Guardianship: An imperfect solution to a complex problem

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By Peter Evancho ’23

This summer, I had the distinct pleasure of working as the David Berg Center for Law and Aging’s Legal Intern at the Harry and Jeanette Weinberg Center for Elder Justice at the Hebrew Home at Riverdale. The Weinberg Center is a first-of-its-kind, comprehensive elder abuse center located in a long-term care facility. The Weinberg Center attorneys, among many other things, take part in guardianship proceedings to help protect and enforce the rights of the vulnerable elderly population in New York City (“NYC”). As has been reported by the NY Law Journal, such proceedings can have direct and lasting effects on all parties involved and as such can benefit from procedural reform.

On average, the National Council on Aging has determined that 10% of adults over the age of sixty experience some form of elder abuse. Of that group, only about 4% actually report this abuse. Guardianship proceedings present a powerful, yet imperfect, remedy for such situations. Accordingly, guardianship proceedings should not be a first response and should only be employed in situations that absolutely require it. In addition to the vigilance required to avoid overuse of guardianship proceedings, a New York Supreme Court judge has created a novel solution to help increase access to justice for victims of elder abuse who are parties in Article 81 guardianship proceedings. You can read about this and more that I mention below in the Elder Abuse in Guardianship Cases A LEGAL RESOURCE GUIDE (2d ed.).

Guardianship is considered a remedy of last resort. This is due, in no small part, to the severe restrictions placed on the alleged incapacitated person (“AIP”). Guardianship severely limits the autonomy and independence of the AIP and should only be sought in the absence of an existing power of attorney, healthcare proxy, or default decisionmaker through the Family Healthcare Decisions Act. In addition to exhausting existing decisionmakers as potential solutions, one must first show that the AIP is incapacitated to the degree that harm is likely to befall them due to their inability to care for themselves or manage their property and finances. Caregivers and concerned parties should allow the AIP time to adjust to their new, safe environment away from their abuser before deciding whether to petition for guardianship. This is crucial because neglect and trauma, which are commonplace in situations of elder abuse, have a detrimental effect on the mental state of the AIP that could mask itself as cognitive impairment warranting a guardianship proceeding. 

If it is determined that a guardianship proceeding is the right course of action, there are additional civil remedies available within the ensuing Article 81 proceeding. One of these remedies is a temporary restraining order. It is this remedy that the NYS Supreme Court judge sought to streamline in order to increase access to justice for victims of elder abuse. A temporary restraining order can be used to: remove an abuser from the victim’s home; protect the assets of the victim from being dissipated by the abuser; and/or pause proceedings in other courts pending a final decision on the guardianship. Rather than including the order of protection in a large, complex document, the order best if it is separated into a single, easy-to-use, stand-alone order. To better streamline the process and make more enforceable a temporary restraining order granted during an Article 81 proceeding, a NYC judge recommended a form that acts as a freestanding order of protection that closely mirrors the form used in criminal proceedings. When the abuser breaches the temporary restraining order, the victim’s best chance for remedy comes from contacting the police. By creating an order that more closely matches the form police are used to from their experience in criminal proceedings, this decreases the likelihood for confusion and streamlines enforcement of the order. 

Guardianship proceedings are powerful tools with myriad remedies available for victims of elder abuse. They are, however, not perfect. Prospective petitioners must be vigilant to ensure that this process is being used only when it is most helpful for the AIP. To ensure that guardianship is the necessary route, the petitioner must ensure that the AIP’s best interests are being taken into account, their autonomy and independence are being preserved to the highest degree possible, and that all other avenues of resolution have been exhausted. Moreover, finding ways to better streamline, and by extension better enforce, current available remedies increases access to justice for vulnerable populations. 

I would like to thank the amazing multidisciplinary team at the Weinberg Center for Elder Justice for supporting me this summer. I also am very grateful for the generous donors to the Blanche Gische and Helen Schurkman Fellowship for Elder Justice at the University at Buffalo School of Law. Together, they allowed me to have this invaluable educational experience this past summer. 

Working at the Weinberg Center has given me invaluable insight into how attorneys can be agents for positive individual and societal change, while working to sustainably and proactively improve people’s mental and physical well-being through upstream non-medical interventions. I am excited to continue my legal education, and I am grateful for my experience this summer and how it can inform my future practice. 

Name: Peter Evancho ‘23

Name of Fellowship: Blanche Gische and Helen Schurkman Fellowship for Elder Justice

Placement: The Harry and Jeanette Weinberg Center for Elder Justice

Location: Riverdale, NY

One important lesson I have learned from this fellowship: “Working at the Weinberg Center has given me invaluable insight into how attorneys can be agents for positive individual and societal change.”