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IOWA
Senate File 306
AN ACT RELATING TO COMMUNICATION AND VISITATION BETWEEN AN ADULT WARD AND ANOTHER PERSON
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
Section 1. Section 633.635, subsection 1, Code 2015, is amended by adding the following new paragraph:
NEW PARAGRAPH. 0f. Placing reasonable time, place, or manner restrictions on communication, visitation, or interaction between the adult ward and another person.
Section 2. Section 633.635, subsection 2, Code 2015, is amended by adding the following new paragraph:
NEW PARAGRAPH. d. Denying all communication, visitation, or interaction by an adult ward with a person with whom the adult ward has expressed a desire to communicate, visit, or interact or with a person who seeks to communicate, visit, or interact with the adult ward. A court shall approve the denial of all communication, visitation, or interaction with another person only upon a showing of good cause by the guardian.
Section 3. NEW SECTION. 633.637a Rights of ward under guardianship.
An adult ward under a guardianship has the right of communication, visitation, or interaction with other persons upon the consent of the adult ward, subject to section 633.635, subsection 1, paragraph "0f", and section 633.635, subsection 2, paragraph "d". If an adult ward is unable to give express consent to such communication, visitation, or interaction with a person due to a physical or mental condition, consent of an adult ward may be presumed by a guardian or a court based on an adult ward's prior relationship with such person.
PAM JOCHUM - President of the Senate
KRAIG PAULSEM - Speaker of the House
I hereby certify that this bill originated in the Senate and is known as Senate File 306, Eighty-sixth General Assembly.
MICHAEL E. MARSHALL - Secretary of the Senate
Source : https://www.legis.iowa.gov/legislation/BillBook?ga=86&ba=SF306
TEXAS
AN ACT
Relating to access to and receipt of certain information regarding a ward by certain relatives of the ward.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter B, Chapter 1151, Estates Code, is amended by adding Sections 1151.055 and 1151.056 to read as follows:
Sec. 1151.055. APPLICATION BY CERTAIN RELATIVES FOR ACCESS TO WARD; HEARING AND COURT ORDER.
- (a) This section applies to a relative described under Sections 1101.001(b)(13)(A)-(D).
- (b) A relative of a ward may file an application with the court requesting access to the ward, including the opportunity to establish visitation or communication with the ward.
- (c) Except as provided by Subsection (d), the court shall schedule a hearing on the application not later than the 60th day after the date an application is filed under Subsection (b). The court may grant a continuance of a hearing under this section for good cause.
- (d) If an application under Subsection (b) states that the ward's health is in significant decline or that the ward's death may be imminent, the court shall conduct an emergency hearing as soon as practicable, but not later than the 10th day after the date the application is filed under Subsection (b).
- (e) The guardian of a ward with respect to whom an application is filed under Subsection (b) shall be personally served with a copy of the application and cited to appear at a hearing under:
(1) Subsection (c) at least 21 days before the date of the hearing; and
(2) Subsection (d) as soon as practicable.
- (f) The court shall issue an order after notice and a hearing under this section. An order issued under this section may:
(1) prohibit the guardian of a ward from preventing the applicant access to the ward if the applicant shows by a preponderance of the evidence that:
(A) the guardian's past act or acts prevented access to the ward; and
(B) the ward desires contact with the applicant;
and
(2) specify the frequency, time, place, location, and any other terms of access.
- (g) In deciding whether to issue or modify an order issued under this section, the court:
(1) shall consider:
(A) whether any protective orders have been issued against the applicant to protect the ward;
(B) whether a court or other state agency has found that the applicant abused, neglected, or exploited the ward;
and
(C) the best interest of the ward; and
(2) may consider whether:
(A) visitation by the applicant should be limited to situations in which a third person, specified by the court, is present; or
(B) visitation should be suspended or denied.
- (h) The court may, in its discretion, award the prevailing party in any action brought under this section court costs and attorney's fees, if any.
Court costs or attorney's fees awarded under this subsection may not be paid from the ward's estate.
Sec. 1151.056. GUARDIAN'S DUTY TO INFORM CERTAIN RELATIVES
ABOUT WARD'S HEALTH AND RESIDENCE. (a) This section applies with respect to relatives described under Sections
1101.001(b)(13)(A)-(D).
