 45-5-303 Q); NMSA 45-5-407CM)) and Rules of Court Procedure (NMRA l-079CD)(71.(2); NMRA I 2- 314(<;)(9),( 12))
But to this day (Wednesday July 26, 2017) if you call up a district court clerk's office, or show up in person at a courthouse, you will be denied access to public information about guardianship cases you are entitled to see.
The Mystery of the Missing Case Numbers: Due to the methodical nature of how the total number of guardianship cases in the four study district courts were obtained, we were dumbstruck to find that within a valid series of case numbers, several rctmned "No results found."
Here is a table of the case numbers that have effectively disappeared from all traces of information, beginning Jan I , 20 l 0 to June 30, 2017, in our four study district courts:
These findings of 'diS(lppeared' cases ONLY i11clude cases coded "PQ" or 'guardirmship 1 C(lSes, for only the listed district courtS; ror Jan 1 2010 to Jtme 30, 2017.
pt -101 2nd - 202 31"d- 307 lJlh -1329
Case Number Case Number Case Number Case Number
D-101-PQ-2011 00040 D-202-PQ-201000115 D-307 -PQ-20 1200085 D-1329-PQ-20 1200016
D- 101 -PQ-201100050 D-202-PQ-20 1000203 D-307-PQ-20 1300032
D-10 1-PQ-201200001 D-202-PQ-201100080 D-307-PQ-20 13 00041
D-1 0 1-PQ-20 1200013 D-202-PQ-20 1100096 D-307-PQ-20 1400005
D-1 0 1-PQ-20 1300003 D-202-PQ-20 1100155 D-307-PQ-20 1600037
D-1 01-PQ-2013000 10 D-202-PQ-20 1200192 D-307 -PQ-20 1600050
D-101-PQ-2014000 17 D-202-PQ-20 1300036 D-307-PQ-201600077
D-1 0 1-PQ-20 1400029 D-202-PQ-20 1300041 D-307 -PQ-20 1600087
D-101-PQ-201500006 D-202-PQ-201300058 0 -307 -PQ-20 1700002
D-1 0 1-PQ-20 1600037 D-202-PQ-20 1300167
D-101-PQ-201700014 D-202-PQ-20 140020 l
D-1 01-PQ-2017000 15 D-202-PQ-201700035
12 cases 'disappeared' 12 cases 'disappeared' 9 cases ' disappeared' I cases 'disappeared' out out of a total of 279; or out of a total of 1730; or out of a total of 562; or of a total of 176; or a a 4.3% disappearance a 0. 7% disappearance a 1.6(Yo disappearance 0.6% disappear~mce rate rate rate rate
From the chatt above, on a percentage basis, the 1st Judicial District Court in Santa Fe is the worst offender of using desapareci.dos to hide guardianship cases from any budgetary, case management system, or judicial oversight, or basic public knowledge. With a disappearance rate of 4.3% the number of cases disappeared fi·om the 1st Judicial District's official case listing, is bound to have a significant financial impact on the court's budget and resource allocation, to name just two obvious important metrics impacted by the coutts' use of desaparecidos.
We decided to investigate the 2nd Judicial Dish-ict cases to determine what had happened to these sequentially valid case numbers about which " No results found'' was all we could fmd online, despite the May 29, 2017 release of all other guardianship case dockets and names of the Wards, in accordance with NMSA 45-5-JQJ (I); NMSA 45-5-407(Ml.
We were told on Wednesday July 26, 2017, when we called the Albuquerque znd Judicial District
Clerk's office, inquiring about the validity of these case numbers that appeared in sequential order for the znd Judicial District, Code 202 (listed in table above) that the numbers appeared to be valid case numbers of sealed guardianship cases.
When we asked the clerk to please provide at least a title to the case, the clerk demanded to that we present the names of the patties to the case. When we said we did not know the parties to the case, the clerk told us that we were not allowed access to ANY information about these 'protected persons' cases. The clerk demanded to know bow we had obtained the numbers to these cases, about which all knowledge appeared to be forbidden to the public . We explained that we had derived the case numbers by sequentially following the case docket numbers. The clerk indicated this was not possible, given that the public was barred from any information at all about guardianship cases.
