During a sometimes contentious hearing last week in Dorris Hamilton’s
high-profile guardianship case, the 93-year-old former educator and
civil rights pioneer had a few words for the judge.
Her voice crackled a bit over the phone line during the telephonic court proceeding. But her intent was clear.
She asked that a Las Cruces attorney responsible for helping put her into legal guardianship in 2019 be removed from the case.
“I do not want CaraLyn Banks in my business anymore because I found it
to be unfair,” Hamilton told Chief District Judge Manuel Arrieta of Las
Cruces. “Please listen to me.”
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| Dorris Hamilton |
Last summer, after agreeing to replace a corporate guardian with
Hamilton’s only son, Arrieta told the parties he would review Banks’
continued representation in six months.
During Tuesday’s hearing, the judge opted to keep Banks on the case a
while longer despite Hamilton’s plea and the fact that attorneys from
the nonprofit Disability Rights New Mexico organization have stepped in
to represent her.
“The court is overseeing the best interests of Mrs. Hamilton,” Arrieta told the parties.
The judge took the opportunity to criticize Hamilton’s son and news
media coverage of the case. He also questioned legal fees billed to
Hamilton’s mother’s estate by an attorney who helped Rio Hamilton win
his legal battle to become her guardian. He is now authorized to make
medical and personal decisions for his mother and chose a new
conservator to manage his mother’s finances.
The case, which is among 5,760 active adult guardianship and
conservator cases in New Mexico, has made national news as calls for
reform and more accountability in guardianship systems have echoed
around the country.
Advocates, including those in New Mexico, have sought more family
involvement and to give a greater voice to so-called protected people
deemed mentally incapacitated and in need of someone to make decisions
for them.
A Journal reporter was permitted to listen to the unusual 70-minute
hearing on Tuesday under a reform state lawmakers enacted in 2018 to
make the traditionally secret process used to appoint guardians and
conservators more transparent.
Such guardianship hearings are now open to the public, but most
records in the case are still sealed. Attorneys, other advisers and the
judges involved usually do not speak publicly about such cases outside
the courtroom.
Just weeks ago, the state Legislature unanimously passed its latest
reform measure to place tighter controls on the use of emergency
temporary guardianships – the process that led Hamilton being removed
from her home and placed into an assisted living facility after Banks
filed a petition in 2019 alleging an emergency existed.
Banks contended in the petition that Hamilton, then 91, was in danger
of “irreparable harm” to her physical and mental health and financial
interest.
At the time, Hamilton was living alone in her Las Cruces home in the
community where the current mayor of the city, Ken Miyagishima, had been
one of her students. She went to aerobics, still drove a car and
counted at least one top state lawmaker as her personal friend. Her only
son, Rio Hamilton, had a career in New York City in the interior design
field but would come to visit.
Guardianship battle
During one of those visits in the summer of 2019 – and realizing the
condition of his mother’s home of 50 years – Rio Hamilton took his
mother to Banks to draw up a power of attorney document. That authority
would have allowed him to temporarily move her to a hotel and hire a
crew to clean out her home, he has told the Journal.
But instead, days later Banks filed a petition contending Rio
Hamilton wanted his mother placed into a corporate guardianship with a
company Banks recommended. Banks alleged in the petition that Dorris
Hamilton had memory loss, vascular dementia, was hoarding and was at
risk for financial exploitation.
Rio Hamilton said he never sanctioned the legal action – deemed a
last resort because of its restrictions on a person’s liberties. He said
he learned about the guardianship petition several weeks after it was
filed in his name.
Soon after Arrieta approved the corporate guardian appointment,
Dorris Hamilton couldn’t access her bank accounts, which had been closed
and the money been transferred out by the guardian company that was
also appointed temporary conservator. Las Cruces police helped the
guardian agency move her to the memory care facility, which she didn’t
like.
Within months, Banks’s role changed from the petitioner’s attorney to
a lawyer appointed by the judge to represent Mrs. Hamilton.
Rio Hamilton moved back to Las Cruces in the fall of 2019 and began
his near two-year legal fight to become his mother’s guardian. In
January he received court approval to move his mother into an assisted
living facility she preferred.
The next step was to ensure Banks was no longer involved in the case, Rio Hamilton told the Journal last fall.
Banks, in a Journal interview last year, declined to comment other
than to say she was looking out for the interests of her client, Mrs.
Hamilton. She didn’t return a Journal phone call after the hearing last
week.
A son’s case
At Tuesday’s hearing, Arrieta said he was concerned that Rio
Hamilton’s attorney, Josh Dwyer of Las Cruces, had billed Dorris
Hamilton’s estate for more than $54,000 in legal work prior to his
client becoming her guardian.
Under state law, many costs attributed to a guardianship action,
including fees for attorneys and the corporate guardian, are paid from
the protected person’s assets. It’s unclear how much money Mrs.
Hamilton’s estate has paid out to date.
Dwyer told the judge on Tuesday he believed billing the estate was
proper and reasonable because “Mr. Hamilton’s pursuit in this entire
case was for the benefit of his mother, his interest and his mother’s
interest.”
And he said the case could have been resolved much earlier. “If not
for Ms. Banks’ involvement,” he added, “this probably did not need to be
a two-year ordeal for her only son to be appointed as guardian for his
mother.”
