Guardianship Study Commission Message #7

Guardianship Study Commission Members, News Media Professionals, Others:

At WillPowerNM, we formed as a private Citizens Parallel Investigation Committee to the New Mexico Supreme Court’s Adult Guardianship Study Commission. We did so out of skepticism born of experience that the courts could adequately reform themselves. A repeated theme heard from victims of guardianship and advocates for reform is that the secrecy of the courts must end, if the public is to be given a fair chance whenever they are forced to participate in court-ordered guardianship proceedings.

Last week, we wrote about how the courts had finally decided to obey both Rules and Statutes to make public:

  1. Names of the wards;
  2. Duration of the guardianships or conservatorships (or both); and
  3. The case dockets

So that now, for the first time that we are aware, the courts are actually obeying the laws that govern them, in reporting to the public the names of the wards, their guardianship’s duration, and publishing the case dockets.

 

One step forward, many steps backwards…

But the Commission, which is primarily composed of lawyers, judges, and other professionals who make a living from the existing guardianship system, continues its penchant for keeping as much information as possible from the public. So it was hardly surprising when the Commission stuck with its modus operandi and only published its “meeting materials” for the June 2, 2017 meeting on June 1st.

Then, when perusing the June 2nd agenda, we noticed the Commission chose to mischaracterize a PhD as a physician, giving the public the false impression that one has to have medical training to certify a person incompetent. In fact, there is no statute or rule requirement that a person with medical training report to a Judge making a legal determination of ‘incapacitation.’ The statute is clear:

  • NMSA 45-3-303(D): The person alleged to be incapacitated shall be examined by a qualified health care professional appointed by the court who shall submit a report in writing to the court.

When the June 2, 2017 meeting materials are reviewed, it turns out what the Commission promises in its agenda is going to be a “physician” is listed as “Rex M. Swanda, Ph.D.: QHCP Perspective.” (See top of page 4.) Someone needs to inform the Commission that a PhD is not a “physician” and that whomever is preparing the Commission’s agendas and related documents should take greater care so as not to mislead the public.

 

Please, no names, unless the Commission chooses to name them.

Looking further at the Adult Guardianship Study Commission’s June 2, 2017 meeting materials (see pages 10-11) we found out that WillPowerNM is not the only parallel committee following the Commission, but there is an “Adult Protective Proceedings Task Force” that “grew out of a November 20, 2013 legal forum entitled Critical Issues in Adult Protective Proceedings: A Forum to Explore Emergent Issues and Recommend Solutions.” There is an on-going discussion about this Nov 2013 Forum, as well as noting:

  • “The ninety-three (93) Forum participants included judges, attorneys, Adult Protective Services and Court Administration staff, geriatric care managers, a neuropsychologist, and other professionals….
  • “After reviewing recommendations, participants from the forum formed an unofficial interdisciplinary committee, not unlike the Commission, to further refine the recommendations and pursue their implementation. The committee convened on January 24, 2014 as the Adult Protective Proceedings Task Force….

Nary a member of the public, nor a Ward, nor any Wards’ family members were included in this group that is “not unlike the Commission” and has been meeting since November 2013! As far as WillPowerNM is aware, this is the public’s first notice that this group of professionals involved in guardianship, had been meeting for the past 4 years, and were far along in developing recommendations that the Commission appears ready to adopt without much further ado.

 

Recommendations from non-public Task Force:

Just what are the recommendations this nearly 4-year old private Task Force, to which no member of the public has been admitted or participated in any way shape or form, urging the Commission to adopt?

The very first recommendation from this group of professionals – approximately 80% of whom are attorneys – is to provide judicial immunity for themselves and their “professional colleagues” in guardianship! Yes, the attorneys want to add a new law that will state: (See top of Page 15)

§ 45-5-105.1 Immunity

When acting within the scope of their appointment, a guardian ad litem, court visitor and qualified health care professional has absolute quasi-judicial immunity. A suit for alleged misconduct must show that the person or entity acted clearly and completely outside the scope of their appointment.

