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February 24, 2023 Feature

No Turning Back: Virtual Hearings in Adult Guardianship

By Hon. Linda Marquis

Judges are inherently a traditional type, averse to sudden change and preferring a slow and cautious approach to the newfangled. The very nature of legal work is centered on precedent and time-honored procedure. Despite the modern court’s implementation of court websites, e-filing, and case management systems, courts were slower to embrace the expansive implementation of virtual appearances. However, the judicial system’s traditional ideas of where justice ought to be delivered in our communities were launched into hyper speed during the pandemic through sheer necessity.

Most court systems reacted quickly during the pandemic by transitioning to provide or expand opportunities for participants to virtually appear at many hearings via Zoom, Skype, BlueJeans, or other online platforms. Generally, the courts’ implementation of widespread virtual hearings was successful. The use of virtual court hearings provided unexpected benefits to both courts and litigants: cost savings, increased efficiency, improved accessibility for participants, and enhanced security. In the short term of the pandemic, virtual appearances allowed the courts to continue to function and safely serve communities during difficult times. Post-pandemic, the unintended benefits of virtual hearings fueled a shift in the legal profession itself. In response, courts across the nation are now embracing and exploring the continued widespread reliance on virtual appearances.

The court system’s successful implementation of virtual appearances was fueled, in part, by the community’s perception of the court’s use of technology and the participants’ experience during the proceeding. Communities were already familiar with the use of technology to deliver services and therefore did not view the court’s implementation of technology as unique or suspicious. Participants in virtual proceedings were generally pleased with the court’s use of technology and valued the ability to virtually appear.

The public’s positive perception of the court’s use of technology to support virtual hearings was based on their increasing reliance on technology to support ordinary day-to-day activities, not just court proceedings. Community access to the Internet, technology, and smart devices has expanded over the decades. The cost of entry-level smartphones, tablets, and computers has decreased, making hardware more widely available to consumers. Access to high-speed broadband Internet has increased for most Americans. Though a digital divide leaves some urban and rural households without access to high-speed Internet in their homes and without basic technological literacy, access and assistance may be available through a friend, family member, local library, or court self-help center.

Social media and dating apps have changed the landscape of social connectivity. Many rely on technology to provide social interaction. Social media platforms (like Facebook, Instagram, and others) and videoconferencing apps (like FaceTime and Google Meet) allow friends and family to frequently connect across the globe, despite the distance that separates them. Online dating apps frequently connect individuals seeking new relationships or experiences.

Communities are now accustomed to the delivery of entertainment and services online at increasing rates. Consumers regularly access digital platforms for entertainment, watching movies and playing games online. Instead of a regular visit to a brick-and-mortar medical office, patients may choose online telemedicine to deliver services. Peloton and other online fitness services provide access to online training, eliminating the need to visit the neighborhood gym. Employers, reacting to employee calls for flexible work-from-home opportunities, are providing virtual platforms for collaboration and productivity in all sectors. Online shopping is widely utilized and expanded during the pandemic as retailers developed services supporting online pickup and delivery of groceries and prescription drugs.

In addition to the public’s perception of the courts’ use of technology to support virtual hearings, actual participants in virtual hearings have positive experiences and realize important benefits. By design, virtual hearing participants are able to social distance, quarantine, and supervise online learning while they attend court hearings. Participants also experience unintended benefits, discovering that time and money are saved by eliminating the commute to and from the courthouse. Attorneys and their clients discover that attorney fees are decreased, while attorney productivity increases, through the widespread use of virtual hearings. Attorneys are able to eliminate the time and costs associated with the commute to the courthouse; instead, they remain efficiently working in their office while waiting for their case to be called. Litigants, who no longer are required to take a day off work or arrange childcare, also experience real benefits from virtual hearings.

In guardianship cases, however, the impact and value of virtual proceedings prove extraordinary. Guardianship proceedings routinely impact individuals receiving elevated levels of care in medical settings, the medically vulnerable, and those with unique needs. The use of widespread virtual appearances provides a vital connection to the courtroom for those patients whose medical condition prohibit them from leaving the hospital or medical treatment center. These individuals, once unable to attend court proceedings, are provided a powerful connection to participate in proceedings. Virtual appearances provide added protections by eliminating risks related to exposure that benefits the medically vulnerable and their caregivers. Even for those individuals who could physically attend a court proceeding, traveling to the courthouse presents great medical risk or too arduous of an excursion. The option to appear virtually is a welcome alternative for many individuals and their caregivers.

For many who want to attend a guardianship proceeding, a visit to the courthouse is complicated and fraught with obstacles. A trip downtown to a justice center is stressful, requiring preparation and presenting obstacles many may be unprepared to navigate. Even before entering the courthouse, the series of obstacles presented can be daunting. Oftentimes, a trip to the courthouse requires traveling an unfamiliar route in rush-hour downtown traffic, finding parking, discovering how to pay for parking, and then walking a considerable distance to the entrance. Experiencing courthouse security checkpoints on a busy morning alongside criminal defendants, law enforcement, civil litigants facing eviction, and victims of domestic violence seeking protection can be overwhelming.

The stressful environment and lack of personal space may have a greater impact on certain individuals. Individuals with Alzheimer’s disease and other forms of dementia may experience challenging behavior responses triggered by the overwhelming environment and interruption in their daily routine. For other adults with unique needs, the exposure to the people, sounds, and smells of the courthouse may be simply too much to manage. Equally stressed caregivers, unable to manage the environment, may struggle to respond and support their loved ones. The stress created by a visit to the courthouse may inhibit the ability of the individual and their caregiver to meaningfully engage once they finally enter the courtroom for their hearing.

For those who may experience negative reactions to a court visit, the ability to virtually appear without opting in is essential. Appearing from the comfort of their own familiar environment minimizes disruption of routine and ensures access to necessary medical or care resources. In turn, individuals are more likely to attend proceedings and engage at increased levels.

While the common use of virtual hearings increases the attendance and engagement of protected people, it also serves to increase the involvement of those who care for protected people. Family members and friends can take advantage of the easy opportunity to appear and participate in virtual hearings from exotic locations across the globe and their workplace break room.

Guardianship courts and the community benefit from the increased participation and improved quality of engagement created through the access provided by virtual hearings. When protected people, families, and caregivers meaningfully participate in guardianship proceedings, less restrictive alternatives or other directives are more likely to be discovered. Regular monitoring and compliance issues are more efficiently managed when individuals are present at hearings. Information and issues, unknown to the court and counsel, can be efficiently communicated and resolved through increased access and interaction.

Virtual hearings are essential in guardianship courts because guardianship courts serve an exceptional community. Virtual justice is simply more valuable for those who cannot easily access the courthouse because of a medical condition, limited mobility, geographic constraints, or the demands of work and family. For those who cannot easily access the courthouse, justice is strengthened through the ability to virtually appear for court proceedings. In the future, our modern courthouses will continue to be the venue for good old-fashioned in-person hearings, but courthouses should also continue to provide online platforms to support virtual hearings. The courthouse will always symbolize the administration of justice, but the judiciary and the community it serves will no longer be tethered to its bricks.

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By Hon. Linda Marquis

Hon. Linda Marquis is a mom, district court judge, and co-chair of the Nevada Supreme Court Guardianship Commission, serving in Las Vegas, Nevada.