As the COVID-19 pandemic escalates, guardians across the country are finding themselves unsure of how the coronavirus affects their roles and responsibilities.
The American Bar Association (ABA), National Center for State Courts (NCSC), and the National Guardianship Association (NGA) recently released a lengthy report detailing how COVID-19 affects guardians. As part of our effort to help individuals navigate guardianship cases during the pandemic, we compiled a summary of that report. You can also find the full report here.
During this time, McIntyre Tate LLP remains open to provide our clients with legal assistance. If you have questions concerning how COVID-19 may affect your duties as a guardian, you can call our COVID-19 Legal Help Line at (401) 443-2005 for a free consultation with one of our attorneys.
Will My Rights and Responsibilities as a Guardian Change Due to COVID-19?
No. During the pandemic, you still retain all the rights and responsibilities you had before the pandemic escalated. However, it will probably be more challenging to maintain consistent contact and care for your client or loved one during the pandemic.
Similarly, your client or loved one still has all the guardianship rights and privileges now that they had before the pandemic.
How Is COVID-19 Affecting Guardianship Arrangements?
COVID-19 is affecting guardianship arrangements in a variety of ways.
Guardians whose client or loved one inhabits a facility such as a nursing home will be among the most affected by the COVID-19 pandemic. The elderly are at significantly increased risk of severe side effects or even death if they contract the coronavirus. Early COVID-19 outbreaks in nursing homes displayed disastrous results—one nursing home in the Seattle area is linked to over two dozen COVID-19 deaths alone. The coronavirus can also be devastating for individuals who have pre-existing conditions, respiratory issues, or auto-immune disorders, so care facilities dedicated to disabled individuals are also exceptionally vulnerable.
Understandably, the federal government is eager to prevent similar outbreaks in other care facilities across the country. The Centers for Medicare and Medicaid Services (CMS) recently released a federal guidance directing care facilities to bar most visitors from entering their properties. The federal guidance recommends that only 'essential personnel,' limited to staff and government surveyors, be allowed to enter care facilities.
As a result of this federal guidance, most guardians now find themselves barred from the facilities in which their loved ones or clients are housed.
Additionally, courts across the country are shuttering doors during the COVID-19 pandemic. While the scheduling of court hearings changes by state and even by county, most courts are closing their doors to in-person hearings during this time.
Instead, most courts are offering remote hearings in an effort to serve their jurisdictions. However, because remote hearings are often more difficult to schedule than in-person hearings (they require all parties to have the necessary software, a stable internet connection, and frequently a webcam), most courts are backlogged with cases right now. Guardians attempting to access their local court may find doing so difficult or may have to accept a pushed-back date.
My Ward Is in a Nursing Home or Care Facility. What Can I Do?
The federal guidance from the CMS encourages care facilities to communicate with guardians regularly. However, most guardians want to initiate consistent communication with their ward, and every-so-often check-ins by care facility staff won't be sufficient.
If your ward is in a care facility, there are a few actions you can take to encourage communication and ensure you provide your client or loved one with the care they deserve:
- Ask staff for their COVID-19 protocol. It's essential to understand how your care facility is handling the pandemic and what steps they're taking to protect your client or loved one. Ask for a handout or pamphlet detailing how the care facility is controlling the pandemic, and raise any questions or concerns you may have about their planning.
- Attend care planning meetings organized by care facility staff. Care facilities should hold regular care planning meetings for their tenants. Attending these meetings in general is a good idea, but attending them now is of paramount importance. During these meetings, you'll have the chance to make specific requests modifying how staff care for your ward, and what steps you want to take to ensure you have consistent contact with them. You should also ask care facility staff to send you periodic records of treatment for your ward, so you can assess how the staff thinks your ward is handling the pandemic and what actions they're taking to care for them.
- Set up remote communication with your ward. Technology is your ally during this time, so use it to your advantage. Methods of communication, such as texting, phone calls, emails, and video calls, are all useful. Ask care facility staff if they'll help your ward set up video conferencing software for your ward. You should also ask staff to let you speak with your ward alone, even if your ward is mentally impaired. During this pandemic, ensuring your ward is properly cared for will be exceedingly difficult since in-person checkups will be impossible. Setting aside time to ask your ward how they're feeling one-on-one, without a staff member in the room, is crucial. If your ward is non-verbal or doesn't speak your language, see if your video conferencing software is capable of using emojis or other non-verbal forms of communication such as GIFs, and ask your ward to communicate that way. You can also ask staff if they have translation software available.
- See if you can arrange a "through the window" meeting. While you probably won't be allowed inside the care facility for the foreseeable future, it may be possible to visit your client through a barrier such as a window or a door. Ask the care facility director how you can make a meeting through a barrier work.