If this law were to be adopted – in any way, shape, or form – to grant any type of immunity to attorneys and professionals – this will be yet another license to steal, and will be one more example of the many Rules and Statutes that put attorneys and judges above the law, not compliant the way they have quelled the rest of the population. (A small sampling of New Mexico’s Supreme Court-authored Rules that create an unequal playing field, where the attorneys have all the advantages and their clients are held to a much higher standard, see NMRA 16-106 (B)(5), NMRA 16-107(A), (H); NMRA 17-204 (A), (B)(2); NMRA 24-109, especially paragraph (D), are just a few of the many Rules the NM Supreme Court has created over the years that favor attorneys and judges over the rest of the population.)

There are other disturbing recommendations that greatly increase the power of the Court and their appointees, such as the Guardian Ad Litem must be an attorney. Also, according to this attorney “wish list” of changes, the Ward will no longer be able to have their own attorney represent them in any guardianship proceeding – that critical role will only be available by Court-appointment. So you may have used the same attorney for 30 years, but when it comes time to present your incompetence case to the Judge – the Judge will chose the attorney to represent you – not you. Talk about self-dealing and conflict of interest, not to mention undue influence!

There are many other recommendations WillPowerNM finds very troubling but we’ll limit it to just these few examples, as there just isn’t enough space or time to analyze why each individual recommendation, from the point of view of advocates and guardianship victims, is completely wrong, and the entire work of this private lawyers Forum, morphing into a private Task Force, should be completely rejected by the Commission.

The recommendations of the private Adult Protective Proceedings Task Force represent blatant self-dealing, undue influence, and are a complete and total conflict of interest that provide zero benefits to the Ward or their family members. All of the Adult Protective Proceedings Task Force recommendations are 100% for the benefit of the attorneys, and the other professionals who currently make a living off the guardianship system.

 

Who are these people?

When looking into the composition of the private and repeat-offender of New Mexico’s Open Meetings Act that is first a Forum, that morphs into a Task Force, it becomes clearer why the Commission will not allow any guardianship victims to name names, or talk about case details. It appears the Commission is seeking what is known as “plausible deniability” that it never knew that the very people whose recommendations the Commission is planning to adopt, are the very people that will not only benefit the most from the adoption of the new rules, but are also the very attorneys, guardians and Judges that advocacy groups such as Americans Against Abusive Probate Guardianship (AAAPG) have registered the most complaints about.

Looking at the bottom of page 10 and the top of page 11 of the June 2nd Commission Meeting materials, the following names jump out from the (complete? partial?) list of the private Adult Protective Proceedings Task Force members:

  • Ellen Leitzer, Executive Director of the nonprofit Senior Citizens’ Law Office, Inc.
  • Mary Galvez, professional guardian and court visitor;
  • Nancy Oriola, LCSW, professional guardian/conservator and court visitor;
  • ….
  • Gaelle McConnell, private practitioner, and
  • Patricia Galindo, Attorney for the Administrative Office of the Courts, [both of whom] recently left the Task Force to participate on the Commission.

WillPowerNM and doubtless AAAPG would have loved to have been included on this private Forum turned Task Force – if only we had known these meetings were taking place. But at least this answers our question as to where the Supreme Court found a group of attorneys ready to serve on the Commission. There’s the added bonus that the attorneys have already done all the work (in secret, without any public input) as to how the attorneys and related professionals can best benefit from any changes the Commission recommends.

Which brings us back to the November 20, 2013 meeting that started off this self-dealing, conflicted, undue-influencing, anything-but-disinterested Forum turned Task Force.

 

Different groups, same stakeholders

The November 20, 2013 meeting that launched these recommendations to the Commission was hosted by the New Mexico Association for Continuity of Care whose “meetings are open to members only,” showing the public is excluded from a significant forum that is developing recommendations to the Commission. Additionally this important inaugural meeting qualified attorneys to receive both CLE (Continuing Legal Education) and MCLE (Minimum Continuing Legal Education) credits, enhancing the value of this meeting for attorneys, and again stacking the deck against the public.