(b) Except as provided by Subsection (e), the guardian of an adult ward shall as soon as practicable inform relatives if:
- (1) the ward dies;
- (2) the ward is admitted to a medical facility for acute care for a period of three days or more;
- (3) the ward's residence has changed; or
- (4) the ward is staying at a location other than the ward's residence for a period that exceeds one calendar week.
(c) In the case of the ward's death, the guardian shall inform relatives of any funeral arrangements and the location of the ward's final resting place.
(d) A relative entitled to notice about a ward under this section may elect to not receive the notice by providing a written request to that effect to the guardian. A guardian shall file any written request received by the guardian under this subsection with the court.
(e) On motion filed with the court showing good cause and after a relative is provided an opportunity to present evidence to the court under Subsection (f), the court, subject to Subsection (g), may relieve the guardian of the duty to provide notice about a ward to a relative under this section.
(f) A copy of the motion required under Subsection (e) shall be provided to the relative specifically named in the motion unless the guardian was unable to locate the relative after making reasonable efforts to discover and locate the relative. The relative provided notice under this subsection may file evidence with the court in response to the motion, and the court shall consider that evidence before making a decision on the motion.
(g) In considering a motion under Subsection (e), the court shall relieve the guardian of the duty to provide notice about a ward to a relative under this section if the court finds that:
- (1) the motion includes a written request from a relative electing to not receive the notice;
- (2) the guardian was unable to locate the relative after making reasonable efforts to discover and locate the relative;
- (3) the guardian was able to locate the relative, but was unable to establish communication with the relative after making reasonable efforts to establish communication;
- (4) a protective order was issued against the relative to protect the ward;
- (5) a court or other state agency has found that the relative abused, neglected, or exploited the ward; or
- (6) notice is not in the best interest of the ward.
Source: http://www.guardianshipreform.org/visitation-reform-law.html
CALIFORNIA
Assembly Bill No. 1085
An act to amend Section 2351 of, and to add Sections 2361 and 4691 to, the Probate Code, relating to personal representatives.
[ Approved by Governor July 14, 2015. Filed with Secretary of State July 14, 2015. ]
LEGISLATIVE COUNSEL'S DIGEST
AB 1085, Gatto. Personal representatives: conservators and attorneys-in-fact.
(1) Existing law requires a conservator of a person to be responsible for the care, custody, control, and education of a conservatee, except where the court, in its discretion, limits the powers and duties of the conservator. Existing law also provides that the conservator’s control of the conservatee shall not extend to personal rights retained by the conservatee, including, but not limited to, the right to receive visitors, telephone calls, and personal mail, unless specifically limited by a court order.
This bill would provide that a court order may be issued that specifically grants the conservator the power to limit or enforce the conservatee’s right to receive visitors, telephone calls, and personal mail. The bill would state findings and declarations of the Legislature in this regard.
(2) Existing law additionally authorizes an adult with capacity to execute a power of attorney for health care.
This bill would require a conservator to provide notice of a conservatee’s death by mailing a copy of the notice to specified persons, as provided. The bill would require an attorney-in-fact, if directed by the principal in a power of attorney for health care, upon the death of the principal, to inform those individuals whose names are provided by the principal for that purpose.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NO
Bill Text
The people of the State of California do enact as follows:
SECTION 1.
The Legislature finds and declares that every adult in this state has the right to visit with, and receive mail and telephone or electronic communication from, whomever he or she so chooses, unless a court has specifically ordered otherwise.
SEC. 2.
Section 2351 of the Probate Code is amended to read:
2351.
(a) Subject to subdivision (b), the guardian or conservator, but not a limited conservator, has the care, custody, and control of, and has charge of the education of, the ward or conservatee. This control shall not extend to personal rights retained by the conservatee, including, but not limited to, the right to receive visitors, telephone calls, and personal mail, unless specifically limited by court order. The court may issue an order that specifically grants the conservator the power to enforce the conservatee’s rights to receive visitors, telephone calls, and personal mail, or that directs the conservator to allow those visitors, telephone calls, and personal mail.
(b) Where the court determines that it is appropriate in the circumstances of the particular conservatee, the court, in its discretion, may limit the powers and duties that the conservator would otherwise have under subdivision (a) by an order stating either of the following:
(1) The specific powers that the conservator does not have with respect to the conservatee’s person and reserving the powers so specified to the conservatee.
