On March 30, 2020 at 5:00 pm North Carolinians were ordered to stay home in an effort to slow down the spread of the novel coronavirus. While North Carolina is shifting into Phase 2 of reopening the State and our economy, long-term care facilities and those that house the most vulnerable of our society will continue to have heavily restricted access to their services for the foreseeable future. This situation is creating a lot of questions for those that have guardianship or are trying to obtain guardianship over a loved one.
The uncertainty of how to effectively care for a loved one or client is something that many North Carolinians are facing currently. Even with the restrictions being lifted, our state and nation are drastically different places than they were a few months ago. New challenges emerge every day with balancing safety and a desire to be social and visit loved ones.
The pandemic has created new challenges of how to operate without physical interaction with others. While we are still learning about the effects of the virus and its transmission, it is clear that our elderly family members and family members with underlying conditions are still at the greatest risk of contracting it.
Due to these statistics many facilities such as nursing homes, hospitals and group homes have imposed a no visitor policy, among other social distancing measures to attempt to control the spread of the novel coronavirus. This can make fulfilling a guardianship role even more difficult than it usually is and may leave legal guardians with questions about how to best take care of their ward.
As a guardian, you have a duty to remain in contact with your client or loved one, even if you may not be able to physically visit them. It is recommended by the National Center for State Courts that guardians should conduct an immediate well-being assessment of their loved one or client.
Depending on what type of residential setting your loved one or client is in determines the limitations as to visitation. Nursing homes are federally regulated and therefore the restrictions that exist are strictly enforced, potentially including entry by anyone other than staff and residents. Other facilities such as group homes, residential living, or assisted living facilities have guidelines issued by the State in regards to admittance of anyone that is not essential to the facility.
HOW DO FEDERAL GUIDELINES PERTAINING TO NURSING HOMES IMPACT A GUARDIANSHIP?
Nursing home facilities are regulated by federal and state law and therefore have some the strictest procedures in place. States may also implement stricter guidelines if the particular state is hard hit by the virus. If nursing facilities are found to not be following the federal guidelines that have been issued, they risk losing their federal certification.
While it may be tempting to seek a court order to gain access to your loved one or client, the reality is that the court order may not have authority over the federal guidelines. It is best to seek alternative ways to confirm the well-being of your loved one or client such as speaking to them over the phone or staying in contact with their care providers.
Currently, federal guidelines permit access to nursing facilities only for “essential” personnel, which is narrowed down to health care workers and government surveyors. However, there is leniency for situations that are deemed as “compassionate situations,” including, but not limited to, end-of-life care. If you are a guardian and have questions concerning what qualifies as a “compassionate situation,” you should contact the facility where your loved one or client is located to find out what situations meet the criteria.
Ultimately, the facility has the final decision as to whether a situation is considered “compassionate” and the facility makes the decision on a case-by-case basis. If a guardian is allowed into a facility for a “compassionate situation,” it is important to proceed by their guidelines which may include wearing Personal Protective Equipment like masks and gloves and staying in the designated area for the visitation. Remember, these requirements are for the protection of your loved one or client as well as the other vulnerable people in that location.
It is unlikely at this point in time that guardians will be allowed in nursing homes until restrictions are lifted and the threat from the virus passes or at least is minimized. Again, this doesn’t alleviate a guardian’s responsibilities, it simply might make their responsibilities more difficult to fulfill.
It is, however, the nursing facility’s responsibility to facilitate the means for residential communication with the ombudsman and other representatives of the patient; a guardian may talk to the facilities staff about being included by phone or video of any meetings regarding the patient’s health care action plan. Also, a guardian may want to discuss how to have access to their loved one’s or client’s health care records electronically. With the technology available, a guardian’s duties may be more difficult, but certainly doable
Since in-person visitations are suspended, for the time being, technology can be a temporary solution for having contact with your loved one or client. There are plenty of options available whether it is texting, phone calls, or even video calls.
Of course, there is the possibility that your loved one or client may have difficulty with using technology and may be dependent on the help of the nursing staff. While the staff can be extremely helpful in advancing communication between you and your loved one or client, it can also impose the possibility of your loved one or client’s confidentiality being jeopardized. As a guardian, you must make every effort to protect your loved one’s or client’s confidentiality, even with the constraints that exist due to the pandemic.
If you have the authority to make medical decisions for your loved one or client it is important to have an ongoing conversation about medical preferences for them. As a guardian, you should maintain an open conversation about the serious risks that COVID-19 presents to your loved one’s or client’s health and what treatments are available to them if they become infected.
It is also important that your loved one’s or client’s end of life decisions are in order and should be documented and included with their medical record. If you have a court order that grants you guardianship over someone, it is important to make sure that their healthcare providers are aware of it, so as to include you in any medical decisions. If something does happen to them, you may need to make difficult decisions if there are no healthcare documents in place and potentially talk to your ward if they are able to still make those decisions for themselves.
HOW ARE GUARDIANSHIPS IMPACTED IF A LOVED ONE/CLIENT IS LOCATED IN A RESIDENTIAL GROUP SETTING OR HOSPITAL?
While facilities such as group homes are not under the same federal regulations as nursing homes, they will still have their own rules about visitations since most of those housed in their facilities are considered high risk for health complications caused by the virus.
If your loved one or client is located in a facility such as this, it is important to contact the facility and find out their regulations. If they have a no visitor policy in place, you should formulate a plan with staff to make sure that you stay informed of your loved one/client’s health and so that you can maintain contact with them. If you are allowed admittance into the facility you should follow proper protocol for social distancing, PPE, and other guidelines the facility may have in place. Like with federally regulated nursing homes, these requirements are in place for the protection of all the vulnerable residents, including your ward.
In regards to visitation with hospitals, federal guidance has set limitations on visits to patients. Visitors will be screened upon arrival, which will probably include questions about any potential exposure to the disease and taking your temperature.
Hospitals may be limiting the number of visitors a patient is allowed to have; if your loved one/client is located in a hospital, you should contact the facility to find out what their guidelines are for visitation. Hospitals are especially vulnerable as many people who get sick are there.
NORTH CAROLINA COURTS
In response to the COVID-19 out-break, Chief Justice Beasley suspended superior and district court proceedings that were considered non-emergent. While Courts are currently beginning to open back up, there will be a lot of changes and precautions enabled to limit the spread of the novel coronavirus.
There will be limited face to face contact with the clerk of court and other court officials and the clerks may use a dropbox to secure documents that need to be filed or require those documents to be mailed. The courts will also have a backlog from being closed, so it may take longer than usual for any non-emergent hearings to be scheduled. As with medical establishments, you can reach out to your local courthouse to find out what their plans of action are as well as to find out any modified hours or requirements to enter.
Our lifestyles are currently shifting during this ever-evolving pandemic and we are constantly adjusting our everyday way of life to help protect others, especially the most vulnerable among us. We have shifted our normal way of carrying out our daily tasks and find ourselves being creative in ways to accomplishing these tasks. If you have concerns that your loved one or client is not being properly cared for or abused, you can contact adult protective services and report any concerns you may have.
It is also important that you have a plan in place for who will take over your guardianship if you find yourself incapacitated. If you do not have a plan and suddenly are unable to carry out your duties, you should immediately notify the court so that a temporary substitute can be set in place.
While the changes we are being faced with can make our lives more difficult, they are not insurmountable. If you are currently a guardian, there are ways to keep up your legal duties even if you are not able to meet with your ward in person. Take advantage of some of the recommendations listed here and soon it will be second nature!