What Guardianship Issues are Occurring During the COVID-19 Pandemic?

August 31, 2020

As the United States and other countries across the globe continue to fight against the spread of the Coronavirus (COVID-19), it is important for everyone to learn more about vulnerable populations, such as the elderly. Since the elderly likely have underlying heath conditions and weaker immune systems, older individuals are more susceptible to the health effects of COVID-19.

Those living in nursing homes, assisted living facilities, and other senior housing centers have been hit especially hard. In fact, in an article updated in mid-August 2020, the New York Times reported that 41 percent of all COVID-19 deaths in the United States were linked to nursing homes. COVID-19 exposure in nursing homes only complicates guardianship issues, family legal disputes, and stresses seniors seeking to exercise their rights.

What is a Guardianship?

Guardianship is a legal process that assigns a person to make important legal, medical and financial decisions on behalf of another person who is no longer able to do so due to mental or physical limitations. Since a guardianship takes away certain rights that an individual has, it should not be taken lightly.

If a court appoints a guardian, the guardian only handles situations where the incapacitated person is unable to do so. Some rights that an incapacitated person may lose include:

  • Consent to medical treatment
  • Residency
  • Driver’s license
  • Own or possess a firearm or weapon
  • Own, buy, or sell property
  • Signing of a contract
  • Certain legal actions
  • Right to vote

Before a court appoints a guardian, the individual in question is given due process under the law. They are allowed to have legal representation, present evidence, attend all hearings, and appeal the court’s decision.

What Responsibilities Does a Guardian Have?

Once a guardian is appointed, they are responsible for making important choices with the individual’s best interests in mind. They are expected to manage the person’s affairs in a way that honors their values and wishes and keeps them safe and healthy. Some responsibilities include:

  • Medical treatments
  • Releasing confidential information
  • Acting as a representative payee
  • End-of-life decisions

To ensure some level of accountability, guardians are expected to report their status to the court at least once a year.

COVID-19 Spread in Nursing Homes

In the early weeks of the global pandemic, media outlets in the Untied States began reporting high Coronavirus (COVID-19) rates in assisted living facilities and nursing homes.

As of mid-August 2020, more than 68,000 nursing home and long-term care residents and staff have died after contracting COVID-19. The fatality rates among nursing home residents exceeds those among the general population. Poor infection control protocols and the lack of personal protective equipment among staff primarily contributed to the spread of the virus within senior communities.

Is COVID-19 Affecting the Guardianship Process?

In response to new questions about seniors’ rights during the pandemic, the National Guardianship Association and the American Bar Association Commission on Law and Aging and National Center for State Courts published an online resource.

In the United States, many different people can petition the court for guardianship over someone they feel needs it. That includes family members, neighbors, hospitals, government agencies, and even third-party acquaintances. Unfortunately, in some cases, these acquaintances are strangers who seek to take advantage of vulnerable seniors.

Now more than ever, it is crucial that the guardianship process works as intended. Guardians must preserve as many rights for seniors as possible while protecting their mental, emotional, and physical well-being. Families fighting to bring older loved ones home find themselves battling facilities that do not want to release them. Many have limited or completely prohibited family visitation, leaving their senior residents isolated.

What can a Guardian Do to Protect Their Elderly Parent?

A guardian should start by evaluating their parent’s current living conditions. Whether they are living at home or at a long-term care facility, verify that caregivers are taking precautions to prevent transmission of the virus. Review their current care and treatment plan to see if it still meets their needs and revise it accordingly.

How can I Maintain Contact with a Loved One During the Pandemic?

Guardians and loved ones with seniors living in nursing homes and other full-time care facilities have likely encountered challenges staying in regular contact. Many have put safety protocols in place for visitation or banned outside visitors altogether due to COVID-19 concerns.

Since social interactions are essential to overall health and well-being, it is important to remain in contact with elderly loved ones. For guardians, contact with the person they are responsible for is essential in determining if they are receiving adequate care and have any needs or concerns that need to be addressed. Some ways to stay connected include:

Outdoors or Windows Visits

It is more feasible to socially distance outside in open space as opposed to a small, enclosed nursing home room. Guardians and loved ones should contact the resident’s care team to arrange an outside visit whenever possible, weather permitting.

In-person interaction helps the guardian best assess the senior’s state of mind and physical condition. If outside visits are not permitted, they can do a meeting safely through the window of the building.

Remote Technology

Technology has been an invaluable tool during the pandemic, allowing millions of people to work and go to school from home. For millions required to shelter in place, it offers a way to connect online when meeting in person was not possible.

Texts, phone calls, and video chats are a great way to stay in touch with seniors in nursing homes. Sending them messages and meeting online helps to eliminate the feeling of isolation until in-person visits are possible once again.

Maintain a Dialogue with Nursing Home Staff

Guardians and family members should be in constant contact with social workers, nurses, doctors, and other care providers to remain up to date on a loved one’s health and wellness.

If they do not have access to their family member’s medical records, but feel it is important to help them make decisions, they can consult with an elder law attorney to find out how to gain access. It is also important to learn what the facility is doing to protect against COVID-19 and protect seniors under their care.

Why is it Beneficial to Speak to a Lawyer?

Guardianship may be a viable option to ensure a loved one is safe and that they are not being taken advantage of by caregivers or family members.

There are many benefits to speaking to an attorney when looking to secure one’s future or to obtain guardship of a loved one. A lawyer can help with powers of attorney, health care surrogacies, and living wills. Elder law matters can be complicated, and an experienced attorney can help with the legalities.

It is never too early to meet with an experienced elder law attorney to learn more about all of these options and to start the estate planning process. Taking a proactive approach to future planning is important.

Westchester Guardianship Lawyers at Korsinsky & Klein, LLP Help Guardians Properly Care for the Elderly

As a guardian, the choice of where a loved one should reside can be agonizing. As COVID-19 continues to spread, that decision is even more challenging. Our Westchester guardianship lawyers at Korsinsky & Klein, LLP understand the difficulties guardians face when making life-changing decisions for incapacitated seniors. Call us at 212-495-8133 or complete our online form for an initial consultation. We resolve complex elder law matters. Located in Brooklyn and Manhattan, New York, as well as Lakewood, New Jersey, we serve clients throughout New York and New Jersey.