What Happens When a Guardianship Gets Contentious

Not long afterward, Kise told Larry that the other Larry in her life, Larry Franco, had begun helping her with daily tasks. At Franco’s request, APS reevaluated her; the agency again concluded that she could live on her own. Soon after — without telling her stepson — she transferred her POA to Franco. But by November she was claiming that Franco was stealing from her. Her stepson promised to visit again after Christmas, when he planned to broach the idea of moving.

Then, on Dec. 16, he learned that Kise had been hauled off and shut away.

The Legal Fight 

In the days after she became a client of Advocate Services, Larry Davis made countless calls to try to free her from custody and move her to California. When he spoke to company owner Sandy Meyer, he says, she told him she thought he wasn’t involved in Kise’s life, even though she had met him when he was researching home-care services. (In an email to me, Meyer wrote: “Mr. Davis called us that evening before we even had the opportunity to call him. He spoke with another guardian in the office Friday night and spent a half-hour yelling at me on Saturday morning, not even letting me have a chance to respond.”) He spoke with Franco’s attorney, Jill Johnson Vigil, who said she’d also been unaware that he was an interested party; because he was not related to Kise by blood or adoption, he learned, no one had been legally obligated to notify him. He sought guidance from legal experts and Alzheimer’s disease advocates, who told him to prepare for a protracted fight. 

The other side, in fact, was already depicting him as a villain. As it later emerged, Kise had been telling Franco tales about her stepson similar to those she’d been telling her stepson about Franco. The handyman’s secondhand impressions of Larry Davis were reflected in the temporary guardianship petition that Franco’s lawyer, Johnson Vigil, had filed with the state District Court. Larry was described only as someone who’d previously held Kise’s power of attorney, not as a family member; the document claimed he “took no protective action for Ms. Davis,” even though he had been advised by Kise’s doctor that she “needed to be placed in a facility.” (Larry Davis denies he’d been given such advice. Both of Kise’s doctors declined to comment for this article, citing patient privacy law.) Due to Kise’s cognitive problems, paranoia and possible possession of a firearm, there was “a likelihood of immediate and irreparable harm” unless she was assigned a guardian on an emergency basis, the petition asserted.

In New Mexico and some other states, petitioners for guardianship can request specific professionals to handle the case. In addition to Advocate Services (the most prominent of the handful of guardianship companies in Las Cruces), Johnson Vigil asked the court to appoint one of the few other local lawyers who handled such cases, CaraLyn Banks, as Kise’s attorney and guardian ad litem — responsible for protecting Kise’s legal interests. Banks, Larry learned from other lawyers, was known for her skill at fending off family members who contested guardianships in which she was involved.

District Court Judge James T. Martin, who knew the players from previous appearances, granted Johnson Vigil’s request. The next step would be a hearing to determine whether the guardianship should become permanent. In order to secure Kise’s release, Larry would have to convince the judge — against the arguments of the home team — that she would be better off in his care.

However they begin, bad professional guardianships tend to be devilishly hard to get out of — and sometimes end tragically. Take the case of retired banker Denise Tighe, who fell under guardianship in 2012 after exhibiting symptoms of delirium during a bladder infection. After she was dragged screaming to a nursing home in Weatherford, Texas, her friend Virginia Pritchett found her lying on a mattress on the floor. “She was a wealthy lady who could have afforded 24-hour home help,” says Pritchett, who, along with other loved ones, was soon prevented from seeing her. “When her birthday came up, I called and said, ‘Can I bring her a gift?’ They said no.” Pritchett unsuccessfully fought state and local governments on Tighe’s behalf, but Tighe died in the institution, after two years of enforced solitude.

Dysfunctional professional guardianships often have common traits. An elderly person with no nearby relatives may begin showing signs of dementia or develop a medical condition that temporarily clouds her mind, and someone (APS, a concerned neighbor, a hospital administrator) petitions the local court to appoint a guardian. Or a relative may petition to become a guardian, but a judge rules that a professional would be more appropriate. Or two relatives file petitions, and the judge resolves the conflict by appointing a professional.

The guardian then moves the person to a nursing home or other supervised facility, even though she may still be capable of living at home or have friends or family members willing to care for her. Those loved ones are falsely portrayed as negligent or malicious and are often restricted or banned from contact with the person under guardianship. The person may be drugged, ostensibly for therapeutic reasons but perhaps also to ensure docility and skew cognitive tests. The guardian enriches himself and his collaborators by selling the person’s property (thus making more cash available) and billing her for a dizzying range of services — including defending the guardianship in court if the family contests it. “The lawyers can’t make it to the bank fast enough,” says Elaine Renoire, president of the National Association to Stop Guardian Abuse.  

