In 2020, New York County Guardianship Judges, the New York Women’s Bar Association, and the Franklin H. Williams Judiciary Commission inaugurated the Guardianship Diversity Initiative (GDI) to increase and promote diversity in the practice of article 81 of the Mental Hygiene Act. The program has already been successful in expanding the opportunity for lawyers of color, bilingual people, members of the LGBTQ+ and disabled communities, and lawyers from diverse ethnic, religious, and cultural backgrounds to play key roles in the guardianship process.
The Californian tutelage of Britney Spears, while atypical of a New York and highly tabloid tutelage, has had the salutary effect of educating many about a process that has hitherto been largely unexplored and unknown. Other high-profile guardianship cases have involved socialite Brooke Astor, businessman Sumner Redstone, astronaut Edwin Eugene “Buzz” Aldrin Jr., actor Mickey Rooney, radio personality Kemal Amin” Casey” Kasem, actor Peter Falk, actress Amanda Bynes, singer Joni Mitchell, and musician Brian Wilson.
It is estimated that there are 1.5 million adults under guardianship in the United States and this number is likely to increase. Many of these cases involve members of various communities. Surprisingly, accurate data on the number of guardianship cases and backgrounds of individuals is not available due to the lack of consistent statewide reporting.
The vast majority of guardianship cases do not involve celebrities but involve ordinary New Yorkers who have suffered from strokes, Alzheimer’s disease, Parkinson’s disease or who are hoarders, or who do subject to elder abuse. Most did not foresee the possibility that they would no longer be able to manage their own personal and financial affairs. They did not execute advance directives such as powers of attorney or health care proxies or trust agreements.
The dramatic consequences of guardianship
While these everyday cases may lack media attention, the stakes are extremely high. A finding of incapacity can result in the loss of basic rights such as a place to live; what medical treatment to receive; who can visit; where one can travel; and how its assets and income will be spent. With such vital aspects of life involved, it is essential that the determination of disability be made through a process that recognizes racial, economic and lifestyle differences.
The stakes in a criminal case are defined years of imprisonment. The issue of guardianship is in almost all cases the appointment of a guardian for the rest of the natural life of the person. The case in which a conservatorship in New York is reversed is highly unusual.
Guardianship cases begin under Section 81 of the Mental Hygiene Act with a petition that the allegedly incompetent person (the AIP) is in danger and is unaware of the danger. In every guardianship case, the court is required to appoint a court assessor. This person is “the eyes and ears of the court”. She or he reviews the motion, interviews all parties, investigates financial and personal circumstances, and reports to the judge. In some cases, the court will appoint a lawyer to act as counsel to the IPA. In cases where the need for protection is established, the court appoints a guardian. The guardianship court is therefore frequently looking for lawyers for the assigned functions.
The increased focus on the practice of guardianship has revealed that the bar that practices in this area lacks diversity. This misalignment can cause less than ideal results. Because of the constant need for appointments in guardianship cases, the judiciary is in a particularly powerful position to be able to redress this inequality.
Persons wishing to be appointed must apply to be placed on a list pursuant to 22 NYCRR Part 36 “Court Appointments”. Appointments must be made from the list, but the judge may appoint someone who is not on the list for good cause stated and in writing.
Leadership Diversity Initiative Programs
More than lofty goals, the GDI has produced concrete steps to try to ensure that the subjects of guardianship proceedings are represented by lawyers who reflect their experience.
The GDI has been implemented in the five counties that make up New York City. He proposed programs in which guardianship judges were panellists; continuing legal education; a mentorship program and a Lunch and Learn program that offers a variety of topics of interest to practitioners in the elder law community.
The program was strongly supported by the trusteeship bench. This is vital as it is the judges who appoint lawyers to fill the different roles in a guardianship case. These programs have enabled judges sitting in the guardianship party to provide invaluable information directly to attorneys considering the practice.
The initiative provided continuing legal education courses on fundamental aspects of guardianship cases, such as the role of the judicial evaluator. This specific program included speakers with extensive experience and knowledge. These speakers were able to give concrete advice on the general guardianship process, time constraints and the content of their report and to whom their report could be disclosed.
The initiative has created a mentorship program for lawyers who wish to be appointed as a forensic evaluator or lawyer at the AIP. Matching an experienced guardianship attorney with an attorney interested in entering the field can help attract underrepresented attorneys to the practice.
The practice of guardianship has evolved and continues to evolve from a niche area of law to mainstream practice. The growth of the practice of guardianship is an opportunity for lawyers to learn about the field and establish practices. However, entry into the law of guardianship requires much more than knowledge of Section 81. It requires a full understanding of the roles of each actor in the field of guardianship, such as the court assessor; appointed lawyer; the guardian of the person, the guardian of property and the judicial examiner. This is an extensive process, but through programs and other initiatives such as the GDI, information and education about the process will be more accessible and disseminated to all demographic groups.
Daniel G. Fish is a partner at McLaughlin & Stern.