We attempted to explain to the clerk that their refusal to grant us the four points oflaw to which the public shall have access in guardianship cases, the clerk told us we were wrong; they had worked at the courthouse for "way more than 5 years" and never once was any information ever allowed to be given to any member of the pubUc about any guardianship case. You had to be a party to the case to get inforll1ation about any guardianship case. Period.
Who authorized the desaparecidos? Whoever is responsible for removing these guardianship cases has done a good job of not just removing the cases from the pub He's statutory right-to-know, but they have also remoyed these cases from the Admjnjstratjye Office of th_e Comfs (AOC) annual statistical adcdendum reports published by the Supreme Court for eachfiscal year. beginning J 99&. (Following the foregoing hyperlink, click on the 'Reports' folder in the selection tree, then expand the folder for each Fiscal Year you want to sec the available reports.)
This implies that the annual reporting the state's Supreme Court, in conjunction with the AOC, presented to the Legislature, as well as any relevant budgetary groups like lhe Board of Finance, are incorrect, because they omit a certain percentage of guardianship cases that apparently do exist, and therefore consume budgetary dollars, court time, judicial attention, and court personnel resources- all of which appear to have been sanitized and removed.
Here is WiliPowerNM's cross-referenced reports from the 2nd Judicial District's Fjscal Years 2011-20 16, showing that in FY 2011, 2013, 2014, and 2015 the number of guardianship (PQ) cases reported by the AQC to the Supreme Court each year is missing the desaparecidos cases. We can't explain why the numbers that our research and the statistics presented in FY 20 12 and 20 16 don't match up, but then again, tl1at's not our job.
Fiscal Year # of Desaparecidos AKA "No results found" v. #of Reported cases*
2011 253 new cases in statistical addendum; 256 new case numbers on Collrt's docket, with 3 marked ''No results found"
2.illl 241 new cases in statistical addendum; 241 new case numbers on Cou11's docket, with 1 marked ''No results found"
2013 244 new cases in statistical addendum; 248 uew case numbers on Court's docket, with 4 marked "No results found"
2Qli J 88 new cases iJJ statistical addendum; 189 new case numbers on Court's docket, with I marked ''No results found"
Fiscal Year #of Desaparecidos AKA "No results found" v. #of Rep01·tcd cases*
2Qll 215 new cases in statistical addendum; 216 new case numbers on Cotni's docket, with 1 marked ''No results found"
2.Q1Q 228 new cases in statistical addendum; 227 new case numbers on Comt's docket, with 0 marked "No results found"
* Th1s table only reports a totzll of I 0 desaparecidos as compared to the 12 desapc1recidos reported in the table in "The Mystery of the Missing Case Number," but that is because 2 of the desaparecidos reported in"The Mystery of the Missing Case Number" fall outside the Fiscal Years 201 1-2016.
R U Kidding? No, actually, that's the ward's name To wrap all this up and bring it home to how guardianship cases in New Mexi.co lack oversight from the people who have the authority to administer guardianship cases, and those who claim that the system is functioning perfectly and follows state statutes and rules, nol to mention the moral and human rights obligations when removing a person's civil, constitutional, and human rights, thereby consigning them to a lifetime of domination by a court-appointed person - let's consider the case of R U Kidding - and we are not joking - that is the Ward's name.
This is also a situation that reveals not only are guardianship cases 'disappeared' but so are probate cases, and we suspect any type of case that judges and attorneys want to disappear can be made to disappear. So here's what we've uncovered so far about the hapless R U Kidding:
A petition to put R U Kidding under guardianship was filed in New Mexico's 2nd Judicial DislTict on March 24, 2016, Case title "In the Matter ofR U Kidding": Case Number: D-202-PQ-20 1600052. The petition was brought by attorney - represented by his wife, and originally Judge-was given the inilial assignment.
Still on March 241h, in addition to the opening petition, a Motion to Consolidate was filed, a Request for hearing/setting was filed, and there is an Acceptance of Appointment as temporary guardian and conservator, even though there had been no hearing, just the setting for a hearing. The case docket is incomplete and does not state who was awarded the guardianship and the conservatorship, but we believe it likely that as the Petitioner, was given these powerful roles. Thus a temporary guardianship was established without any hearing, notification to the affected parties, or many other parts ofNMSA 45-5-303 and 45-5-407 being obeyed correctly and fully.
