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James Owen
Owen Law Firm
(417) 496-1924
Audra Simovitch
Law Office of Audra Simovitch
(561) 210-8464
Shannon D. Taylor
Shannon D. Taylor, PLLC
(405) 602-8446
Shirley Berger Whitenack, CAP, Fellow
Schenck, Price, Smith & King LLP
(973) 540-7336
Meredith L. Grocott
Schenck, Price, Smith & King LLP
(973) 539-1000 x7348
NAELA News Journal - NAELA News Online

Guardianships During COVID-19: Perspectives From NAELA Practitioners

Published October 14, 2020
COVID-19 has caused the shutdown of courts across states and has forced state and local courts to change their court procedures and protocols to prevent the spread of the virus. Before the pandemic, guardianship courts already had to balance appointing guardianships for wards unable to care for themselves while still ensuring the ward’s right to object to the guardianship, including actively participating in court proceedings. COVID-19 has made this balance even more difficult with wards being in locked-down nursing homes and other facilities, court being held solely or partially through video technology, changes to how medical examinations are conducted, and the loosening of court procedures that may present opportunities for abuse of the ward.

To address these different challenges, NAELA’s Guardianship Section held two town halls for NAELA members on the topic of Guardianship During COVID-19. These town halls were facilitated by the authors of this article, who are guardianship practitioners in four different states. The main discussion during the town halls was challenges in communicating with the ward, including the challenge of using of video technology to communicate. The town halls also revealed the differences in how state and local courts responded to COVID-19, from some courts completely shutting down to other courts remaining open with more safety protocols. This article will first address the general challenge of communicating with wards during the pandemic and will then have perspectives from practitioners in New Jersey, Oklahoma, and Florida. 

Guardianship Challenges During COVID-19
By James Owen, Esq. (Columbia, Missouri)
Being a guardianship practitioner is a challenging job. The COVID-19 pandemic has stressed the challenges of being a guardian that existed even during the best of times. The ward is likely experiencing significant strain and confusion right now. Yet, with any difficult situation, there are solutions to consider. Even in situations where the ward lives in a rural area and is more isolated with fewer resources and uncertain technology. Or where a younger person who may be more “high-functioning” than an older person under a guardianship. These situations have more dynamics fraught with concern. 

Communicating With the Ward
During COVID-19, a significant concern for guardianship practitioners has been communication with the ward. Keeping in communication with a ward is always important but not when direct contact could pose a dire risk to the ward’s health. The pandemic has made direct contact with wards in nursing homes, assisted living facilities, or other communal settings nearly impossible. The best starting point is figuring out a plan for communication. The first questions should be what does this current situation change, and how can we make it better for the ward?

One option is meetings that take place over videoconference. Perhaps the facility is in a remote location with a bad Internet connection that makes efforts difficult. Maybe it is time to discuss with administrators the need for an upgrade. Significant money is spent for the services provided by that facility and our current crisis demands more to be discussed over the phone or by Zoom. Or Skype. Or whatever Microsoft has. The facility, no matter where they are located, has an obligation to provide the best access they can within reason. 

It is possible, however, that talking over a computer or a phone is not the best solution for the person under the guardianship. It has been my experience with consultations during this pandemic that wards suffering from dementia or probable Alzheimer’s are further confused and even frightened when they are talking to someone over what they may perceive as a “television.” Their minds are not in a condition to process the fact that a real person is talking to them.  

Using videoconferencing also raises confidentiality concerns. I am appointed to a number of cases in a rural county in northern Missouri where the hospital will not let lawyers meet with their clients unless it is a) on a videoconference; and b) a staff member is present. Of course, this doesn't allow for any real, meaningful type of communication explaining the rights to a respondent in a guardianship proceeding or especially in an involuntary commitment hearing where the hospital is the petitioner and one of its agents is in the room. However, the court makes a note of this on the record, which would probably make it easier to challenge later on.

Additionally, communication through videoconference might frustrate the ward’s condition further. The Center for Medicare and Medicaid Services (CMS) has released different guidance on communications and visitations with wards in nursing homes and group settings during this pandemic. Staying updated on this CMS guidance and bringing it to the attention of the nursing home administration may help, particularly with a difficult administration. Keep in mind, CMS guidance are only suggestions and cannot be enforced. The CMS guidance is still a good place to start in determining how communication can commence and provide options for the most beneficial route. 

Importance of Having a Care Plan
Challenges of communicating with the ward during this pandemic have shown the importance of having a care plan. Now is the time to review any existing care plan and to discuss the details with those invested in the life of the ward. Although many jurisdictions do not require the guardian to have a care plan in place, maybe now is the time to create one. Part of sketching out daily, weekly, and monthly efforts for the ward is thinking about and considering contingencies and emergencies. The plan will not always be perfect and sometimes will not even be applicable. But the actual exercise of drawing out this plan out with others in the ward’s life is very worthwhile. 

