December 01, 2018 Visitation, Communication & Interaction Under Guardianship

Guardianship and the Right to Visitation

An Overview of Recent State Legislation

Dari Pogach, Staff Attorney, ABA Commission on Law and Aging

Visitation, communication, and interaction under guardianship is an important and complex issue for courts, guardians, and disability and elder rights advocates. The issue is of great importance because contact with family, friends, and community can have a major impact on health and well-being. Over the last several years, the right to visitation has gained attention from the media and some state legislatures when the adult children of incapacitated celebrities such as Casey Kasem and Peter Falk petitioned the courts for the right to visit their parents over a guardian’s objections. As the public becomes more aware of the potential risks of guardianship — including isolation from friends, family, and community — more states are debating hotly contested visitation bills.

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. For more information on visitation, communication, and interaction in guardianship, contact dari.pogach@americanbar.org.

Preserving a person’s ability to visit, communicate, and interact is essential to their quality of life. Unfortunately, estrangement from family, friends, and acquaintances can be a precursor and a consequence of guardianship. The factors that led to the appointment of a guardian – mental illness, dementia, poverty, abuse, and exploitation – may have also led to unwanted isolation. Family, friends, and professionals should be aware of the potentially devastating effects of isolation on the person; loss of ties to friends, family, and social networks can have a negative effect on anyone’s physical and mental health. Isolation leads to an increased risk for depression, cognitive decline and dementia, and even premature death. [1]

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

The right to visit, communicate, and interact with others invokes the larger debate over guardianship: how can a guardian preserve as much of an individual’s autonomy as possible while ensuring protection from harm and exploitation? Historically, guardianships transferred most right to choose and maintain relationships and connections. Several state statutes, the 2017 Uniform Guardianship Conservatorship and Other Protective Arrangements Act (UGCOPAA), National Guardianship Association (NGA) Standards of Practice, and National Probate Court Standards, reject the wholesale transfer of visitation and communication rights to the guardian. An increasing number of state laws charge guardians with the duty to encourage and support visitation in accordance with a person’s values and preferences.

A guardian may have to weigh the risks and benefits of maximizing independence and self-determination against the guardian’s duty to ensure the safety and well-being of the person. (See NGA Standard 8). Guardians have the duty to “promote social interactions and meaningful relationships consistent with the preferences of the person and encourage and support the person in maintaining contact with family and friends, as defined by the person, unless it will substantially harm the person.” (See Standard 4).

NGA Standards strongly favor encouraging visitation whenever possible. In addition to the guidance cited above, the following NGA Standards of Practice support the guardian’s role in promoting visitation:

  • Identify and advocate for the person’s goals, needs, and preferences. (Standard 7).
  • Ask the person what he or she wants. (Standard 7).
  • Encourage the person to participate, to the maximum extent of the person’s abilities, in all decisions that affect him or her. (Standard 9).
  • Acknowledge the person’s right to interpersonal relationships. (Standard 10).
  • Consider the proximity of those people and activities that are important to the person when choosing a residential setting. (Standard 12).

State Guardianship Legislation Addressing Visitation

States are increasingly passing laws that address visitation. 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.

State laws differ widely in approach. Several states expressly grant the right to visitation to people subject to guardianship. Others do not use the language of “rights” at all, instead focusing on the need to maintain 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

Addressing the rights of loved ones to visit over a guardian’s objections raises several questions. When should a guardian restrict visitation? Is a suspicion of the interested party’s bad intent sufficient, or should the guardian have some evidence of wrongdoing? If the person does not want to have contact with a loved one, or seeks limited contact, such as phone calls but not in-person visits, 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 individual subject to guardianship has the right to file an application for visitation in court 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 Arizona and Florida interested parties can ask the court for a contact order or to review the guardian’s decisions about visitation.

In addition to the right to request visits, some states and UGCOPAA guarantee a right to information for relatives and loved ones about significant changes in the condition or circumstances of the individual. For instance, in West Virginia, relatives who have been granted access by court order to the person subject to guardianship are entitled to notice of death and funeral arrangements, admission to medical facility, and change of location.

Bills of Rights that Include the Right to Visitation

Some states have passed broad-based bills of rights for people subject to guardianship that include the right to visitation, interaction, and communication. These rights are not absolute — there are always exceptions when a guardian or court may prohibit visitation if it would cause harm to the person. For example, in Florida a person retains the right to visits and communications, but the court may remove the right to make decisions about “social environment” and delegate decision-making authority to the guardian. Nevada’s “Wards’ Bill of Rights” guarantees the right to telephone calls, personal mail, and visitors, unless the guardian and court determine that correspondence with a particular visitor would cause harm.