On March 25th - the 211d day to put R U Kidding under guardianship - two things happened:
l. The judge assigned to the case was changed from-to- and 2. The case was closed with an Order of Consolidation: "Consolidating case numbers D-202-PB-
2014-00455 and 0-202-PQ-2016-00052 all future pleadings shall be filed in D-202-PB-20 14-00455."
When we went to look up the newly consolidated Probate case munber ("PB" case code) under which R U Kidding's guardianship case was from now onward to be conducted, we were greeted with the ''No results found" message.
We called up the 2nd Judicial District Court and Case number 0 -202-PB-20 I 4-00455 was titled and that the case was sealed.
to a clerk, who was a little helpful. We were told Revocable Trust"
Because the case was sealed, the clerk lold us the public was not allowed to know anything more about
the case (which is not true, but once again, you can't argue with a clerk who's been told a lie by her boss, because her ability to receive a paycheck depends on suppo1ting the boss, not blowing the whistle on them. This is especially tme if your boss is a judge or works in a courthouse.)
Now imagine that! A probateMtrust case involving Judge with a completely (and incorrectly) sequestered court record about which the public is not allowed to even know who the parties are, who their attomeys are, and tlus case involves one of New Mexico's most notorious conservator and trustee who specializes in "disposing" of valuable, high-dollar trusts and estates for far lower values than the estates' and tntsts' assets are worth.
Given Judge ··l·s current mulhMmillion dollar case loads of
l. D-202-CV-201304646 (PR) v LLC et al-a case in which Judge -has just done an abrupt aboutMface and unsealed the case after four years; and
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Stay tuned for more - lots more - statistical analysis based on the court's own records and case dockets (for the cases the public is allowed to see.) We will continue to dive deep into the records and report on the continued lack of oversight, malfeasance, and what appears to be downright conuption and Fraud Upon The Court - that the court itself appears to be committing. We don't have any answers as to WHY this may be occurring, other than the usual suspect: money.
WilLPowerNM bas been formed to support and inform each Member of the Commission in their work over the coming weeks and months by preparing and releasing regular email information in a format similar to this weekly message and by establishing and maintaining a publicly accessible and widely promoted web site on the Commission's impo1iant study eff01t.
August 16, 2017 ~~©~0~1§~ AUG 2 1 2017
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After perusing the report on the "Wings Grant" Program we have several comments and questions.
Under the heading titled Key Problems in the New Mexico Guardiansh~o System the following were listed as the Aoc•s priorities:
1. No court-appointed forms for proceedings with the exception of the guardian • s annual report. This creates an obstacle for families attempting to file a guardianship case as a self- represented litigant, since they have a limited understanding of the legal process or implications of plenary guardianship.
We find it very odd that a form would be considered a top priority when a form could very easily be created to solve this problem.
Those of us who have a "loved one" who has experienced neglect or abuse from the actions taken by a Corporate Guardian would agree that ACCOUNTABILITY and PROTECTION of the INCAPACITATED INDIVIDUAL would be OUR #1 priority.
We could not find anywhere in the report that referenced the elderly and mentally ill and their need for accountability and protection from negligent and abusive Corporate Guardians, Petitioning Attorneys, GALs, Visitors and Judges.
Why is this not the priority of the Adult Protective Proceedings Task Force . the Administrative Office of the Courts. and the Supreme Court Justices?
2. New Mexico lacks qualified professionals that can be appointed to serve in guardianship cases. The OOG has faced a significant backlog of cases in recent years with I imited funding to pay for the petitioning attorney, GAL, Visitor and Court-Appointed Guardian.
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I rtotcilly agree ~ ·~~ your statement that New Mexico lacks qualified I 1r. f.essionals. In ~~: experience Corporate Guardians as well as others . lved in the gua.JtOi~nship process have been ~ unprofessional,
rrbga-nr,-arrd--nright rude'' when questioned about their negligent, GbYsi¥&:·-ana4rauettlent actions . Their behavior has been unacceptable and unprofessional!