Once the make-up of the November 20, 2013 panel is considered it is clear there are a core group of attorneys, guardians, and at least 1 judge, that are in a comfortable earnings cycle that they don’t wish to disrupt. From the “Forum Registration Form” put forth by the NM Association for Continuity of Care – which doubtless made money by hosting this forum – among the panel members and presenters were:

  • Dr. Rex Swanda, Ph.D. is a neuropsychologist who is Director of the Neuropsychology Consultation Program at the New Mexico VA Healthcare System and is a Clinical Assistant Professor at the UNM School of Medicine, Department of Psychiatry.
  • Mary Galvez is a Nationally Certified Guardian and Nationally Certified Manager of Care and routinely serves as court-appointed guardian and visitor.
  • Judge Alan Malott practiced law in New Mexico for 30 years and since 2009 has served as a Second Judicial District Court Judge where he presides over adult protective proceedings.

Rex Swanda is the PhD being presented to the public by the Commission as a “physician” and the names Mary Galvez and Judge Alan Malott are familiar to anyone following the guardianship stories in the Albuquerque Journal. Interestingly, Mary Galvez’s website doesn’t list a single recommendation from one of her many Wards, or their family members. In following what appears to be standard professional practice, all of Mary Galvez’s recommendations come from attorneys or other guardianship professionals.*

 

Birds of a feather, flock together

The one case that ties all the people together is the one currently on-going in Judge Alan Malott’s sequestered courtroom: D-202-CV-201304646 Leonie Rosenstiel (PR) v. Decades LLC, et al.

As reported in the Albuquerque Journal on May 22, 2017:

  • The daughter of a deceased Albuquerque author suing a commercial guardian and conservator firm is questioning the impartiality of the judge in the case, citing in part his appearance in April with representatives of the guardianship industry at an Albuquerque Lawyers Club panel discussion.
  • Attorneys for Leonie Rosenstiel are asking District Judge Alan Malott to recuse himself from presiding over her lawsuit against Decades LLC in part because of his participation on a panel whose explicit purpose “was to address newspaper articles about matters that included the Defendants’ (Decades LLC) performance as a guardian or conservator,” according to a motion filed May 15.
  • The panel discussion was titled “The Truth Underlying the Reporting on Guardianships/Conservatorships in New Mexico.”
  • The panel’s membership included Gregory MacKenzie, one of the lawyers who has been representing Decades in the pending lawsuit filed by Rosenstiel in 2013. Rosenstiel’s lawsuit contends that Decades and its CEO, Nancy Oriola, were negligent in handling her mother’s assets and in administering her guardianship and conservatorship.

How incredibly convenient for Nancy Oriola, the CEO of Decades Inc, to have been part of the “Task Force” that recommended giving absolute quasi-judicial immunity to herself! Talk about self-dealing and conflict of interest, to be part of a group that writes a new law stating, “A suit for alleged misconduct must show that the person or entity acted clearly and completely outside the scope of their appointment.” (See top of Page 15 for new statute that grants this privilege of judicial immunity to court-appointees in guardianship cases.)

A close observer of guardianship in New Mexico will note not only frequent court-appointee and recipient of numerous complaints, attorney Greg MacKenzie, but a look at the case docket in Rosenstiel v Decades Inc reveals that representing Leoni Rosenstiel against Greg MacKenzie’s client Nancy Oriola and her company Decades LLC, are attorneys who have been involved with other contested guardianship cases, as well as the unusual (and non-guardianship) cases concerning the Juan Tafoya Land Corporation. (An interesting question to explore is ‘Who owns Decades LLC? Are any shares held by other attorneys, judges, or professionals associated with the guardianship industry?)

The plaintiff’s 1st listed attorney David Garcia was the attorney who held the door open for frequent Court-appointee Darryl Millet to latch onto the Spanish Land Grant company – the Juan Tafoya Land Corporation back in 2007, D-1314-CV-200701326 Baros v Juan Tafoya Land. (You can read WillPowerNM’s coverage of the Juan Tafoya Land Corporation and how it is related through its infamous attorney Darryl Millet, to some of the most hotly contested guardianship and trust abuses conducted by the 2nd Judicial District court here, here and here.)

