A parent being separated from some of her children is a tragedy we too often see. The facts scenario is very common. An elderly parent becomes frail due often to a combination of advanced age, a serious illness, and the medications needed to remedy the illness. At that point, an adult child starts to take care of the parent. The instances that give rise to seeing an attorney is when that adult child starts limiting access to the parent. This often arises when the spending activity of the parent changes and siblings make accusations of financial exploitation of the parent. In other cases, it could be old sibling rivalries or resentment that get in the way. In the end, the sibling’s access can be blocked by the child.
The typical remedy was for the sibling to petition to the court for guardianship. This may have been difficult due to the inability of a non-primary caregiver to get a doctor to issue a Physician’s Report (a prerequisite to establishing a guardianship). While one can ask the court to obtain an examination of a senior, there are situations where it is unclear whether or not the senior has capacity. Thus, a court declaring someone incapacitated may be too harsh a step and is fraught with risk including having the petitioner pay all fees.
The Frail Elderly Individual Family Visitation Protection Act, which became effective at the beginning of this year, fills in the gap where a guardianship may be too extreme a step or not warranted under the circumstances. This Act enables family members to petition for the right to visit a loved one. The Act requires that the petitioner be spouse, adult child, adult grandchild, or other close relative of the frail elderly individual. The Act only applies when the elderly person is over age 60 and who the court determines is functionally impaired and thus unable to perform at least 2 activities of daily living without substantial human assistant. The bottom line is that that court is ascertaining whether or not the elderly individual is in fact frail and thus more likely to be dependent on the caregiver.
The court weighs several factors in determining whether or not to grant visitation to the elderly senior. The court considers:
- Nature and extent of the elderly’s functional impairment;
- The senior’s expressed preferences in the past regarding visitation;
- The history of visitation between the senior and the family member;
- The opinions of other family members; and
- Other factors the court finds relevant under the circumstances.
The goal of the inquiry is for the court to determine whether visitation is in the best interest of the senior. If it is, then visitation will be awarded.