3. The AOC has been unable to fund any new positions or technology improvements to increase monitoring of guardianship cases due to a lack of funding. Yet in the report it states that in the Fall of 2013 the AOC retained a part- time staff attorney to focus on guardianship issues facing our state courts.
What specificall~ has this part- t ime staff attorney accomplished in :the last 4 years?
What actions bas the AOC taken to obtain monies t o fund technology improvements to increase monitoring of guardianship cases?
In November, 2013 a legal forum titled "Critical Issues in Adult Protective Proceedings: A Forum to Explore Emergent Issues and Recommend Solutions" was formed.
In 2014 a steering committee created the Adult Protective Proceedings (APP). In the report it states that currently no formal collaborations exist between the courts and state agency/disability partners . The report also states that former Governor Carruthers was instrumental in revising New Mexico • s guardianship and conservatorship statutes to provide greater protections for alleged "incapacitated individuals" .
What has pre'leo:ted the AOC from forming formal collaborat ions between the courts and state agenc~/disability partners the lost 20+ years?
What greater protections exist for alleged "incapacitated individuals?
The report also states that the APP Task Force will build upon the statewide priorities already identified by the Task force by defining 2 or 3 priority areas to be addressed during the grant period. What are the statewide priorities already identif ied by the APP Task Force?
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The report also states that there will be 4 regional meetings so the public can provide input. When will the public be informed of the 4 regional meetings?
How were representatives from the public chosen to be on the APP Task Force as well as the criteria for the selection? We feel that there should be many more members of the community and/ or family members on the committee to address the "real life" issues that occur under a Corporate Guardianship.
How were individuals from the public chosen to represent "family members" on the Adult Guardianship Study Commission as well as the criteria for the selection? Why are there not more "family members" on the commission?
In the WINGS Report it mentions the Guardianship Attorney at the AOC. What is the job description regarding the duties and responsibilities of this position?
Finally, we would like to publicly thank one of the Commissioners who showed courage and true committment to bring "transparency" to the Adult Study Commission as well as her desire to provide oversight to the "incapacitated individuals" in the state of New Mexico under corporate guardianship.
A sincere thank you is extended to another attorney for taking responsibility for the incorrect location regarding the address of the Capitol Building, owning up to his mistake, and apologizing to members of the audience for any inconvenience.
Thank you .
Sincerely, Lorraine Mendiola, Member of AAPG David Heeter, Member of AAPG Kelley Smoot-Garrett, Executive Director of AAPG
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8/11/17 NM Adult Guardianship Study Commission Comments of Susan Bennett, retired, guardian and court visitor, health law paralegal
Be: Making public the court papers and reports in guardianship and conservatorship cases; opening up sequestration.
Bequest: Please exercise the greatest caution.
My concern: Will opening up cases to public review, even on a limited basis, dilute the protective nature and intent of the proceeding, and hamper court visitor and guardian ad litem access to crucial information?
If family and others are afraid what they say will end up in the public domain, will they be reluctant to report the truth as they know it about the vulnerable person's situation?
The guardian ad litem and the visitor basically do "detective" work to inform the judge as much as possible about the alleged incapacitated person's situation and why they might need the protection of the court.
If those who know what's going on in the vulnerable person's life don't want to talk about it because they fear what they say will become public, the vulnerable person may go unprotected and continue to suffer abuse, neglect, self-neglect or exploitation.
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New Mexico
3655 Carlisle NE Albuquerque, New Mexico 87110 - 1644 Phone: (505) 883-4630 • FAX: (505) 883-5564
Comments to the New Mexico Adult Guardianship Study Commission from The Arc of New Mexico Guardianship Program
The Arc of New Mexico has provided guardianship services to individuals with developmental and intellectual disabilities in New Mexico since 1978. Currently, The Arc serves 172 individuals around the state from Las Cruces to Taos and Gallup to Clovis with 10 guardianship coordinators. Each guardian carries a case load of approximately 20 individuals. The Arc's clients include persons with behavioral and medically complex issues and range in age from 15 through 85. The Arc provides services in New Mexico only to persons with intellectual/developmental disabilities who have no one else willing or capable of acting as their guardian.
