You have heard this story before. Ms. Schaefer was 86 years old and had lived alone in her own home for the last 26 years. She had many cats and a dog and cared for them in her home. She handled her own finances with minimal assistance, did most of her own shopping and food preparation. She kept a fairly neat house although it was foul-smelling, apparently due to the cats. She needed a walker to get around. She experienced memory lapses and mental confusion at times: for example, she thought a photo of her husband was a photo of her son. She often did not remember what day of the week it was, she could not accurately state how much money was automatically deposited into her bank account each month, and, upon being asked, she was unable to say whether one of her prescriptions was for tablets or for capsules.
Ms. Schaefer’s doctor prescribed medication for her edema, but, because the medication caused her to need the bathroom frequently, and it was difficult for her to do that given her lack of easy mobility, she did not take the medication. As a result, at times, she suffered severe blisters on her feet and swelling. On at least two occasions her condition was serious enough to warrant visits to the Emergency Room.
Over the years, she occasionally told people that she was so attached to her home and her pets that, rather than move out of her home, she would have her pets put to sleep and she would shoot herself.
Her son filed a petition to become her guardian. The court visitor recommended the guardianship be granted based on the facts that Ms. Schaefer, “refuses to take doctor’s advice and medications that are vital to her life and threatens suicide if she is moved from her home. She is unable to reason because of her dementia.”
If you work in the area of guardianships, you are familiar with these types of facts and allegations. In Oregon, we use the term “guardianship” to refer to decisions made by a guardian about another person’s welfare, medical care, residence, and associations. We use the term “conservatorship” to refer to decisions made by a conservator about another person’s finances, their property and income.
The case described above occurred in 2002. The trial court granted the guardianship and Ms. Schaefer appealed. The Oregon Court of Appeals reversed, holding, that there was not sufficient proof by clear and convincing evidence that a guardianship was warranted. They held that in order to grant a guardianship, a petitioner must prove: 1) that the person to be protected has severely impaired perception or communication skills; 2) that the person cannot take care of his or her basic needs to such an extent as to be life or health threatening; and, 3) that the impaired perception or communication skills CAUSE the life or health threatening disability. Schaefer v. Schaefer, 183 Or App 513 (2002).
Oregon has a total population of approximately 4.2 million people. According to the US Census Bureau estimates, 18.2% of our population are 65 and older. For comparison purposes, in 2019, the state with the highest percentage of their population 65 and older was Maine at 21.2%. Utah had the lowest percentage at 11.4%. The percentages increase significantly when you calculate the percentage of Oregonians age 60 and older, 24.6%. The percentage of Oregonians who are age 50 and older is over 36% of our population, that is, over 1.5 million people.
We have over 14,200 open guardianship and conservatorship cases throughout our state. There are pending cases in every judicial district. Approximately two-thirds of these cases have adults as the protected person and one-third have minors as the protected person. A vast majority of these cases are guardianship cases – 70% are guardianship cases, 15% are combined guardianship and conservatorship cases, and, 13% are conservatorships.
These cases are complicated, often involving complex medical conditions and cognitive issues, difficult family dynamics, various governmental agencies with their own regulations and requirements, and, at times, more than one jurisdiction.
Issues of Jurisdiction
In the case of Ms. Jones, a woman in her 50s, she lived in Colorado with her husband, Mr. Jones, for 28 years. They have three grown children: a son who lives in Colorado, another son who lives in New York, and a daughter who lives in Oregon. Ms. Jones’ mother also lives in Oregon. Ms. Jones has been diagnosed with early onset dementia and a terminal medical condition that is progressing rapidly. Ms. Jones goes to visit her mother in Oregon for three weeks and to see her daughter as well. Her husband expects Ms. Jones to return, but she doesn’t. Ms. Jones’ mother has cancelled the return ticket to Colorado. When Mr. Jones calls to speak with his wife, her mother answers the phone and prevents him from speaking with her. Husband flies to Oregon. Ms. Jones’ mother refuses to allow him to enter her residence or visit with Ms. Jones except under very limited conditions. As you can imagine, whatever relationship was in existence between Ms. Jones’ mother and husband before this visit has now completely deteriorated.