Still, troublesome guardianships don’t always arise from malice. “Guardianship cases are typically messy, because they occur when there’s been a breakdown in other systems,” observes Syracuse law professor Kohn. Well-meaning family members can make questionable decisions; vulnerable adults can say contradictory things. Those in the guardian’s camp may sincerely believe they’re doing the right thing.

“I saw this case as an example of what happens when family members do not fulfill their fiduciary duties to an elderly relative who is in need of assistance and the court is asked to step in,” Banks told me in an email. “Mr. Davis’ conduct before the court proceeding was filed was a concern to everyone involved.”

Nonetheless, Kise’s case illustrates that the system — to a degree that varies state by state, even district by district — has deep structural flaws. It can reward those on the guardian’s side for taking a harsher view of the person’s loved ones than may be justified and for resisting efforts at compromise. It lacks mechanisms to ensure accountability or to reduce conflict. As a result, it too often seems to confirm family members’ sense that the deck is stacked against them.

The Financial Toll

In January 2017, Larry and Marcia flew to Las Cruces and hired an attorney, elder-law specialist Cristy Carbón-Gaul. Then they drove to the facility where Kise was being held, Haciendas at Grace Village. Kise was housed in a locked unit for residents with severe dementia, most of whom could barely communicate. The place was clean and airy, but Larry thought Kise looked haggard and unkempt. “They told me I could go home on Monday,” she let him know, “so I packed my bag and waited. But then they said the next day, and the next. They think I’ll forget.”

Halfway through the visit, Larry got a call from Carbón-Gaul: “The lawyers on the other side are up in arms, saying you’re trying to take Kise out.” Apparently, a Haciendas staffer had called someone to ask if the Davises could take Kise to lunch, raising suspicions of an escape plan. Larry says he had no such plan, but the misunderstanding cost him and Kise hundreds of dollars in fees paid to their respective attorneys.

A few days later, Larry spoke again with Franco; after comparing notes, they realized that Kise had been making delusional claims about each man to the other. Franco and Johnson Vigil told the judge they wanted Kise to go to California with Larry. But now Banks objected, citing her responsibility to protect Kise’s interests.

A hearing was set for Feb. 20 but was canceled due to a missing doctor’s report. Banks, however, produced a 17-page paper describing the perilous state of Kise’s affairs — including clutter throughout the house, rotting food in the fridge and a dead cat in the freezer — and put the blame squarely on her stepson. Larry had abdicated his duty “to protect Kise from herself and others,” Banks wrote. As evidence, she cited his failure to supply Kise with home care and his repeated loss of power of attorney (both of which, Larry notes, resulted from Kise’s actions, not his own). She also accused Larry of “agitating” Kise by discussing her case; Larry says he was simply treating her like an adult.

Larry yearned to tell his side of the story in court, but Carbón-Gaul warned that would be useless; Judge Martin, she said, had little patience for such back-and-forth. Frustrated, Larry added a new attorney to the team: Peter Goodman, a retired business lawyer he’d met at the farmers market; his knowledge of Japanese culture seemed like a potential asset. At the next hearing, in March, Goodman presented an issue that Larry had discussed with Banks and that Banks herself had mentioned in her report: the possibility that if Kise’s dementia eventually left her unable to communicate in English, she would do better at a facility — like one Larry had found in Sonoma — where some of the residents spoke Japanese. To Larry’s delight, Judge Martin agreed, though he suggested it “would be better” if Kise remained under a professional guardianship after relocating to California. He ordered both parties to cooperate in trying to arrange such a move within 120 days.    

But at a hearing in April, Banks raised another roadblock. Memory-care facilities in California, she said, were more expensive than those in New Mexico. In order to ensure that Kise — whose assets totaled about $300,000 — didn’t run out of money, it would be necessary to sell her house. The property didn’t go on the market until June, and it sat there for months. (In an email, Banks explained that the contents had to be inventoried and sold off, and repairs made to the structure, before the house could be sold.)

Meanwhile, Kise languished. Although she’d been transferred to a new unit, the other residents were still far more debilitated than she was; she spent most of her time reading in her room. (In a court hearing, her case manager testified that Kise was offered a room in the highest-functioning unit when one opened up, yet refused to go. Kise and Larry both deny this.) Friends sometimes visited, but she was forbidden to leave the building. Goodman recalls sitting with her as another resident watched a TV show for schoolkids; the woman asked Kise if she was one of the characters: “Kise looks at me and says, ‘You don’t get smarter in here.’ ”

As the 120-day deadline came and went, Advocate Services made it clear who was in control. When Larry suggested reducing Kise’s dosage of a sleep aid that could exacerbate dementia, he says, her case manager told him — correctly — that only the guardian could decide on medical issues. When attorney Goodman provided a list of items that Kise wanted to take to California, the case manager emailed: “This behavior is to stop now — no more talking about taking anything.” And when Goodman asked the manager about the state of Kise’s finances, she scolded him for wasting her time and thereby increasing the fees charged to the estate. “You’ll find out about her assets,” she wrote, “upon her death.”