The Arc provides decision making support in all life areas at the level each person requires. Guardians at the Arc believe in individual choice, person-centered planning and services, least restrictive alternatives and environment, dignity, respect and fair treatment for all people regardless of their disability.
1. Guardians visit their clients at their homes and work or day sites, attend medical appointments, help to select educational programs, day and recreational services and assist in finding jobs.
2. Guardians support individuals through illnesses, accidents, major life changes, relationships with family and cultivate social participation and greater inclusion in the community.
3. Guardians meet with their clients a minimum of one time face to face each month and more often if necessary. Guardians attend physicians' visits and Interdisciplinary team meetings as well.
All guardians at The Arc are certified as either Certified or Master Guardians by the National Guardianship Certification Center. They also go through Criminal records history screening with the State of New Mexico that includes fingerprinting cleared through the FBI and are required to have a minimum of ten hours of training per year in topics related to guardianship.
Potential protected persons are referred to The Arc from the NM Developmental Disabilities Planning Council., Office of Guardianship. The Office of Guardianship contracts with corporate guardians around the state, referring persons in need of guardianship to agencies.
In New Mexico, a guardian is appointed in the County in which the proposed protected person resides. The appointment takes place in State District Court with a presiding Judge making the appointment. Upon filing of a petition of guardianship, experts are appointed to make a recommendation to the Court about the person's need for a guardian and the suitability of the proposed guardian. These include a qualified health care professional, a court visitor and a guardian
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ad litem. There should be broader and more detailed information about the proposed ward filed with the petition. There should be an objective assessment of whether the person needs a guardian and if so, what type. The NM Probate Code suggests that not all guardians be appointed plenary guardians but there is rarely if ever, a discussion prior to the hearing about
a) Whether the individual needs a guardian of any type; b) What alternatives to guardianship can be put into place to assist the individual without the
need for guardianship; c) What type of capacity the individual has and whether a guardianship is appropriate.
Once the guardian is appointed, he or she will assist the protected person with selecting a place to live, finding services to attend during the day or finding a job, medical care and treatment, psychiatric care and treatment; medication and planning for the future.
Following are some of the issues that have been brought up to the Commission together with comments from The Arc of New Mexico.
Sequestration - The position of The Arc of New Mexico is that documents submitted to the court and used to support the petitioning attorney's request for guardianship should be kept sequestered and only available to those with a "need to know''.
Notification- Proper notification to all parties with a vested familial or financial interest should include all supporting documentation. (Who was notified, when notifications occurred, number of attempts, phone calls, certified mail, etc.) This notification should take place prior to the guardianship being established .
Mediation- If mediation is desired, it should be requested immediately upon notification of initiation of steps to acquire guardianship.
Qualifications · A guardian for one person does not need to become certified but should be familiar with the duties and responsibilities of a guardian as well as the rights of an individual under guardianship. There is a Guardianship video that all proposed guardians should review before appointment which explains the role and the process of guardianship more fully.
Family contact- Contact with family members and other friends and neighbors should be allowed unless: 1. the protected person, of his or her own volition, asks not to see the individual(s) requesting to visit; 2. the proposed visitors have been observed to be harmful to the protected person. The guardian has the ability to limit contact and or require the visits be supervised.
Training- The Administrative Office of the Courts should consider standardizing the required information given to potential guardians. For Conservators, additional trainings should be provided regarding the management of assets. At this point, a conservator need not understand investments, the prudent man rule, financial and asset management, real estate transactions, and other mechanisms designed to safeguard client funds and assets. Many conservators sell off assets to provide for their clients care needs without exploring the most prudent way of managing assets and
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supporting the person through benefits or to look at what the person wants. More elderly and disabled people could remain at home if institutional care options were replaced with in home care.
Monitoring- Additional funds should be placed in either the Administrative Office of the Courts or in each District Court for monitoring purposes, including accountants.
Guardian ad litem- Although the Guardian ad Litem role is outlined in the Probate code, Court appointing a guardian ad litem should describe the responsibilities and duties clearly. The GAL should visit the protected person before the hearing and try to determine the interests of the protected person in the guardianship. In addition to providing the protected person's opinion to the Court, the GAL is also obliged to provide a best interest opinion about the needs of the protected person to the Court. The GAL should not select a guardian for recommendation for an appointment without meeting and considering every potential guardian.
