Guardianship and the Right to Visitation

 

 

 

 

 

 

As an elder care attorney in Chester County, PA, one of the reasons I often get calls for guardianship (and one of the most challenging situations legally) is the right for family to visit an impaired older adult. Often one family member, the agent under a power of attorney (or the caregiver of the parent), is restricting access to the parent. Sometimes it is because the agent has nefarious motivation and is harming or taking advantage of the older adult and sometimes it is because the family that wants to visit does so only to manipulate the older adult. Sometimes the limitation is because the older adult does not want to see or speak to someone for right on wrong reasons. So what are the rights in this situation?

 

First, an adult has no obligation to see his or her children, or anyone he or she does not want to see. This right applies even if the older adult is cognitively impaired. An impaired person can make decisions, even bad ones, until a judge takes away his or her ability to make decisions. However, if the cognitive impairment is affecting judgment, it may be in the older adult’s best interest to seek the appointment of a guardian so that the older adult’s care can be managed in a safe and beneficial manner.

 

For some older adults, access to family and friends is the only thing they live for. Even impaired, the socialization of seeing and interacting with family benefits them mentally and physically. Isolation often hastens cognitive and physical decline and vulnerability to being exploited.

 

The Borchard Foundation Center on Law and Aging, and the ABA Commission on Law and Aging published Guardianship and the Right to Visitation, Communication, and Interaction: A Legislative Fact Sheet, which examines the role of visitation for a person subject to guardianship from the point of the view of the person, the guardian, and the court, and summarizes recent state legislation. To read that fact sheet, click here https://www.americanbar.org/content/dam/aba/administrative/law_aging/2018-05-24-visitation-legislative-factsheet.pdf.

 

Balancing the Right to Visitation with the Duty to Prevent Harm and Exploitation

 

While some states impose an overt obligation on guardians to allow and encourage visitation, many state’s laws are silent on visitation. Often the obligation of a guardian to allow and encourage visitation comes under their general fiduciary obligation. In Pennsylvania, the law also imposes an obligation to carry out the expressed wishes and preferences of the incapacitated person to the extent those expressed wishes do not harm the incapacitated person. The right of self-determination is explicit in the law and the law encourages using the least restrictive alternative, when available. As a practical matter, many incapacitated persons live in a community and not in a facility where supervision is easier. In most cases, guardians are not supervising the incapacitated person 24/7/365, so they may be more cautious about putting their ward at risk.

 

A guardian has to weigh the risks and benefits of independence and self-determination against the duty to ensure the well-being of the incapacitated person.

 

From 2015 – 2018, several states addressed the right to visitation and communication in legislation, including Arizona, California, Florida, Hawaii, Indiana, Illinois, Iowa, Louisiana, Maine, Maryland, Nebraska, Nevada, New Mexico, New York, Ohio, Rhode Island, South Dakota, Tennessee, Texas, Utah, Virgin Islands, Virginia, and West Virginia. Pennsylvania has not legislatively addressed this issue yet.

 

State laws differ widely in approach. Several states expressly grant the right to visitation to people subject to guardianship. Others instead focus on the need to maintain existing connections. For example, a recent California amendment specifies that “every adult in this state has the right to visit with and receive mail and telephone or electronic communication;” while Arizona’s statutory language provides that “a guardian shall encourage and allow contact between the person with a guardian and other individuals.” State laws address many facets of the right to visitation, interaction, and communication in guardianship, including the right to visitation, evidence of prior relationships, and the rights of families and other interested parties.

 

The Rights of Family and Other Interested Parties

 

The rights of the incapacitated person need to take priority over the rights of family to visit them. If the person does not want to have contact with someone or wants the contact limited, the guardian should respect their wishes. Some states grant family members or other interested parties the right to petition for visitation in court if visitation has been denied by the guardian. In Texas, an adult child of an incapacitated person can file an application for visitation and request a hearing. Utah’s statutory language prohibits the guardian from preventing a person from associating with a relative or “qualified acquaintance,” and relatives or qualified acquaintances may petition the court to rescind or modify a visitation order. In Pennsylvania, while not explicitly for visitation issues, a family member can file a petition for review to ask the court to review the guardian’s actions for appropriateness. This can include the guardian’s refusal to allow appropriate visitation. A guardian cannot prohibit visitation solely because of the inconvenience of the guardian. It must be due to the need to protect the incapacitated person.

 

The Role of the Courts

 

Some jurisdictions now allow courts the authority to set the terms of visitation rather than leave this to the guardian. In South Dakota, Rhode Island, and Tennessee, the guardian must seek a court order to restrict visitation, with limited exceptions. Rhode Island’s statute specifies that a guardian may move the court to restrict communication/ visitation for good cause, including: existence of a protective order; whether abuse, neglect or exploitation of the individual by the person seeking access has occurred or is likely; and any documented wishes of the individual to reject the communication/visitation. And in Tennessee, only the court — not the guardian — may remove the individual’s right to communication, visitation, or interaction.

 

The Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA) and the Right to Visitation, Communication, and Interaction

 

UGCOPAA, passed by the Uniform Law Commission in 2017, prioritizes visitation as important to the well-being of people subject to guardianship. “[R]ecognizing that individuals subject to guardianship and conservatorship benefit from visitation and communication with third parties, the Act sets forth specific rights to such interactions.” [2]

 

The Act provides protections for the person’s rights on this subject from the initial appointment of the guardian: the person is entitled to receive notice of the right to communicate, visit or interact with others, including in-person visits, phone calls, personal mail, electronic communications, and social media. (§ 311(b)(6)).

 

Moreover, UGCOPAA prohibits the guardian from restricting visitation, unless: (A) the restriction is authorized by the court; (B) there is a protective order or protective arrangement that limits contact; or (C) the guardian “has good cause to believe the restriction is necessary because interaction with a specified person poses a risk of significant physical, psychological or financial harm,” and the restriction is for no more than seven business days if the person with whom contact is restricted has a family or pre-existing social relationship or for 60 days if a family or social relationship does not exist. (§§311(b)(6); 315(c)).

 

Article V of the UGCOPAA also provides a means for a court to restrict visits when they would cause harm without appointing a guardian. The court can order a “protective arrangement” instead of a guardianship. The court may direct visitation or supervised visitation; or restrict access “by a person whose access places [the individual] at serious risk of physical or psychological harm” – or by a person who uses fraud, coercion, duress or deception, and control.

 

Finally, the Act requires that family members and others receive key information about important changes in the person’s conditions or circumstances. (Prefatory Note, p. 3. See §§310(e); 411(e)). This would seem, barring special circumstances, a step in the right direction.

 

Federal law specifies resident rights to visitation unless the nursing home, in good faith, believes the visitor to be harmful to the resident or other residents. The Long-Term Care Ombudsman can assist if visitation issues arise in a state licensed facility.

 

Improving and preserving the access of people with guardians to visitation, communication, and interaction can provide great benefit to their quality of life and protect their basic rights. Guardians, courts, family members, and interested parties all play a role in encouraging people with guardians to avoid isolation. Professional standards, the Uniform Law, and many state legislatures recognize the tremendous importance of visitation, communication, and interaction, and charge courts and guardians with supporting it whenever possible.

 

Need an elder care lawyer in Chester County, PA, or the surrounding areas? Learn everything you need to know about guardianship by contacting Slutsky Elder Law today at 610-546-2746.