- If your client or loved one is in end-of-life care, you may be able to see them. Most care facilities have provisions allowing guardians and other parties such as agents with the power of attorney and close family members to visit clients entering hospice or end-of-life care. If your ward is in hospice or a similar situation, ask your care facility director how you can visit them to ensure you take care of any necessary end-of-life arrangements. Be prepared to wear Personal Protective Equipment (PPE) and collaborate with care facility staff to ensure you aren't putting any other patients at risk when you go to visit your ward.
During the coronavirus pandemic, care facilities are not required to ask guardians for permission before moving a ward to a different facility. This measure exists so, if a patient contracts COVID-19, the care facility can quickly move them to a different facility such as a hospital and minimize the chances of other patients contracting the disease.
Care facility staff will contact you as soon as they are able if your ward is moved to a different facility, but be prepared to receive notice after the move has already taken place.
What Can I Do to Help My Client or Loved One Handle the COVID-19 Pandemic?
In addition to taking the above actions if your ward is stationed in a care facility, there are several other things you can do to prepare yourself and your client or loved one for the COVID-19 pandemic:
- Start talking with your ward about the COVID-19 pandemic often and regularly. Consistently talking with your client or loved one about the pandemic serves two purposes: it encourages them to develop a comprehensive understanding of the current situation, and it helps them take precautionary measures against contracting COVID-19.
Many wards, particularly those housed in care facilities, will be forced to isolate for the duration of the COVID-19 pandemic. For individuals who are mentally or physically impaired, or who are simply not used to isolation, this may be difficult to handle. Talking about the pandemic with your ward encourages them to understand why they're being isolated. It can also help your client or loved one understand that you're not visiting them to protect them, not to avoid them or because you dislike them. If your ward is mentally impaired, you may have to retread ground consistently, so be prepared to talk about why isolation is necessary and the current state of the pandemic whenever you speak with them.
You should also take this opportunity to encourage your ward or loved one to practice measures that can help them avoid contracting COVID-19, such as social distancing and good personal hygiene. Ideally, care facility staff will back you up. You may not be able to ensure your loved one or client is getting up-to-date or valid information about the coronavirus, so you should try and act as their primary source of reliable information. Pay attention to what prominent epidemiologists and organizations such as the CDC are saying about the virus, and relay that information to your ward.
- Take whatever measures you can to ease your ward's feelings of isolation. For example, your client or loved one may prefer a short check-in every day to one long check-in over the weekend. Work with care facility staff to develop a plan that minimizes the amount of time your ward spends alone. Emphasize to your ward that isolation is a temporary measure to keep them safe and that, eventually, you'll be able to visit them again once the pandemic subsides. Try and prepare activities for your check-ins, such as games or questions you know your ward will enjoy. Think about what hobbies your client or loved one enjoys, and ask them to coach you through performing that hobby or video. The more engagement you provide and the more time you devote to your ward's needs, the better they'll be able to cope with spending time alone.
- Understand how your court is handling the pandemic. As we mentioned earlier, many courts only offer remote hearings and orders during this time. The National Center for State Courts provides up-to-date information about how each state is handling the pandemic on their homepage, so visit it and see how your state is asking courts to operate. Many states are asking counties to regulate their courts. USA.gov provides a list of state, county, and municipal courts that you can use to select your county court and understand how your court is operating during the pandemic.
If your court is only administering remote hearings or is closed to the general public, take the time to call the clerk's office and ask how to file court orders or arrange a remote hearing. If you want to file a court order or arrange a hearing during the pandemic, having the information on-hand ahead of time will be useful. You should also ask the clerk how backlogged the cases are. Most courts are running behind schedule right now, so prepare to wait awhile for a hearing if you request one.
- Work with your ward to develop a last will and testament. Preparing end-of-life documents is never easy, but it's vital at this time. Ideally, you want to work with an attorney who can help you draft and notarize a legally binding will for your ward.
- Monitor your ward's medical status consistently. Check in with staff often to confirm whether or not your client or loved one is displaying any COVID-19 symptoms, or if the care facility has any coronavirus cases. You may feel paranoid doing it, but right now, it's better to be safe than sorry.
- Draft a plan of action for what will happen if you contract COVID-19, including appointing a backup guardian. Hopefully, you avoid contracting COVID-19 throughout the pandemic. However, it's essential to prepare for every scenario. If you do contract the coronavirus, you'll need to self-quarantine, and may not be able to check in with your ward consistently. Appoint a backup guardian who can check in with your ward regularly in your stead. It's important you notify your client or loved one of the plans you make, so they're not surprised if your backup guardian checks in on them.
We understand that, right now, many guardians are unsure of what steps they can take to protect their clients and loved ones. Hopefully, this blog has answered some of your questions.
To learn more about what steps you can take to protect your client or loved one at this time, you can read the full NGA report here, or contact us online or via phone at (401) 351-7700 for a legal consultation. Stay safe, and stay well.