Blair Darnell lived on her horse farm south of Corrales for more than five decades and died in Guardianship ordered by Judge Beatrice Brickhouse and implemented by her appointed attorney Darryl Millet. (Marla Brose/Albuquerque Journal)

Guardianship Study Commission Message #3

Guardianship Study Commission Members, News Media Professionals, Others:

Created in response to public outcry resulting from a series of recent Albuquerque Journal articles authored by Diane Dimond on guardianship abuse, the New Mexico Adult Guardianship Study Commission must now assimilate the public rebuttal appearing in another Journal article this past weekend by Darryl Millet, the Albuquerque attorney named in the initial series, who defends against any public perception of him as an “abuser” of the guardianship system.

In the first two of a weekly series of messages to Commission Members, my predecessor authors have set forth six clear symptoms of abuses present in guardianship and related end-of-life practices in New Mexico. Their emphasis has been to clearly state WHAT the problems or symptoms are that the Commission ought to address.

In this third weekly message to Commission Members, I present three reasons WHY these symptoms exist in quantities sufficient to call forth great public anger and official scrutiny by the Commission.

“Guardianship is about money and only about money”—a direct quote from the Florida Court Examiner Training Manual Video

Big Money in a Large, Expanding, and Conflicted Elder Care Industry: The demographic facts affecting elder care in New Mexico are similar to those throughout the country: people are generally living longer often into their 80s and 90s, large numbers of baby boomers born between 1946 and 1964 are now beginning to require elder care services by family members and/or outside professionals, able-bodied family members are working longer at their jobs, and nearly half of the population lives in a step-family situation. The demographic trends make responsibility for unpaid care elder care by the family itself increasingly difficult to arrange, creating thereby more demand for an elder care industry of living facilities, nurses, unskilled care-givers, physicians, therapists. administrators, and entrepreneurs.

At the same time modern health-care technology provides those who engage in elder care with a complex and frequently confusing array of procedures, devices, treatments, supplies, and drug regimens closely linked to formal medical care by physicians and hospitals. It is therefore not at all surprising that there are a large number of private elder care organizations that have sprung up to meet the needs of those elders for whom family care options are limited or non-existent. The costs of these available elder care services can be astoundingly high.

Disturbingly, women are much more likely to be conscripted into guardianship than men since 1) women live longer than men, and 2) women more likely to trust authority figures (judges and attorneys) and predatory attorneys (of both sexes) exploit that fact.

In his recent Albuquerque Journal rebuttal to the Dimond series, attorney Darryl Millet cites costs of $14,000 to $16,000 per month for the care of Blair Darnell. This expense – nearly $200,000 per year for the care of a single person – is big money that puts many people to work, generates good fees for health-care professionals, and provides reliable profit to the elder care organization(s) in charge of the case.

In dealing with WHY abuses exist, the Commission Members should understand that this elder care industry, like any other industry, will constantly be seeking more business from the increasing population that is coming to need its services. With burgeoning opportunity facing these elder care business operations, the Commission should also understand that properly managing the conflict between “the best interests of an incapacitated elder person” and “ the best interests of the elder care industry” is an almost impossible assignment – especially when funds are independently available to pay the bills. WillPowerNM.org intends to provide many further details about this elder care industry and is soliciting special insights from the public. The public is invited to comment (below) of their stories

Predatory Rings Find Low-Risk Illicit Returns: The second reason WHY the problems being addressed by the Commission Members exist is that there are skilled predators at work within the elder care system, lead by attorneys. The large and conflicted elder care industry described above provides excellent cover for those actively pursuing illicit returns as insiders. It is useful to regard many of these predators as a group or “ring” that works best when professional participants in different positions cooperate with each other.

Wealthy elderly individuals, their properties and estates can be easily targeted by the predatory attorneys whose long range generational plans lead to the “harvesting” of family assets at the proper moment. Typically this starts as soon as a person contacts a law office to write a Will or create a Trust, long before there is any declaration of incapacitation. The attorney, in the course of drafting the legal documents, learns not only the total net worth of the victim-to-be, but also critical points of family dissension, that are exploited in guardianship. Once the victim is actually declared incapacitated, the needs of an incapacitated person can be “played” in a variety of ways. Uncooperative family members can be blamed for their own losses. The predatory schemes are of a wide variety and are always very low risk. The knowledge and power advantage of an organized professional ring of insider-predators is simply too great for most victimized families to comprehend, much less detect and fend off until it is too late.

The Commission Members should understand that illicit benefits from guardianships and other end-of-life situations are very easy for predatory rings of professional insiders to acquire at low risk of detection and even less risk of being held to account. From a collection of accessible cases, WillPowerNM.org will be providing many further details about the operation of such predatory rings and is very interested in obtaining further details from those familiar with other instances of ring operations. Please leave your stories below in the comments section.

Equity Powers of District Courts Improperly Protect Predators: The third reason WHY there is such a broad pattern of abuse is quite simple yet non-obvious to most: the problems stem from abuse of the equity powers of New Mexico district courts that are in fact both courts of law and courts of equity.

Judges in the district courts of New Mexico use their equity powers to provide cover or protection for the predators. Unappealable equity rulings by judges are regularly made on the basis of presumed “fairness” among the parties and “good conscience” regarding the terms. But in abusive guardianship and other end-of-life instances in New Mexico, these equity rulings repeatedly support insider predators against outsider victims.

Originating in the powers of earlier chancery courts that are now merged with courts of law, equity powers are used to administer estates (probate), resolve trust disputes, issue injunctive relief, and handle guardianship. Equity rulings are used in these matters because the “rule” of statute law or existing case law does not cover the “balancing of the equities” between the parties that is required for a fair (i.e. equitable) outcome.

There are many customs or “maxims” that apply to and should constrain the use of these equity powers. One of the most significant of these is that “equity follows the law” which can be more fully stated as “equity will not allow a remedy that is contrary to law.” However, as Osmund noted last week, guardianship proceedings in equity were used contrary to law in the Darnell Case to defeat valid end-of-life contracts drawn by Casey and Blair Darnell.

To use a rough analogy from the sport of baseball, equity rulings of district court judges are similar to the ball and strike judgment calls regularly made by baseball umpires. Ball and strike calls are final and cannot be challenged or appealed. Without fair and impartial rulings or calls for balls and strikes, the game cannot be played. On the other hand, no judgment is required to call a batter out when a fly ball is caught. Under the rules of baseball, the batter is out when a fly ball is caught.

At the heart of the power advantage enjoyed by predators who abuse the guardianship systems and other end-of-life practices in New Mexico are district court judges whose equitable rulings violate the law so that in effect, under the baseball analogy, they declare a batter safe whose fly ball has been cleanly caught. The Commission Members should understand that such improper use of the equity powers of the district courts cannot long stand up to public scrutiny.

Another one of my associates will be providing further information next week about “WHY guardianship abuse and related improper end-of-life practices in New Mexico have come under intense public scrutiny.

WillPowerNM has 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 the first three weekly messages and by establishing and maintaining a publicly accessible and widely promoted web site on the Commission’s important study effort.

To unsubscribe from this regular email distribution of information about the new Guardianship Commission, please reply to this email with the word “unsubscribe” in the subject line of the message. To obtain previous messages, reply using the words “Message #1” and/or “Message #2” in the subject line.

Thank you very much.

Maurice, WillPowerNM
willpowernm.org