By this time, Ms. Jones cannot care for herself as a result of her medical conditions and Mother files a petition to become her guardian. Husband files an objection. He also files a petition in Colorado to become her guardian, to which Mother objects. The police are called at one point and are relieved to learn that the court is involved. I appointed an attorney to represent Ms. Jones in the Oregon case. Pursuant to the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, a judge in Colorado and I conferred and, ultimately, a determination was made regarding jurisdiction and where the case would be heard.
Authority of a Fiduciary
Once appointed, a guardian may have authority over every aspect of the protected person’s life. There are cases where the proposed guardian seeks to make decisions that are irreversible and which have devastating effects on the protected person. These decisions include involuntarily removing the protected person from their home and placing them in a locked facility for the rest of their life, requiring the protected person to undergo a medical procedure such as an amputation, stopping medical treatment, ending life support. When the court appoints a guardian, who may be a close family member, a formerly estranged family member, a neighbor, a friend, or a professional fiduciary, they may be authorized to make some or all of these decisions for the protected person.
You may be thinking that removing a protected person from their home is not an irreversible decision. However, my experience is that, not infrequently, when a person is removed unwillingly from their home, and, especially, when their home is also sold so there is really no hope that they will ever return home, they do not live much longer.
When discussing irreversible decisions, I will share with you the case of Mr. Johanson. Mr. Johanson is an 87 year old man with dementia who is in the hospital following emergency surgery. He has not regained consciousness in the three days following surgery. He is not breathing on his own and is on a ventilator. He receives all of his nutrition intravenously. Mr. Johanson had been living with his wife in their own home until she died approximately six months before his hospitalization. They have no children. There is a niece on wife’s side of the family who lives out of state. The niece was relatively close with her aunt. During the last year of her life, the niece hired a caregiver to help care for her aunt.
The niece has filed a petition for an emergency guardianship of Mr. Johanson. She specifically seeks the authority to withdraw life support and withdraw consent for medical intervention. The petition contains information about the relationship between niece and her aunt. It says nothing about the relationship between niece and her uncle, that is, Mr. Johanson. Mr. Johanson is not conscious and, clearly, makes no response to the petition.
In Oregon, the court is entitled to hold a hearing on a petition even when no objection has been filed. In this case, I appointed an attorney to represent Mr. Johanson and held a hearing within two days, as is required under Oregon law for this type of emergency petition. The niece presented credible and persuasive evidence about her close and continuing relationship with the Respondent (despite the lack of information in the petition) and her knowledge of his history, values and preferences. The court granted the guardianship.
Who are the Objectors
In addition to the court holding a hearing on a petition for guardianship or conservatorship sua sponte, that is, on its own determination, there are others who are entitled to file objections to petitions for guardianships and conservatorships. In my experience, there are patterns of objections, which is dependent upon who is the subject of the petition. The vast majority of protective proceeding cases involve three age groups of respondents: minors, young adults and elders.
In a petition for guardianship/conservatorship where a minor is the Respondent, it is often a parent who objects to the petition brought by a grandparent or other family member. At times there is an open juvenile dependency case which is then consolidated with the protective proceedings case. On occasion, the Department of Human Services, Child Welfare Division, has engaged with the family without an open juvenile court case. Other times, neither the juvenile court nor DHS is involved with the family when the probate petition for guardianship or conservatorship is filed.
In a case where a guardianship/conservatorship is petitioned for an older teenager or young adult, sometimes it is the teen/young adult who objects. More often, it is one parent who objects to a petition brought by the other parent. These cases present to the court in the following posture: the respondent’s parents divorced when respondent was a young age and they have been in conflict over custody and parenting time for years. The respondent is now 18 years old, alleged to be incapacitated, and the parents are no longer entitled to file in the custody case. The parents continue to be polarized and their dispute continues. One or both parents file a petition to be appointed guardian/conservator and the other parent objects.