Evidence of Prior Relationships May be Sufficient to Presume Consent

Even if the person subject to guardianship cannot con­sent to visits or express interest in visits, a guardian can still encourage positive relationships. Several state statutes specify that evidence of prior relationships is a sufficient basis to presume consent or refusal to consent to visits. For instance, in South Dakota consent, or refusal to consent to visits, can be presumed based on proof of the nature of the prior relationship with an individual.

The Role of Courts

Traditionally, state statutes gave guardians unfettered authority to restrict visits and communication to protect individuals under their care. However, some jurisdictions now assign not to guardians but rather to courts the authority to set the terms of visitation. National Probate Court Standards recognize a court may require the guardian to seek the court’s permission before limiting visitation. 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.

In several states, the court may sanction, and even remove, a guardian for preventing a person from visiting, communicating, and interacting with others. For instance, in Louisiana, failure of the curator (guardian) to allow visitation can result in removal of the curator. In Rhode Island, sanctions may include an order to pay court costs and reasonable attorneys’ fees of the other party or parties. These sanctions shall not be paid out of the estate of the person subject to guardianship. Some state statutes also include procedural protections for individuals seeking visitation, including the right to a hearing, time limits, notice, standard of proof, and attorneys’ fees. For example, in Nebraska, a family member who is denied visitation may petition the court. If the individual has a guardian, the petition is to be filed in the county court with jurisdiction over the guardianship case. If the individual’s health is in decline, the court shall hold an emergency hearing.

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

UGCOPPA, 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 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 to receive key information about important changes in the person’s conditions or circumstances. (Prefatory Note, p. 3. See §§310(e); 411(e)).

Other Relevant Topics

The Right to Visitation in Nursing Homes

Federal nursing home regulations specify that the resident has the right to visitation, and the facility must provide immediate access to any resident by immediate family members or other relatives, subject to the resident’s right to deny or withdraw consent at any time. The resident also has a right to communicate with a long-term care ombudsman, as well as a representative of a protection and advocacy agency. The law does not specify whether the appointment of a guardian transfers these rights to the guardian. Regardless, the nursing facility cannot prohibit visitation. (42 C.F.R. § 483.10).

The Role of Mediation

A mediator may be able to resolve visitation disputes without going to court. If a dispute cannot be addressed through mediation, a new dispute resolution process called Eldercaring Coordination may be useful in resolving the increasingly common high conflict “family feud” situations. According to the Association for Conflict Resolution, Eldercaring Coordination is “a dispute resolution option specifically for high-conflict cases involving the care, needs and safety of elders.” [3] Coordinators, training protocols, and a court pilot project template are available at https://www. eldercaringcoordinationfl.org/.

Conclusion

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.

About the Author:

Dari Pogach is a staff attorney at the ABA Commission on Law and Aging. She specializes in adult guardianship reform and alternatives to guardianship. She has provided direct legal services to indigent clients for several years, including as a staff attorney at Disability Rights D.C. of University Legal Services, the District of Columbia’s protection and advocacy program for people with disabilities and Quality Trust for Individuals with Disabilities. She also has substantive experience in policy and legislative advocacy, and has testified at numerous legislative hearings, provided comments to proposed regulations, and written public reports with recommendations for improving local laws and practices.

End Notes

1. See Julianne Holt-Lunstad, The Potential Public Health Relevance of Social Isolation and Loneliness: Prevalence, Epidemiology, and Risk Factors, Public Policy & Aging Report, The Gerontological Society of America, Vol. 27 No. 4 at 128 (2017).

2. See Prefatory Note p. 3. For a detailed description of all the Act’s strong provisions on visitation, communication, and interaction - §§ 311, 314, 315, 316, 502, 503 - see Guardianship and the Right to Visitation, Communication, and Interaction: A Legislative Fact Sheet).

3. See the Association for Conflict Resolution (ACR) Guidelines for Eldercaring Coordination, which includes ethical principles for Eldercaring Coordinators, training protocols, and a court pilot project template (https://www.eldercaringcoordinationfl. org/association-for-conflict-resolution.html). See also Bronson and Fieldstone, From Friction to Fireworks to Focus: Eldercaring Coordination Sheds Light in High-Conflict Cases,  Experience, Senior Lawyers Division of American Bar Association, Vol. 24, Number 3, at 29 (2015).

[Editor’s Note: Please see Sarah Gross’ article on Eldercaring Coordination on page 22 of this publication.]