Courts Ignore Legal Estate Documents

It’s all about the money in probate

Who makes money when a judge orders a person – usually an older woman – into professional guardianship?Who makes money when the judge makes the discretionary, and radical, decision to revoke and not honor a ward’s perfectly executed existing legal documents including powers of attorney, trusts, property ownership that were written and signed while the ward still had mental capacity?

According to research conducted by Americans Against Abusive Probate Guardianship, 95 percent of the time existing valid, legal documents – created by the wards in case they are put under guardianship – are ignored by judges when ordering another life into their overly secret court system.

In so doing, the judge instantly transforms that guardianship case from being one of short, inexpensive, brief judicial administration, which follows the wishes of the incapacitated or deceased, into the much more lucrative, lengthy, expensive, adversarial litigation, denying the ward due process by failing to honor their legal documents. It is not uncommon for such court-sanctioned litigation to last for years, sometimes decades, as families desperately seek justice and due process for their elders, generating wealth for the court insiders.


Often, in order to receive their inheritances after the ward is dead, parties are forced by court-appointed attorneys to sign legal releases, denying heirs their right to appeal. Most AAAPG complaints in New Mexico record the use of judicially compelled “hold blameless” agreements for the court appointees before the District Court judge will agree to release inheritances to the heirs. Because the cases are overly sequestered, the public is unaware of the serious risk that guardianship creates, endangering all New Mexicans’ transference of their family assets to their chosen heirs.

Who makes money when the adult children of the ward are forced go to court to contest the judge’s decision to give complete – financial, medical, emotional, physical – power over their loved one to a stranger, denying the ward’s wishes? The insiders.

Who pays? Everyone else, including taxpayers.

Given the dire straits of New Mexico’s judicial budget it would behoove all New Mexicans to rein in the vast amounts of court time and money guardianship cases cost us all.

At a March 22 town hall meeting, panel member and retired Judge Ted Baca announced that 35 percent of the guardianship cases in the 2nd Judicial District (Bernalillo County) were “problem cases.” AAAPG statistics indicate that nationally 7 percent of the total guardianship cases are estimated to be fraudulent and thus prone to looting by insiders. The fact that New Mexico has five times the amount of problematic guardianship cases as the national average could potentially indicate that an estimated $150 million annually in New Mexico can be converted from family assets to third-party professionals who make a handsome living off the way guardianship is currently conducted here.

It also means that each of New Mexico’s 13 District Courts – which receive a single budget each year to handle criminal, civil, family and children’s courts – might do well to review the amount of time their civil divisions spend on guardianship cases.

When civil court guardianship cases become problematic, they go from judicial administration – the original intent of guardianship statutes and rules – to lengthy, time-consuming adversarial litigation. The courts themselves could potentially solve much of their budget shortfall by ordering their judges to honor the incapacitated or deceased individuals’ wishes as expressed in their legal documents. District Court judges must not let these cases disintegrate into what often amounts to gratuitous – and lucrative – litigation that profits only the court insiders at the complete financial, medical, emotional and physical expense of the family the court is allegedly “protecting.”

Kelley Smoot Garrett was a panel member at the March 22 town hall meeting about guardianship sponsored by the Albuquerque Journal.