In guardianship/conservatorship petitions where an elder is the subject of the petition, there are three general categories of objections: 1) the elder objects; 2) an adult child of the elder objects to a petition brought by another adult child, that is, their sibling; and 3) a current partner of the elder objects to a petition for guardianship brought by an adult child of the elder from a former relationship (or vice versa). Please note that when referring to the “current” partner, the length of time they and the elder have been together doesn’t seem to matter. The current partner could easily have been with the elder for 25 years or for only one year. In one form or another, family dynamics often play a major role in the filing, process and impact of these cases.
You Know What They Say About Assumptions
These cases are not always straightforward. Assumptions are made in guardianship cases. Initial assumptions, which are not always accurate…about relationships, about the facts, about capacity. The case involving Ms. Gold, a 69 year old woman with significant developmental disabilities and diagnosed with glioblastoma is a case in point. Ms. Gold worked as an aide in child care facilities for years. She was able to drive, although she never drove on freeways and easily got lost. She was socially very awkward, loud, and easily misunderstood. Some people were uncomfortable in her presence. The glioblastoma was discovered after she had a sudden neurologic event that caused her to be taken to the ER where tests were conducted. She gave consent, let me repeat that, SHE gave consent to have a biopsy performed and the diagnosis was confirmed. She did not have a partner. Her parents were deceased. She had an adult daughter in her 30s who also had significant developmental disabilities. She had a sister who lived out of state. After the surgery and initial recovery, she was moved from the hospital to a rehab facility.
This is when and where the assumptions materialize in a significant way. The social worker at the rehab center approached Ms. Gold’s sister, who had traveled to be with Ms. Gold, to make decisions for Ms. Gold and become her guardian. The rehab center was prepared to file a petition for guardianship. Why? Staff at the rehab facility found it difficult and time consuming to talk with Ms. Gold. They were required to repeat information numerous times and speak slowly each time they interacted. Ms. Gold asked many questions during each conversation. The social worker noted that there were documents the facility wanted Ms. Gold to sign and she refused to sign them. Staff at the facility declared that it was much easier to talk with the sister and it took less time. The staff worked with many patients, they were busy and the facility wanted compliance. The facility’s position was that Ms. Gold’s refusal to sign their forms was evidence of her incapacity. The sister objected to the guardianship. She acknowledged the challenges that both the facility and her sister faced, but her position was that Ms. Gold had capacity and did not need a guardian. She knew her sister well and she was familiar, through her own work, with guardianship law. She knew that although the facility might not agree with Ms. Gold’s decisions, that did not mean Ms. Gold did not have capacity to make those decisions.
The COVID19 pandemic has added further challenges to guardianship and conservatorship cases. It has been over a year since all our lives have changed. And it continues. We, in the judicial branch, are currently in a better position to manage and hear our cases than we were at the time of the initial restrictions. Although, in Oregon, we were already an electronic court for filing purposes, we rarely held remote hearings. In March, 2020, Oregon’s Chief Justice issued emergency restriction orders limiting the types of cases we heard and the method of hearing them.
There were three major challenges to note. The first was understanding the technology, determining which platforms would work for remote video hearings and learning how to utilize these platforms in formal court proceedings while addressing the fact that hearings must be open and available to the public. As a result of the pandemic, we began holding all guardianship and conservatorship hearings remotely. There is a saying that we cannot let the lack of perfection prevent good from occurring, and that was the way we moved forward. Our priority was to hold guardianship hearings remotely, especially emergency guardianship hearings, and as quickly as possible. We learned the technology and worked with others concerning their access or lack of access to the technology, adapting and making adjustments as we proceeded. We, as judges, are learning new skills: the various video platforms, implementing due process remotely including such matters as interpreters, ensuring attorneys and their clients can confer privately through breakout rooms or with separate cell phones when they are not physically in the same location, establishing the official record and public access to the hearing.