The case manager, who no longer works for Advocate Services, declined to comment for this article. Company owner Meyer, however, blames Larry and his team for the conflicts. “We performed our duties in the best interest of Kise Davis and her reported wishes to us,” she emailed me. “Unfortunately, Mr. Larry Davis felt that we had gone behind his back.… We always make every attempt to work with family members in a collaborative effort to meet the ward’s needs.… [This case] became contentious not due to our actions.”   

A System Under Scrutiny

Kise’s house finally sold in November 2017. At Goodman’s suggestion, Larry hired a pair of experienced guardianship litigators to fight the next phase of the battle — trying to make sure that Kise’s transfer, which Judge Martin had called for back in March, was carried out. But the next hearing was canceled when the judge had a scheduling conflict, and the case continued to go nowhere.

By then, guardianship in New Mexico was under extreme scrutiny, thanks in part to an investigative series by the Albuquerque Journal (which later ran an extensively reported story by Colleen Heild on Kise’s plight), as well as the Ayudando and Desert State Life embezzlement outrages. A commission convened by the state Supreme Court was developing proposals for regulatory reform. Legislators introduced a comprehensive bill (strongly backed by AARP New Mexico) to overhaul state guardianship rules, which passed in a stripped-down version in February 2018. The new law did make some improvements: Among other things, it required court hearings, formerly closed, to be open to the public, and a wider range of family members to be notified of a pending guardianship (which might have enabled Larry to intervene earlier). But a provision that would have established a statewide record-keeping system for guardianship, crafted to prevent embezzlement and to rein in excessive charges, was rejected as too expensive.

Since guardianship scandals erupted in the news 31 years ago, similar scenarios have played out across the country. “States pass pretty laws, but there’s no meat on the bones,” says Bernard Krooks, a past president of the National Academy of Elder Law Attorneys. Monitoring and enforcement mechanisms are often inadequate, as are provisions for training guardians in the rules they’re supposed to follow.

That’s beginning to change. In 2011 the National Guardianship Network (a coalition of organizations, including AARP, dedicated to improving guardianship law and practice) launched a project known as Working Interdisciplinary Networks of Guardianship Stakeholders, or WINGS — a collaboration of courts, government agencies and civic groups in 25 states that’s working to reform guardianship systems. And Congress, last October, passed the Elder Abuse Prevention and Prosecution Act, which includes a section calling for the establishment of programs to assess the workings of state guardianship systems, to develop recommendations for improvement and to establish guardianship-oversight demonstration programs nationwide. But effective oversight requires good information, and most states still fall grievously short regarding this.

“We don’t really know how many guardianships there are, let alone how many are going well and how many are problematic,” says Diana Noel, a senior legislative representative for AARP. This year the Albuquerque Journal found that Advocate Services — the guardian for Kise — had failed to file annual reports for 50 or more cases going back to 1990. “We did get behind, and we’re catching up,” Sandy Meyer told the paper. Such laxity and lack of follow-up by authorities are not uncommon among guardians nationwide.

A Family Reunion

On Feb. 26, 2018, 11 months after he ruled that Kise should be moved to California, Judge Martin held another hearing. Larry testified, describing his close relationship with Kise and his efforts to ensure her well-being. Franco and two of Kise’s friends spoke as well. They all agreed that living near her family would be in Kise’s best interest. Banks disagreed, but the judge said he’d intended for Kise to be moved soon after his original order and was “disappointed” that she hadn’t been. He appointed Larry as Kise’s guardian and ordered that she be transferred promptly.

The next day, Larry gave Kise the good news: After more than a year of captivity, she was going home with them. “You saved my life,” she told him. At first she moved into Larry and Marcia’s home in Sonoma. Then, when a space became available, she relocated to an assisted living residence, where the activities include gardening, musical performances and outings. Kise’s loved ones can visit anytime, and she can visit them. “This is a nice place,” she says. “It’s like going to heaven.”

At 87, Kise is physically healthy, and Larry hopes she’ll remain so. But her freedom came at a considerable cost. He spent more than $50,000 on legal bills and other expenses; the charges to Kise’s estate during her ordeal are expected to top $140,000. And that’s not counting the existential toll.

“They took 14 of Kise’s last months away from her and made it a nightmare,” says Larry, who testified before New Mexico’s guardianship commission at last year’s hearings. “It was like a hostge situation. No one should have to go through what happened to us.”

Learn More About Family Caregiving

• A legal checklist for family caregivers
• Having an estate plan can help split assets without dividing siblings
• What caregivers should know about managing a loved one's money