Posted by Post Authored by Brian M. Bentrup
The legal world is currently grappling with how much of the practice of law can be done virtually, how much needs to be done in person, and how much can be placed on hold indefinitely. There is an immediacy associated with guardianships meaning petitions cannot wait indefinitely and certain aspects of the process can only be done in person. Furthermore, some petitions are filed on an emergency basis, which demonstrate a true urgency. There are due process requirements for guardianships that must be satisfied and guardians have welfare and safety duties for those over whom they have been appointed.
In the guardianship context, these COVID-19-related due process concerns strike at the heart of the proceeding. Adult guardianships commonly result from one of the following events: (1) a minor with a disability reaches the age of majority, or (2) an adult without prior disability suffers from age-related cognitive decline. In both instances, the person over whom a guardianship is sought (the “respondent”) must be personally served. In almost every instance, regardless of county, a guardian ad litem (“GAL”) is appointed to personally observe the respondent and inform him orally and in writing of his rights under Section 11a-11 of the Illinois Probate Act. How does COVID-19 affect the sheriff’s ability to serve the respondent and the GAL’s ability to personally observe the respondent?
In the first situation above, the minor often has parents who are still willing and able to care for the minor upon reaching the age of majority and into the foreseeable future. While there are some instances in which the individuals are placed in a group home or similar residential placement, often times the minor remains at home with parents or siblings. While there are attendant concerns with any in-person interaction during a pandemic, social distancing can typically be observed in the home setting. I have yet to conduct a GAL visit in a respondent’s home where social distancing was not possible. Service upon the respondent can also be made typically without issue.
In the second situation above, it is common for the respondent to already reside in an assisted-living facility or skilled-nursing facility. Residents at these facilities are typically older and the effects of contracting COVID-19 are far more life-threatening. The Centers for Disease Control reports that 80% of COVID-19-related deaths have been among adults aged 65 or older.[1] The facilities have a large number of residents and are forced to enact measures that limit the accessibility of non-residents and non-staff to limit the transmission of the virus. This limited access implicates due process concerns about effectuating service so that the respondent is aware of the proceedings and can attend, if desired. A guardian cannot be appointed without service at least 14 days prior to the court appearance. Furthermore, a guardianship cannot move forward without a physician’s report not older than 90 days and the GAL’s interview of the respondent, written report and oral summary before the court. The limited access necessary to slow transmission of COVID-19 means a GAL cannot freely visit with the respondent in person and must take additional steps to coordinate with the facility’s staff.
Even though Section 5/11a-10 of the Illinois Probate Act requires the GAL to “personally observe the respondent prior to the hearing,” there is no explicit requirement that this personal observation be done in person. There is no shortage of virtual substitutes for in person meetings, such as Zoom, Skype Meet Now, Microsoft Teams, Google Hangouts, and FaceTime to name a few.
Despite the availability and widespread availability of simultaneous two-way audio-visual communication platforms, some respondents may be inherently reluctant to agree to its use or lack the familiarity with the technology to feel comfortable using it. What happens, however, when an in-person meeting is precluded and a virtual personal observation cannot be completed?
I recently had such a case with a respondent, John Doe who was already a resident of an assisted-living facility in Will County.[2] At first, John was willing to meet via Zoom, but when the interview began, he declined to let his face be shown on camera. This added a level of distrust and I could not effectively conduct the interview. I could also not “personally observe” John under these circumstances so I was left with no choice but to work with the facility to conduct an in-person visit. Ultimately, I was able to coordinate with the facility and interview the respondent in his physical presence, but this instance helps demonstrate certain procedural issues currently presented in guardianships.
These are likely to be recurring issues for guardianships during the COVID-19 pandemic and ones that are likely to continue. A temporary guardianship exists to address emergency situations and, during COVID-19, instances in which there is a delay in service or when a GAL interview cannot be timely completed. Temporary guardianships in Illinois do not require service on the respondent nor do they require that the GAL personally the respondent and present a report to the court before the guardian is appointed. This is proving an invaluable tool during the pandemic, but it cannot be extended beyond 60 days unless one of the requirements of Section 5/11a-4(b)(1) or (2) are met. Even if such a requirement is met, in no event can the temporary guardianship be extended beyond 120 days.
Sixty or 120 days should be sufficient to satisfy the due process requirements that protect the respondent, but it is still important that matters be timely addressed and unnecessary delays be avoided.
There are additional considerations with respect to guardians who have already been appointed. Guardians are required to maintain contact with the individual for whom they’ve been appointed (the “ward”). A plenary guardian of the estate and person of a ward must continue to make financial and health care decisions on the ward’s behalf. This requires some form of visitation. During COVID-19, the guardian must make her assessment virtually, using facility staff and records, or distanced observation. There are confidentiality concerns, so it is important that any virtual conversation or distanced observation take appropriate precautions. This can present problems when a guardian is investigating a potential change in residential placement or the annual report on the status of the ward is due.
There is no magical solution to address all of the issues at once and all parties involved must do the best to work within the current framework and administrative orders enacted in each county to ensure that respondents are afforded necessary due process and wards receive the optimal level of care. It is possible that a vaccine may not be available until late in 2021, and there are concerns about any vaccine’s efficacy, the focus has shifted to working within the current framework.
[1] Centers for Disease Control, Older Adults, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html, website accessed August 14, 2020.
[2] Note that the respondent’s name, type of facility, county and all other potentially-identifying information has been changed.
About the Author:
Brian Bentrup is a graduate of Loyola University Chicago where he triple-majored in Economics, Political Science, and Psychology. In 2015, he obtained his law degree from The John Marshall Law School. In law school, Brian was selected to be an extern for the Honorable Laura C. Liu in the Mortgage Foreclosure and Mechanics Lien Division as well as the Illinois Tenant Union.
Brian joined Pluymert, MacDonald, Hargrove & Lee, Ltd. in January 2018. His practice includes estate planning, probate and trust administration, and residential and commercial real estate. Brian also focuses on guardianships of minors and disabled adults and has been named to the approved Guardian ad Litem lists for Cook County, DuPage County, Kane County and Lake County. Brian dedicates time to pro bono work with Chicago Volunteer Legal Services representing or advocating on behalf of minors and disabled adults.
Brian is a member of the American Bar, Illinois State Bar, Cook County Bar, DuPage County Bar, and Chicago Bar Associations. He is also a member of the Justinian Society of Lawyers and the Phi Alpha Delta Law Fraternity.
Brian is a regular writer for the Chicago Bar Association’s @theBar blog where several of his articles have been published on estate planning and the minimization of tax liability.
Brian is licensed to practice in Illinois and Missouri. When not practicing law, Brian enjoys spending time with his wife, daughter and son, and exploring new and different culinary experiences.