If changes to a care plan are required, many attorneys have expressed a concern that submitting changes to the court (if your jurisdiction requires that a care plan be approved by the court) will overwhelm an already taxed judicial staff. Certainly this a real issue for many court personnel, especially during the pandemic, but my experience has been that new guardianship cases are down and staff has time to work on existing matters. Whether the court is slowed by staff working remotely or on limited hours does not mean that the simple act of reviewing a plan will not have a substantial impact on the ward’s care.  

Perspectives From New Jersey
By Meredith L. Grocott, Esq. (Florham Park, New Jersey) and Shirley Berger Whitenack, CAP, NAELA Fellow (Florham Park, New Jersey)
The New Jersey Supreme Court acted relatively swiftly in response to the state of emergency caused by COVID-19. While the New Jersey courts shut their literal doors, the courts did not cease working, with the exception of jury trials. In an effort to reduce the risk of spreading the virus, the New Jersey Supreme Court issued an order on April 8, 2020 that temporarily amended certain court rules to address the fact that the pandemic made in-person interaction difficult or impossible. 

Use of Videoconferencing Technology
Since the order was issued, the Superior Court of New Jersey, Chancery Division, Probate Part has been using Zoom or conference phone calls for guardianship hearings. Typically, the judge’s law clerk sends counsel a Zoom invitation a day or so before the hearing and instructs counsel to forward the Zoom invitation to their clients. The law clerk may also ask counsel for the names of all of the parties who will appear at the hearing to limit the participants to those having an interest in the matter. All counsel and parties who click the Zoom link at the appointed time are placed into a virtual “waiting room” until a court staff member opens the virtual courtroom. The technology has been working well. During COVID-19, when Adult Protective Services (APS) has filed a petition for guardianship, they usually have followed the same procedures used prior to the pandemic and have not relied on technology for visits to the alleged incapacitated persons. 

Medical Examination Requirements
In every proceeding to appoint a guardian in New Jersey, the guardianship petition must be accompanied by the affidavits or certifications of two physicians or one physician and one psychologist licensed in the state of New Jersey who have examined the incapacitated person within 30 days of filing the petition. 

The order issued by the New Jersey Supreme Court relaxed court rules to permit examinations and interviews of the alleged incapacitated person by video or by phone. As most assisted living and nursing home residents are not familiar with or are not capable of managing video technology independently, conducting such interviews has proved challenging. It is virtually impossible to conduct such interviews without the assistance of staff, who are often unfamiliar with the technology themselves. Accordingly, it is also virtually impossible to examine the alleged incapacitated person outside the presence of third parties. 

Other Procedural Changes
The order also modified several other procedural requirements for guardianships. The order permitted service upon the person alleged to be in need of a guardian by certified mail or by reading aloud the complaint, instead of by personal service as would otherwise be required under New Jersey law. Importantly, any judgments for guardianships that are entered during the pandemic allowed for the guardian to begin acting immediately, even if qualification cannot be timely completed. Generally in New Jersey, a court-appointed guardian must qualify through the appropriate county Surrogate’s Office and each county has different procedures arising from the pandemic. The procedural changes set forth in the order officially came to an end on July 26, 2020, but the judge has the authority to modify any procedural requirement to accommodate the situation.

Final Thoughts on New Jersey 
The New Jersey judiciary has adopted a phase approach to the pandemic and during Phase One, the New Jersey courts were not conducting contested guardianship hearings. As the court moved into Phase Two beginning in June, contested guardianships could be conducted on-site. New Jersey is currently in Phase “2.5” with 25 percent of judges and staff returning on-site.

In June, restrictions on visitors, including attorneys, loosened in New Jersey and court-appointed attorneys now have the option of making appointments to visit their clients in person or using video technology or phone. Many facilities are permitting attorneys to visit outside of the limited visiting hours imposed on family members and weather permitting, the attorney may be able to interview the alleged incapacitated person outside. 

Perspectives From Oklahoma
By Shannon D. Taylor, Esq. (Oklahoma City, Oklahoma)
For the most part, Oklahoma courts have remained open during the pandemic. In the few instances where counties have closed their courthouses due to COVID-19 outbreaks, they have reopened within a few days. In most instances, county courthouses have remained open, with limited access and by requiring masks, and using videoconferencing when possible. 

Limited Access to the Courts 
Limited access has included restrictions on the number of people allowed in a courtroom (or courthouse) at one time, whether support persons may attend hearings with vulnerable adults (wards), and where they are permitted to wait if not allowed in the courtroom, as well as who can approach the bench and when. With masks required at all times, verbal communication is challenging for anyone who has hearing difficulties (or who just reads lips, like myself), the soft-spoken feel like they are yelling, and eyeglasses fog over so visibility is impaired. All of this amounts to frustration for wards who may already be struggling, as well as for practitioners and the judiciary. 

Use of Videoconferencing Technology
The judges have allowed practitioners to use any trusted videoconferencing platform to facilitate video participation by the ward, the guardian, counsel, or other necessary parties like a guardian ad litem. In fact, as cases rise in our area, remote participation by as many people as possible has been encouraged. Remote participation must be facilitated by someone other than the court as our judges do not have court-issued technology (computers, monitors, screens, etc.).  