Dwyer said he believed the bills submitted by Banks for her legal
fees in the case were “certainly in the same category” as his bills.
To that, Arrieta responded, “the difference is there is a specific
order out there that I entered early on that Mr. Rio Hamilton did not
qualify, was not prepared to, and was not able to act as a guardian for
his mother. There were some questions of neglect, so on and so forth.”
He didn’t elaborate.
Dwyer responded that his client was clearly as qualified as the
appointed Las Cruces corporate guardian firm, which at the time had no
nationally certified guardians as required by 2019 reforms to state law.
Banks didn’t respond to Dwyer’s assertions during the hearing. Dwyer declined to comment after the hearing.
The judge asked Banks to draw up an order and write a brief on the
attorney fees issue. The other lawyers in the case are also expected to
weigh in.
Arrieta said “it was my intention today to relieve Ms. Banks from any
further proceedings, however this issue of attorney fees has arisen.”
After that issue is resolved, he said during the hearing, he would allow
her to withdraw.
Press coverage
Since 2019, Rio Hamilton has been vocal in expressing his criticism
of Banks and the guardianship system in New Mexico. His mother’s case
has been the subject of news reports in the Albuquerque Journal and
Searchlight New Mexico.
Last fall, the Washington Post wrote about the case after Rio
Hamilton appeared at a #FreeBritney rally in Los Angeles, as singer
Spears sought to end her 13-year legal guardianship, called a
conservatorship in California.
On Tuesday, Arrieta took issue with the press coverage of the case,
specifically mentioning comments attributed to Rio Hamilton in a Feb. 2
Searchlight article.
Rio Hamilton criticized the current state’s emergency guardianship
law, which allows judges to appoint guardians first and then hold a
hearing weeks or months later to ascertain the truth of the allegations
of mental incapacity
“So why not make sure that this person is actually incapacitated
before you take them out of their home?” he was quoted as saying.
If the latest reform bill is signed into law by Gov. Michelle Lujan, a
hearing would have to be held within 10 days of a temporary guardian
being appointed. And temporary guardians would be barred from removing
an alleged incapacitated person from their homes without approval from a
judge.
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| Manuel Arrieta |
Arrieta on Tuesday did not address Rio Hamilton’s questioning of the
system, but focused on whether there was any doubt his mother was
incapacitated.
Dwyer said he was not challenging the judge’s prior rulings that Mrs.
Hamilton lacked the capacity to make certain decisions on her own.
“But I also understand the explicit policy of the guardianship statutes is to foster independence and autonomy,” Dwyer said.
Arrieta acknowledged Rio Hamilton has a First Amendment right to speak to the press.
“My concern is the integrity of the court is being impugned by some
of these articles,” the judge said, “and things are not being correctly
reported.”
Any of the “parties” in the guardianship case, if contacted, could
direct the news media to the transcript of a October 2019 public
hearing, Arrieta said.
That was the first hearing in the case and delved into the allegations about Mrs. Hamilton’s home.
Arrieta said he wanted to “caution” Rio Hamilton about the “possibility” the transcript of the 2019 hearing could be released.
Rio Hamilton told the judge on Tuesday that he hasn’t sought out media attention but has responded to reporters’ questions.
“Everything I’ve stated is true. Some of the words may have been
misconstrued. … But my intent is not to demean the court system but
simply to let other people know this can easily happen to them, and
there’s no denying that.”
During his phone conversation with Mrs. Hamilton on Tuesday the judge asked her: “Can you tell me who I am?”
“Judge Arrrieta,” she responded without hesitation.
“Okay,” the judge replied. “Are you sitting next to your son?
“I’m in the same room with him,” she said.
She complained about a lack of communication with Banks, and said her son “is perfectly capable of helping me.”
“Alright,” Arrieta asked her, “do you remember that when you first
came to my court there was a report of hoarding and unlivable conditions
in your house?”
“That was a long time ago, several years ago,” she said. “It was
different then than it is now, he has shown me that he can help me and
does help me.”
“Tell me,” Arrieta asked, “where was your son when this hoarding took
place and you were living in unlivable conditions in your house.”
“He was around,” she responded.
As for Banks, Mrs. Hamilton told the judge, “I can’t tell you anything that she has done for me.”
‘She’s an inspiration’
Before the hearing ended, Rio Hamilton’s attorney praised Mrs. Hamilton.
“I feel like she’s an inspiration, and the reason so many people care
about this case is because of who she was and how she’s lived her life
for 93 years,” Dwyer said. “She’s an important lady in our community and
through this case, changes have been made at the legislative level.
This lady has improved our community.”
Dorris Hamilton overcame extreme poverty growing up in Arkansas,
becoming the first Black woman to graduate from the University of
Arkansas and receiving a master’s degree at age 23. She secured a place
in New Mexico history as the state’s first Black school principal. She
championed civil rights with the NAACP in New Mexico.
Arrieta said he agreed she is an “icon in this community,” and added
“the court is acting in her best interest to make sure everything is
done properly.”
Banks told the parties she believed “media attention is a difficult one to address.”
“Mrs. Hamilton has the right to privacy and I fear that has been
violated in this case,” she said. “That’s always been my biggest concern
… what people are going to remember her for is this proceeding and not
her good work.”
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