The second challenge was explaining these new processes to the parties, the public, and to the attorneys in clear and simple language. Our staff needed to contact many self-represented persons, who unlike attorneys, were not familiar with court procedures. If a remote hearing was delayed, for example, a self-represented person would think they had been forgotten. They might panic, leave their residence and attempt to go to the courthouse (no longer the site of the hearing) or simply believe they had missed their hearing. We made it a point, as an integral part of the process, to call people on time, even when there were issues that had to be addressed before we could begin the hearing, in order to reassure parties, provide current information, and be clear and transparent. All parties were entitled to be respected and heard.
That leads to the third challenge which was attitude. Our attitude. The court’s attitude. The attitude of all members of the court was crucial in ensuring the integrity of the court. These cases are intense, difficult and filled with fear and anxiety under the best of circumstances. Judges and court staff needed to set the bar high by being thoughtful, patient, professional and understanding. This is a crisis. Everything takes longer. Hearings, explanations, preparation. And, still, this is the time to go the extra mile. Or ten miles. Or more…
We have been working with other stakeholders to address some of these challenges. The Long Term Care Ombudsman has worked on providing technology to protected persons who are residents of long-term care facilities. A number of care facilities are ensuring space and assistance with technology for residents and their attorneys in court hearings. Attorneys are being appointed for as many respondents as possible. However, many respondents cannot afford to pay for an attorney from their own assets, so it is solely by the good graces and professionalism of local probate attorneys who are willing to take these cases pro bono that court appointed attorneys are possible. At present, all respondents and protected persons have court appointed attorneys representing them, unless they have retained their own attorney, for all court hearings. A bill, SB 578, to fund a pilot project for court appointed attorneys for persons who are the subject of or subject to a guardianship proceeding and do not have the resources to pay for the attorney from their own assets is currently pending before the 2021 Oregon legislature.
Parties to guardianship cases have faced additional pandemic issues. More than one petition was brought to establish a guardianship where the petitioner was a family member, the respondent was in a long term care facility and COVID19 protocols prevented the family from having any in-person visits with the resident. A granddaughter petitioned to be guardian of her grandmother who was a resident in a nursing home alleging that before the pandemic she visited her grandmother daily and was now being refused any in-person contact with her. If she was appointed guardian, she would be allowed under the facility’s regulations to have in-person visits with her grandmother. Granddaughter alleged that this was an emergency, that the health of grandmother was deteriorating and her confusion and depression deepening.
Motions to remove a protected person from their home and place them in a nursing facility has the overlay of the COVID19 virus: are there positive COVID cases of residents or staff in the facility; what are the protocols of the facility for testing, interaction, distancing; what are the criteria for residents and staff being vaccinated; what is the quarantine or isolation required of new residents and for how long; what are room and dining accommodations and what access is provided for the guardian and family members. These are all factors the court must consider when making these determinations.
As stated earlier, this is an intense time for family members. There have been so many difficulties during the pandemic, including the lack of personal contact which has such an adverse impact on people who are subject to guardianships. The isolation of and restrictions on residents of long term care facilities and their families have brought about serious consequences.
One unanticipated benefit to hearing these cases remotely has been that more family members have been able to participate as witnesses even when they live out of town, out of state, have responsibilities caring for other family members or cannot afford to leave work. The court receives additional relevant evidence from witnesses who may not have been able to appear if the hearing were held in person at the courthouse.
It is critical for the court to learn from what we have been experiencing as we navigate through COVID19 and these protective proceedings. When moving forward to the future new normal, our goal is to use what we have learned and incorporate any and all benefits to people impacted by these cases. We can’t simply slide back into old ways. We need to take steps in an organized, thoughtful and forward looking manner to integrate the ideas and processes that benefit respondents and protected persons. We have more advanced technology now that can be used to benefit our communities. Ensuring the existence of up-to-date technology in the courtroom will enhance access and provide important information to the court during these hearings.
Hopefully, these varied cases (and so many more) and our current crises illustrate the need to strengthen individual autonomy through guardianship reform and implementation. In the next issue of Bifocal, Judge Lauren Holland discusses the guardianship and conservatorship system in Oregon and the road to reform including the development of Oregon WINGS (Working Interdisciplinary Network of Guardianship Stakeholders).