However, technology is often challenging for the elderly. Most of the wards I have worked with have limited experience with texting or cell phones, much less virtual meeting platforms. They are often already experiencing confusion and disorientation, which is sometimes exacerbated by videoconferencing technology. There is often distracting background noise because one or more people are unable to mute themselves. All of this quickly creates frustration, and sometimes anger. 

In several situations, videoconferencing has been unavailable, resulting in telephone conferencing (teleconferencing). Obviously, this can be problematic in proving identity, swearing in the ward, or other witnesses who need to testify. Teleconferencing is also difficult for anyone who may have hearing difficulties. 

The Ward’s Right to Be Present
To ensure a ward’s right to be present in and have access to the court, we have had to rely on assistance from people who are not typically parties to court hearings, or who would not otherwise have access to the legal proceedings. Often, this means a long-term care facility manager facilitates a ward’s participation in videoconferencing. 

Of course, this raises confidentiality concerns, but for the most part, the ward’s right to access and attendance at hearings concerning their person and property outweigh the potential loss of confidentiality. It has been my experience that most facility personnel are accustomed to patient/resident confidentiality and are willing to uphold the same level of confidentiality with respect to legal proceedings. 

Final Thoughts on Oklahoma Courts
In my experience, Oklahoma judges, particularly in Oklahoma County and the surrounding counties, have been extremely accommodating for the safety and protection of elderly wards, especially those who live in assisted living facilities. This consideration has also extended to guardians, people who are assisting wards or guardians, and practitioners. 

Solutions have emerged to the challenges described above, but they have been somewhat messy and disorganized. One solution I have found is that a combination of in-person/virtual participation hearings is easier to navigate than all-virtual hearings. I prefer to be in-person, so I am willing to use my own technology to facilitate remote appearances by others. 

Perspectives From Florida
By Audra Simovitch, Esq. (Boca Raton, Florida)
In March 2020, the courts in Florida shut down except for in-person hearings on essential cases, such as emergency cases of involuntary commitment to mental institutes or addiction centers. Guardianships do not qualify as essential cases, and the counties where I practice have varied in their processes in how obtaining a guardianship would be achieved. 

Use of Videoconferencing Technology
Almost uniformly, hearings became virtual. The platforms each court used varied; some courts used Zoom and others used Microsoft Teams. The challenges with Zoom hearings is having the individual alleged to be incapacitated appear on the video call. In the beginning, the courts were struggling to be as fair as possible to the alleged incapacitated person so that they could participate in the hearing, especially considering many were in facilities. On one occasion, a judge allowed me to hold the phone to the computer so that she could communicate with the alleged incapacitated person, who was in a facility and could only be present by phone. However, the only way to identify the alleged incapacitated person was the nurse who introduced her and connected her on the phone call. 

In many of my hearings, the person seeking guardianship (such as the spouse) has been present during the court proceeding because they are the individual who set up the computer for the Zoom hearing. This situation might raise concerns of undue influence, but I have not had too many court appointed attorneys objecting. I think as the attorney filing the guardianship that we have an additional duty to understand the situation and if there is undue influence. In my cases, I get to know my clients and if I have concerns regarding why they are seeking guardianship, then I would likely not let them be in the room for fear of an undue influence complaint. I think everyone is trying to get through these strange times. When I file the guardianship, it lets the process proceed as-is because, in many situations, the guardianship was needed yesterday. 

Medical Examination Requirements
Another significant issue presented by the pandemic was how to conduct the mental health examination as required under Florida statute. Three members of an examining committee are required to do an in-person examination as to the medical and mental ability of an individual and the individual’s ability to participate in their everyday living needs. In addition, based on the report, the committee member must select which rights to take away from the alleged incapacitated person. 

Certain counties stopped health examinations completely. Broward County did not see how the examination could be done remotely and stopped issuing orders for their examining committee members to do examinations. Palm Beach County initially prohibited examining committee members to do their examinations, but are now issuing orders. However, some facilities are still not letting the examining committee members into the facility, and Palm Beach County will not allow video examinations. On the other hand, Osceola County will allow video examinations with a court order, as will Monroe County. Due to these circumstances and the need for a guardian in my cases, my firm has instead sought emergency temporary guardianship in the interim. 

Final Thoughts on Florida
While there may be appellate issues arising out of the procedures being used at this time, the courts have adapted very quickly and efficiently. As a matter of practicality, not having to drive to every courthouse has saved time, money, and the environment. It is this attorney’s hope that certain hearings can remain online as the Florida courts become more proficient with their use of technology. 

Conclusion
As state and local courts begin to re-open their doors to the public, courts will determine whether any of the temporary or emergency procedures will become permanent, such as allowing certain parties to appear through videoconferencing. There also remains a question of whether the temporary changes to guardianship court proceedings may result in increased reports of financial exploitation, physical or emotional abuse, or neglect of wards, due to improper or unfit guardian appointments. NAELA will continue to monitor whether any state and local guardianship courts are considering permanent changes based on lessons learned during COVID-19.