The plaintiff’s 2nd listed attorney is Dan Pick. Again, carefully observers will note that Dan Pick came into prominence at the March 22, 2017 Townhall meeting where AAAPG distributed a brochure, containing an engagement letter for Greg MacKenzie, dated Sept 19, 2013 where by MacKenzie cooperates and works with Dan Pick, and both attorneys recommend Darryl Millet to be appointed Trustee. (See 2nd page, middle column.)

Note attorney Dan Pick was the draftor of Wills and Trusts for not only Sue A Smoot but also Casey & Blair Darnell, as well as other victims who have registered complaints with AAAPG. An unusually high percentage of Pick’s Wills and Trusts appear to end up in court after Pick’s clients deaths.

See NMRA 16-107 Conflict of interest; current clients for why Greg MacKenzie should not have allowed himself to have been engaged to represent Kelley Smoot Garrett – who was following legal instructions given by Dan Pick – while MacKenzie was opposing Dan Pick’s client Leoni Rosenstiel in a contemporaneous, previously-existing court trial, not the least of which is that neither Kelley nor Leoni Rosenstiel (and presumably not Nancy Oriola) gave their informed, written consent to their lawyers, approving of the blatant conflict of interest, because neither lawyer informed them of the conflict, and obtained their consent in writing, as required by NMRA 16-107(B)(4).

The upshot of MacKenzie and Pick disobeying the Rules of Professional conduct is that not three months after Dan Pick launches a large, costly and sequestered lawsuit against a client represented by Greg MacKenzie (D-202-CV-201304646 Leonie Rosenstiel (PR) v. Decades LLC), neither MacKenzie and Pick have trouble flipping their allegiances and working cooperatively on a case that Dan Pick spent the previous 16 years grooming for the court (D-202-PB-201300457 IMO Sue A Smoot Revocable Trust.)

In our opinion, Rosenstiel v Decades LLC is just the latest example of staged litigation in order to drain what remains of money from Annette Rosenstiel’s estate. These same attorneys who accuse families of being dysfunctional, self-dealing, and exerting undue influence are simply reflecting their own behavior.

Anyone want to take bets on how soon the new Immunity provisions of 45-5-105.1 will be enacted? Our bet is that “absolute immunity” will be enacted before the money runs out in Annette Rosenstiel’s estate, and that Judge Malott will find for Decades Inc and its CEO Nancy Oriola, then make Annette Rosenstiel’s estate pay for all the attorneys fees this half-a-decade-long staged litigation has created.

 

What is the public to do?

If you are a member of the public — or especially if you are an attorney or a judge — and reading this makes you mad at the way the public is being treated by these self-dealing, self-enriching, self-interested guardianship industry “professionals,” attorneys, and judges — then please attend the next public hearing of the New Mexico Supreme Court Adult Guardianship Study Commission, to be held:

Over the next 5 weeks, please periodically check this website to see when or if they announce where the next meeting will be. Scroll down to the section marked Meeting dates to locate where this next meeting of this secretive, late-announcing “public” Commission will be located this time.

If you can’t make this meeting, or you can’t wait 5 weeks to register your displeasure and make your complaint known to the Commissioners, then use the Commission’s “Comment Form” by going to this link, and scrolling all the way down to the end, where you will be asked to submit your Name, email address, and your phone number — all of which will be made public by the Commission, so beware!

Here is the Commission’s complete contact info so you may choose a method to contact them that best suits you:

  • Joey D. Moya, Clerk
  • New Mexico Supreme Court
  • P.O. Box 848
  • Santa Fe, New Mexico 87504-0848
  • nmsupremecourtclerk@nmcourts.gov
  • 505-827-4837 (fax)

The utter lack of consideration for the privacy of the members of the public who wish to speak out against the Court’s guardianship abuses is in-line with known treatment of New Mexico’s Judges and their Appointees shown to the Wards and the families that the courts have conscripted into guardianship. It’s the same callous, thoughtless, and dismissive manner judges and their appointees treat their Wards and the Wards’ families, so you might as well get used to it, as that seems to be the new “normal” for today’s courts in New Mexico.