Choice- If, prior to the filing of the guardianship petition, the alleged incapacitated person has executed a durable power of attorney, a health care decision advanced directive, a mental health advanced directive, and/or a trustee, these choices should be honored unless the designated person is no longer available, is no longer capable or chooses not to serve.
Conservator - A separate conservator should be appointed for every alleged incapacitated person with assets. The conservator should be required to provide financial reports to the court and to other individuals who have a potential interest in the protected person's estate. The estate should be managed with the intent of providing for the protected person's needs for the length of his or her life. A list of assets should be available to the parties (attorney, Gal, proposed guardian, and the Court) prior to the appointment.
Financial reports- The Courts should require financial reports be given to all family members who can demonstrate a fiscal interest in the protected person's estate. Reports should come, at minimum, 90 days after the guardian/conservator is appointed, then quarterly until the protected person dies and 90 days after the death.
Fees-The Supreme Court should establish a fee schedule with maximum fees the guardians/conservators are allowed to charge. All charges against a protected person's estate must be accounted for and justified to the court of jurisdiction.
Submitted by: Doris Husted, Public Policy Director The Arc of New Mexico and Family Guardian Work Phone # 505-883-4630 Cell Phone # 505-228-2784 [email protected]
DJ rg© rgo~ rg ~ ii SEP - 5 2017
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Name Susan Bennett
Date 9/19/17
TII~©I§OVIE ~ ~ SEP 1 9 2017
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Phone 505-350-3848
Email [email protected]
Enter Comment
Attached is the text of a talk I gave to the New Mexico Elder Mediation Network on 4/28/17. It provides information regarding aging and guardianship I leamed from many years in the filed of adult guardianship and health law paralegal work. I hope the insights gained from my work can be helpful to the commission members. Thanks you, Susan Be1mett
4/28/17 NMEMN Notes, Susan Bennett Thank you for having me here today. I hope some of the information I share will be helpful. I'd like to present for about 20 minutes, and than do questions and discussion. I can provide a copy of my comments by email for anyone who would like one afterward. ****************
In the late sixties and early seventies, I was a case worker in the New York City welfare department, on the Lower East Side and later in the South Bronx. My clients were elders, mothers with children, men out of work, ex-cons, or people with mental illness or drug and alcohol addiction. So, varied populations of vulnerable and I or dysfunctional people. I considered this my basic training for later social work case management with tough cases. By the way, I use the term "case managemenf' for what many now call ''care management''. In New Mexico, more than twenty-two years of my work was with all age adults, who had developmental disabilities, mental illness, cognitive decline, or a combination. I worked for agencies and later independently. I retired at the end of 2010. My social work case management was under various legal statuses. Listing them here from most restrictive, to least restrictive: guardianship, Court Visitor, representative payee, power of attorney, contract for case management services, simple consults; sometimes ethics consults. I spent five years at the UNM Health Sciences Center in health law and guardianship paralegal work, and on the hospital ethics committee. Later I did hospice social work. So, today I want to share some of what I learned from all this, especially from my work with elders with decisional incapacity and functional Impairments, and with their families. Some of this may not be new to you. But I am hoping some of it will help with your strategies for effective elder mediation, perhaps in making informed neutral suggestions when relevant. I always found that the more I understood about aging and It's complications, and the various types of relevant resources, the better I could do in whatever legal position I had with clients and their families.
