Guardianship Law During This Pandemic: The Difficulties and Complications Attendant With This Crisis

By: Erika Leigh Kelley, Esq.

Guardianship law in the State of New Jersey – as in other jurisdictions  – is crucial for the protection of some of the most “at risk” individuals in our society.  This pandemic has presented a number of unique difficulties and complications in serving and protecting our elderly, infirm and special needs citizens.

A guardianship proceeding is a formal court proceeding wherein and whereby an adult is alleged is to be an incapacitated individual in need of a guardian.  Pursuant to New Jersey Statutes and Rules of Court, an alleged incapacitated person (“AIP”) is entitled to the representation of counsel upon the initiation of the proceeding.  Dependent upon the unique circumstances of the matter, the AIP may additionally be afforded the protections of a Temporary Guardian or Special Medical Guardian. 

During the pendency of the guardianship proceeding, both Court-Appointed Counsel and Temporary/Special Medical Guardian report to the court their findings as to whether the AIP should have a guardian appointed and to what extent (ie. limited or full).  Court-Appointed Counsel and Temporary/Special Medical Guardians must exercise due diligence in their appointments which includes meeting with, interviewing and evaluating the AIP in order to report to the court and/or make decisions related to the care of the individual.   The COVID-19 pandemic has impacted and complicated guardianship work (as in many areas of law) greatly.    

As most everyone is painfully aware, the Governor of the State of New Jersey declared a concurrent state of emergency and public health emergency on March 9, 2020 which actions invoked the authority and powers contemplated in the Emergency Health Powers Act (N.J.S.A. 26:13-3 et seq.).  The President of the United States declared a Federal State of Emergency in response to COVID-19 on March 13, 2020.  These declarations have triggered a variety of measures to protect the health, safety and welfare of our citizens.    

Guardianship work throughout our State was immediately and necessarily impacted by the declarations of the states of emergency.  Locally, the Honorable Michael J. Blee, P.J. Ch., Atlantic County, immediately urged all counsel to cease personal visitations at all medical facilities.  Due to this limitation, Judge Blee ordered that facilities must provide guardianship attorneys with access to the AIP through telephonic communication and/or Skype and/or Facetime. 

Chief Justice of the New Jersey Supreme Court, the Honorable Stuart Rabner, executed an Omnibus Order on April 8, 2020 which relaxed the requirements of R. 4:86, thereby making temporary adjustments to the process for seeking an adjudication of incapacity of an adult.  These adjustments include, but are not limited to, (1) allowing affidavits in support of a guardianship application submitted by physicians or psychologists who have examined the AIP by phone or video; (2) examinations and interview of the AIP by counsel to be conducted by phone or video means; and (3) participation of the AIP in the guardianship hearing by phone or video.  Thereafter, Chief Justice Rabner executed a Second Omnibus Order dated April 24, 2020 which ordered that hearings on the adjudication of incapacity and the appointment of permanent guardians shall proceed using remote options only with the consent of all parties.

The new practices related to guardianship work are not ideal and impose their own set of limitations.  The importance of physically meeting with one’s client or ward cannot be understated.  In-person meetings allow for nuance and a more personal and private interaction by and between counsel and the AIP.  While video and telephonic communications certainly allow access to the AIP, the lack of personal communication is restrictive albeit warranted in this unprecedented time.  This same limitation applies for medical professionals submitting affidavits in support of the guardianship application (although it is likely that the physicians and psychologists have lengthy histories with the AIP prior to the initiation of the proceeding).

Compounding the legal constraints necessarily imposed by this pandemic and the attendant social distancing are more pedestrian issues during the pendency of the guardianship proceeding and continuing after the adjudication of incapacity. Those issues include arranging services for and banking on behalf of a ward and placement of those individuals requiring long-term care.  For those individuals not requiring long-term nursing care, outreach services to a home are often required.  However, during this complicated time, it is impossible and impracticable to arrange those face to face interactions with family services, mental health professionals, traveling nurses and drug and alcohol counseling and support services that an  individual may need.  Banking – opening up guardianship accounts and obtaining check writing authority – can generally be accomplished by appointment only. 

Further, and perhaps the most distressing component of this new reality, is the placement of individuals requiring long-term care.  Often, an AIP is hospitalized for some underlying condition and the hospitalization of the individual actually precipitates the initiation of the guardianship proceeding.  Once an AIP is medically stabilized and conceivably ready for discharge, a long-term care facility is often required for the individual.  However, it has widely been reported and recognized in this State that nursing facilities are under siege during this crisis..  To locate a facility which has no or low rates of COVID-19 is a complicated and arduous task in an already complicated time.   

In sum, guardianship work must and should proceed as best it can be conducted under the new circumstances imposed by this crisis.  The needs of those individuals in our community who require and deserve protections do not cease.  We must utilize and embrace all accommodations  – including technology – to continue to serve and advance the needs of our incapacitated population despite the challenges this pandemic has presented.