And if this really makes you mad, then:

  1. Show up at the July 14, 2017 Commission meeting, rumored to be held in Santa Fe;
  2. Send an email, write an old-fashioned postal letter or send a FAX to the Commission, asking them to reject all recommendations made by the private, for “industry professionals and lawyers” Adult Protective Proceedings Task Force, most especially the recommendation that all court-appointees be given Absolute quasi-judicial Immunity.
  3. Demand restitution for all past and current victims of the courts’ predations upon innocent seniors, the mentally-ill, the disabled, and anyone else a Judge decided was suffering from “brain damage.”

Working together, in one unified voice, we are going to reform this terrible situation that the courts have let fester for way too long now.  And it’s going to happen faster, if as many people as possible write, phone, email, or visit an upcoming Commission meeting to voice their requirements for reform.

Thank you, on behalf of all the past & current victims of court-sponsored guardianship abuse.

_____

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 this weekly message and by establishing and maintaining a publicly accessible and widely promoted web site on the Commission’s important study effort.

 

* Only first names are used to provide all of Mary Galvez’s recommendations, but it’s obvious that Sarah Traub (Co-Chair of private, non-public “Adult Protective Proceedings Task Force”), Susan Stewart (owner of local homecare agency and frequent recipient of complaints), R Ortega MD (court-appointed actual physician), Laurie Hedrich (local elder-law attorney and frequent court-appointee), and Bruce Puma (local elder-law attorney, frequent court-appointee, and frequent recipient of complaints by victims) are all major players in Albuquerque’s guardianship industry. Interestingly, a “Sydney” is quoted as a legal assistant/conservator representative, and a Sydney Weldon was not only court-victim Sue Smoot’s long-time neighbor, but also Sue’s house-sitter and accountant when Sue traveled. Sydney may have been the court-appointed Trustee’s entree into Sue’s estate. It is noted that Sydney works for Mary Galvez, so Mary has pulled a typical guardianship trick: get the person dependent upon you for their livelihood to write you a recommendation.

5 comments for “Guardianship Study Commission Message #7

  1. Judy
    June 7, 2017 at 6:12 pm

    I share most of your concerns. However, the proposed language of the statute– that marked in red–is really nonsensical. Quasi means ‘seeming’ or ‘apparent,’ not actual. Combining quasi with absolute results in an oxymoron. If enacted, it could never be enforced as the term is contradictory.

    • Roger of Salisbury
      June 7, 2017 at 7:41 pm

      We do not disagree with you Judy that the proposed language of the statute 45-5-501.1, “Absolute quasi-judicial Immunity” does not make sense.

      Are you arguing because the language proposed by *Attorneys* — not us — doesn’t make sense, we should allow the proposed statute become Law?

      In our opinion, that would be reckless and would subject many more wards – especially wards of wealth & means — and and their families to the same kind of plundering of estates and trusts, similar to that experienced by the Darnell family (as documented in the Albuquerque Journal in Creators Syndicate columnist Diane Dimond’s series http://ABQJournal.com/guardians) and Leoni Rosenstiel, the sole child of Annette Rosenstiel (also documented by the Journal) and many other Wards who have experienced the hell of having absolutely no control whatsoever of their loved ones, even though frequently they were named by their parents to have End-of-Life power by their parents.

      The unfortunate reality is that currently, NMSA 45-5-303 allows the person who has the FIRST priority ranking to become your guardian, your conservator, or even your successor trustee, to be *any choice of any Judge.*

      The SECOND priority ranking goes to your choice as properly executed in your Will, your Trust, your POA(s) – whether Durable, or not — and many more contracts that people sign to provide for the correct transfer of their property after their death to their chosen heirs.