Some basic principles that guided my work: 1. Don't make assumptions about anything. Find out the real information. Good decisions need to be based on facts. ++++++++++ 2. In my experience, if the focus is kept on the needs of the elder, that principle guides the rest of the discussion, analysis, problem solving, and actions taken. It is Important to know as much as possible about who the elder is, how they lived their
life before, what their wishes are, or what their wishes were when they could meaningfully express them, and based on their past, what would they have done in today's situations. Sometimes family or friends can help provide this information. ++++++++++ 3. It is important to understand the level of mental functioning of the elder. Sometimes what seems like dementia is a result of effects of mixing medications, severe depression, thyroid problems, Urinary Tract Infections or UTI's, other illness, sleep deprivation, or the person may be up at night and sleepy during the day. The primary physician may be helpful figuring this out, and I or a pharmacist to review the medications. It may also be important that the elder have a cognitive evaluation by a professional with expertise in cognitive functioning, such as a geriatric psychiatrist or a neuropsychologist with expertise in aging. Elders can be able to communicate well superficially, and say what they want, but they may no longer understand the pros, cons and risks of a given situation. Impairment of the brain's area of executive functioning may be interfering with actual followthrough on Important tasks. An in-home occupational therapy evaluation may be needed, to test their functioning regarding important dally living tasks of the person while they are on their own. Family members may not understand or admit that their parent is in cogn itive and functional decline. Cognitive status is complicated, and can be different from day to day. The general public needs more good education on these issues In our aging society. ++++++++++ 4. Use the least restrictive and least invasive interventions possible to meet the needs in any situation. The goal is maintaining as much independence as possible for the elder. This applies to imposing legal status, such as guardianship, as well as to arranging for the appropriate level of support services needed. Transportation services may be an early intervention to help solve driving problems, but also to get the person used to having help. Another early service needed to enable the person to stay at home might be daily money management, such as help with paying forgotten bills . Next, maybe hiring a nurse to help manage medications. Then, perhaps a homemaker to do cleaning and meals, and help ensure nutrition and hydration. Additional home care may be needed to help with personal hygiene. Lack of hygiene can lead to
Urinary Tract Infections, which may cause confusion and also lead to fatal sepsis. My threshold of risk for needing home care or moving a person to a supervised setting involves serious medical risk regarding medications or other medical issues, and not being able to respond to emergencies safely, such as being able to get out of the house if there is a fire. If the elder will accept help before that. that is better. Other Issues or risks among the many possibilities, of course, may include: letting strangers into the house; giving strangers or others money; going out and getting lost; going out In middle of night in the cold; or not being able to afford or not accepting home care. ****************
So, now, on to family relations. In my work, the relationship with the family often varied according the nature of the legal status with the client, the nature of the family dynamics, and the personality of the individual family members. So, regarding consults : I spent many hours as a case manager doing consults, by phone or In person, with family members. I gave them information on aging issues, resources in the community; I counseled them that, as the abilities of the elder change, so do the solutions to the issues. Some of these issues: how much help the elder needed in the home; whether to try to move them if they do not accept help In the home; or what to do if they couldn't afford help in the home; the need to change caregivers until it's a good match with the elder; when and where to move the elder again if the first placement doesn't work. And what the family members knew of the wishes of the elder about their declining years. Since these were not always easy times for the family member, I often advised them to take it a half a day at a time. So these interactions with family were mostly cordial. Regarding contracting with the elder: If services that I did for the elder were under contract with them, sometimes family did not like that; and yet if the elder had capacity to make decisions and wanted agency help and not family, it was their right. If contracted by the family: If a family member was acting under power of attorney, or guardianship or conservatorship of the elder, and the family member contracted with us tor case management for daily life
needs. they were often cordial. Sometimes they were demanding; sometimes not understanding or disagreeing with the least restrictive or least invasive approach for the elder. If the family insisted on unethical services, the contract was discontinued. 