The Guardianship Diversity Initiative
By Daniel G. Fish
In 2020, New York County guardianship judges, the New York Women’s Bar Association and the Franklin H. Williams Judicial Commission inaugurated the Guardianship Diversity Initiative (GDI) to increase and promote diversity in the Mental Hygiene Law Article 81 practice. The program has already been successful in expanding the opportunity for attorneys of color, bilingual individuals, members of LGBTQ+ and disability communities, as well as attorneys of diverse ethnic, religious and cultural backgrounds to serve in key roles in the guardianship process.
The Britney Spears California guardianship, while atypical of a New York guardianship, and highly tabloid, has had the salutary effect of educating many people about a process that until now has been largely unexamined and unfamiliar. 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 who are the subjects of guardianship in the United States and that number is likely to increase. Many of these cases involve members of diverse communities. Surprisingly, accurate data about the number of guardianship cases and the backgrounds of the individuals is not available due to the lack of uniform 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 are hoarders, or are the subject of elder abuse. Most have not planned for the possibility that they would no longer be able to manage their own personal and financial affairs. They have not executed advance directives such as powers of attorney, health care proxies or trust agreements.
The Drastic Consequences of Guardianship
While these everyday cases may lack media attention, the stakes are exceedingly high. A finding of incapacity can result in the loss of fundamental rights such as where to live; what medical treatment to receive; who can visit; where one can travel; and how one’s assets and income will be spent. With such vital aspects of life at issue, it is critical that the determination of incapacity be made upon a process that acknowledges racial, economic, and lifestyle differences.
The stakes in a criminal case are defined years of imprisonment. The stakes in a guardianship are in almost all cases the appointment of a guardian for the remainder of the person’s natural life. The case in which a guardianship in New York is reversed is highly unusual.
Guardianship cases begin under Mental Hygiene Law Article 81 with a petition asserting that the alleged incapacitated person (the AIP) is at risk and is not aware of the danger. In every guardianship case, the court is required to appoint a court evaluator. This person is the “eyes and ears of the court.” She or he reviews the petition, interviews all of the parties, investigates the financial and personal circumstances, and reports to the judge. In some cases, the court will appoint an attorney to serve as counsel to the AIP. In cases where the need for protection is established, the court appoints a guardian. The guardianship court is thus frequently seeking attorneys for the appointed roles.
The increased attention to the guardianship practice has revealed that the bar that practices in this area lacks diversity. This misalignment can result in less-than-ideal outcomes. 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.
Those seeking to be appointed must make application to be included on a list pursuant to 22 NYCRR Part 36 “Appointments by the Court.” Appointments must be made from the list, but the judge may appoint a person who is not on the list for good cause shown and in writing.
Guardianship Diversity Initiative Programs
More than lofty goals, the GDI has produced concrete steps to try to ensure that subjects of guardianship proceedings are being represented by attorneys who mirror their experience.
The GDI has been implemented in the five counties which comprise New York City. It has offered programs in which guardianship judges have been panelists; continuing legal education; a mentoring program, and a Lunch and Learn program that offers a variety of topics of interest to practitioners in the elder law community.
The program has been strongly supported by the guardianship bench. This is vital because these are the judges who appoint the attorneys to serve in the various roles in a guardianship case. These programs have allowed judges sitting in the guardianship part to provide invaluable insight directly to the attorneys who are considering the practice.
The initiative has provided continuing legal education courses on the core aspects of guardianship cases, such as the role of the court evaluator. That specific program included speakers with great experience and knowledge. These speakers were able to impart tangible advice about the general guardianship process, the time constraints, and the contents of their report and to whom their report could be divulged.
The initiative has created a mentoring program for those attorneys who are interested in being appointed as court evaluator or counsel to the AIP. Connecting an experienced guardianship attorney with an attorney interested in entering the field can help attract underrepresented attorneys to the practice.
The guardianship practice has evolved and is continuing to evolve from a niche area of law to a mainstream practice. The growth of the guardianship practice is an opportunity for attorneys to become familiar with the area and establish practices. However, entry into guardianship law requires much more than a knowledge of Article 81. It requires a full understanding of the roles of each player in the guardianship arena such as the court evaluator; appointed counsel; guardian of the person, guardian of the property and the court examiner. It 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 widespread to all demographics.
Daniel G. Fish is a partner at McLaughlin & Stern.