      As it currently stands — not only in NM, but in most other states excepting Utah and Wyoming — a Judge can overrule and render NULL and VOID your valid, properly-stated, legally-binding, end-of-life contracts, for absolutely no reason at all. Thus any estate planning is a useless exercise, as the person who has first priority to choose who is/are your Guardian(s), who your heirs or beneficiaries — is a Judge.

      Statistics show that in New Mexico most guardianships — especially those of people of wealth & means — occur inspite of the fact the Ward made valid, properly executed Wills, Trusts, POAs which end up voided by Judges. All too frequently the Ward’s or deceased’s choices to administer the Ward’s or deceased’s most precious wishes — how they want their property distributed — are voided, and replaced by whatever the Judge chooses.

      This happens with no oversight whatsoever: no oversight of the Judge, no oversight of the Judge’s appointees – no way to hold anyone accountable — either during, or after, the events.

      These Judge’s appointees have the full power of the law to spend your money, sell your assets, or disallow you to see and associate with whomever you may wish.

      This happens because the Judges and the court-appointees (both attorneys and other “professionals”) do whatever they want — often with great contempt for the family that these “professionals” characterize as “self-dealing” and exerting “undue influence” over the Wards, when that is merely these “professionals'” projection of their inhumane treatment of the vulnerable & defenseless, projected outward, onto their “clients.”

      If you find any part of the above scenario acceptable, then you may be an attorney, or judge, or guardian.

      If you believe the laws are being followed and that it’s simply the case of a “few bad apples” or the Wards’ and their families’ fault, then I invite you to sign up to receive our weekly newsletter (if you are not already signed up) and join us as we make public how guardianship and conservatorships are actually practiced in New Mexico, with a special focus on the 2nd Judicial District (Albuquerque/Bernalillo County.)

    • Cliff
      June 8, 2017 at 4:01 pm

      Thank you Judy. “Nonsensical ” I don’t know if it’s intentional, but a lot of “Law” reads vague,easy for misinterpretation.Having a common database for the meaning of the assorted “Legal Definitions” the public has to encounter would be useful. Example: #1 A out of state Generation Skipping Trust “G S T”. In a Guardianship case who gets to interpret the language in the G S T ? The public would believe the language in the Trust Document would “Map” that out, clearly stated in the Trust will be, what State’s laws are to be followed if there are any questions ? Example #2 Perhaps the G S T has a clause like “incident to illness” Who gets to interpret a vague statement like that ?The out of state Trust officer ?The local Judge ? and what does the statement mean ? what was its “intention “?The public would think that the “Principal” could be spent on medical expenses , others may take a more “liberal” interpretation,maybe even “code” bills to appear medical. Yes we all need to have the same understanding, “a meeting of the minds” .I would advise anyone entering into any “contract, relationship,business, etc.” clearly mark the exits before entering.

    • June 12, 2017 at 10:25 pm

      Unbelievable! Can we pardon them any further than the latitude they already have. They legally steal the Estate assets, sell them off, keep absolutely the most inept record keeping verified by Peter Brunson, Expert Forensic Accountant; testifying to Judge Brickhouse that Darryl Millets “IOLTA” accounting of your Estate assets, “DOESN’T” meet the National Fiduciary Standards Model and Format. Copies of several families accounts, under the administration of Darryl Millet, not only can they not get the annual required by law reports, the Judges have been notified of his violations of Trustee/Conservator duties, neither Judge Brickhouse or Nash have made him abide by the laws, nor did they Sanction him as the Motion of Contempt with Sanctions requested.

      The supreme Court sat a panel of Foxes in the Henhouse. The problem has been well established that the only reason this Elder abuse and Exploitation has gotten the public attention it has, is because the New Mexico Judges are so deep into the corrupt collusion, appointing people who will fund their next campaign.

      The only way to stopping this problem is incarcerating the Judges and Attorneys who daily break the law. The statements that families get a say in the court is the biggest lie in reporting History. People are in Jail for Contempt trying to speak out in Guardianship courtroom hearings. Judges will not allow the truth to be told, ignores the motions of facts, and gives crooked attys Immunity.

      Rise up America! Time for Trump style Town Hall uprisings!!!

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