24n life management under case management might include: to arrange and oversee home care; manage bill paying; make and attend medical appointments and provide accurate current information to the doctor; spend time in the ER with the client, sometimes In the middle of the night. to provide medical info and the appropriate care upon release , and much more. Of course, an agency or case manager may have a reasonable relationship with one or more family members, and not with others. The case manager sometimes meets with all family to try to work th ings out. The focus is on the elder. and their needs. If more time is spent unproductively listening to unhappy family members. the fees increase. The duty is to the elder, and not to straighten out old family dysfunctions. Under Guardianship: If I, or the agency, were the court appointed guardian (or conservator), the relationship with various family members might be more strained, or oppositional. The ward as well can resent the guardian or conservator, if they are even partially aware of the situation. Protection of the elder under guardianship is last resort and can be hard on all parties. Service fees paid from the elder's assets can be resented by adult children who were counting on inheritance. Relating to angry family members can be very difficult. Sometimes being firm, setting boundaries. or limiting contact is important. Limiting, or Insisting on supervision, of family visitation with the elder can be necessary, if the family upsets the elder, or if there is risk of asset exploitation or even kidnapping of the elder. Learning to handle difficult family members becomes a skill hopefully learned through experience, training seminars, classes, ethics consults. etc. As someone recently said to me, many of these families come Into the system already broken; the guardianship system itself does not break them. The adult child 's healing may involve taking responsibility for their part in neglect or exploitation of the parent. Can mediation, or other support systems. help no matter how deep the family dysfunction is? ++++++++++ Mediation can provide an emotionally safe place so everyone can express their feelings in a
respectful environment. Some elders and some adult children may never have had a safe, respectful place before. The elder may be, or may have been, nasty, unfair, mentally ill, or whatever, but now they need help. They may have an unwdiagnosed mental illness or personality disorder. The unbalanced elder may have raised very dysfunctional children, but the elder Is now the focus of the problem solving. If the parent has the cognitive ability, they might be present and take part in the mediation. The elder may not heat well, so talking loudly or having someone next to them to repeat things, may be important. A professional hearing evaluation may be important for the person. This might also help to evaluate if the person does not have hearing loss, but just does not comprehend what is being said, due to cognitive impairment. If the decisional capacity of the elder is not clear. it may be important to have an evaluation by a geriatric psychiatrist or a neuropsychologist with expertise in aging. to determine the current level of mental functioning, to offer a diagnosis as to the nature of the decline, and to determine it there is anything that can improve the situation. If the elder gets too upset by the mediation discussion, it may be harmful to them, if they are no longer able to process emotions or family difficulties effectively due to compromised mental ability . Sometimes adult children are grieving the loss of the parent as they decline; sometimes the elder is grieving their own decline and loss of independence, if they have enough awareness. Family may feel guilty about the past. Out of town adult children may feel guilty being tar away; sometimes they come to town and criticize the local sibling, who does the most. Often the adult child who does the most for the parent gets the parent's wrath, as the parent loses their independence or may not recognize that they need help. It is easy for adult children to set up an oppositional situation with the parent, who still wants control over their own life, and is still the parent, even though their memory or abstract thinking or executive functioning may be declining, and they don't know it. As I used to say, they don't know what they don't know. The elder may resist, even if a reasonable idea is presented. Can the suggestions for help somehow become the elder's idea? Maybe just offering a choice between two options, can be
helpful. if it still provides a choice for them, rather than sounding like a mandate. Can a non-family friend or case manager have a more objective talk with the elder, and offer suggestions in a less loaded dynamic than the family can? Even when family is court appointed, serious tensions among siblings can arise. There may be resentment among siblings, step-siblings and half-siblings. Family members may be suing each other. Families often don't know available resources for seniors, or how they work. For info and resources, perhaps a geriatric care manager, a financial planner, an elder law attorney, or other professional should be at the mediation; or a resource list could be provided to the family. Sometimes adult children just want to be a son or daughter, and not be in a caregiving or decision-making role. Some mediations might be about sharing care needs of the elder; some perhaps about agreeing who should be appointed guardian or conservator; or to accept independent court appointed guardianship or conservatorship, if appropriate. Power of Attorney given to an adult child by the parent doesn't always work: sometimes the adult child takes money or assets, or neglects the care. That may lead to a court case. Co-guardianship and co-conservatorship doesn't usually work, in my opinion. If there are disagreements, the elder's care and needs can get lost In the middle. Often it's not a good idea to have the parent live with the adult child. In some cases it may work, if they get along really well , and the adult child has the patience to deal with issues of aging. Sometimes adult children need to remember they are not entitled to inheritance until the parent dies. Also, if assets are given away by the elder, It may Impact qualifying for institutional medicaid if the elder runs out of money to do private pay for care. As in social work, I think it's important for a mediator to separate him- or herself emotionally from the issues and participants of the mediation, to remain useful and functional. So, to be sensitive but not drawn in. So, In closing, resentments, hierarchies, who was the parent's pet: these old family patterns and issues can be hard to change and hard to manage. Family members with serious dysfunction may need professional help. Then perhaps mediation could work better for them. Thank you.