(2) The specific powers and duties the conservator has with respect to the conservatee’s person and reserving to the conservatee all other rights with respect to the conservatee’s person that the conservator otherwise would have under subdivision (a).
(c) An order under this section (1) may be included in the order appointing a conservator of the person or (2) may be made, modified, or revoked upon a petition subsequently filed, notice of the hearing on the petition having been given for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1.
(d) The guardian or conservator, in exercising his or her powers, may not hire or refer any business to an entity in which he or she has a financial interest except upon authorization of the court. Prior to authorization from the court, the guardian or conservator shall disclose to the court in writing his or her financial interest in the entity. For the purposes of this subdivision, “financial interest” shall mean (1) an ownership interest in a sole proprietorship, a partnership, or a closely held corporation, or (2) an ownership interest of greater than 1 percent of the outstanding shares in a publicly traded corporation, or (3) being an officer or a director of a corporation. This subdivision shall apply only to conservators and guardians required to register with the Statewide Registry under Chapter 13 (commencing with Section 2850).
SEC. 3.
Section 2361 is added to the Probate Code, to read:
2361.
A conservator shall provide notice of a conservatee’s death by mailing a copy of the notice to all persons entitled to notice under Section 1460 and by filing a proof of service with the court, unless otherwise ordered by the court.
SEC. 4.
Section 4691 is added to the Probate Code, to read:
4691.
If directed by the principal in a power of attorney for health care, an attorney-in-fact shall, upon the death of the principal, inform those individuals whose names are provided by the principal to the attorney-in-fact for that purpose.
Source: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB1085
WISCONSIN
2015 SENATE BILL 487
December 29, 2015 - Introduced by Senators Moulton, Lasee and Olsen,
cosponsored by Representatives Spiros, Ballweg, Bernier, Duchow,
Horlacher, Knodl, Krug, T. Larson, A. Ott, Sinicki, Skowronski, Thiesfeldt
and Tittl. Referred to Committee on Health and Human Services.
An Act to create 50.085 of the statutes; relating to: visitation of residents of certain facilities by adult children.
This bill allows an adult child who is being prevented from visiting or communicating with his or her parent to petition a court for visitation. The bill
applies to a parent who is a resident of a hospital, hospice, nursing home, or community-based residential facility. The court may not grant an adult child's
petition for visitation if the court finds that the resident, while having the capacity to evaluate and communicate decisions regarding visitation, expresses a desire to not
have visitation with that adult child or that the visitation would not be in the resident's best interest.
For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
Section 1. 50.085 of the statutes is created to read:
50.085 Visitation by adult children. (1) Definitions. In this section:
(a) "Adult child" means an individual who is at least 18 years of age and who is related to a resident biologically, through adoption, through the marriage or former marriage of the resident to the biological parent of the adult child, or by a judgment of parentage entered by a court of competent jurisdiction.
(b) "Resident" means an adult resident of any of the following:
- 1. A hospital, as defined in s. 50.33 (2).
- 2. A hospice, as defined in s. 50.90 (1).
- 3. A nursing home, as defined in s. 50.01 (3).
- 4. A community-based residential facility, as defined in s. 50.01 (1g).
(c) "Visitation" means an in-person meeting or any telephonic, written, or electronic communication.
(2) Petition for visitation. If an adult child is being denied visitation with a resident the adult child may petition a court to compel visitation with the resident.
The court may not issue an order compelling visitation if the court finds any of the following:
(a) The resident, while having the capacity to evaluate and communicate decisions regarding visitation, expresses a desire to not have visitation with that adult child.
(b) Visitation between the petitioning adult child and the resident is not in the best interest of the resident.
Source: https://docs.legis.wisconsin.gov/2015/related/proposals/sb487
VIRGINIA
2016 SESSION
SB 466 Guardianship; communication between incapacitated person and others.
Introduced by: Frank W. Wagner
SUMMARY AS PASSED:
Guardianship; communication between incapacitated person and others. Provides that a guardian shall not unreasonably restrict an incapacitated person's ability to communicate with, visit, or interact with other persons with whom the incapacitated person has an established relationship. This bill incorporates SB 632 and is identical to HB 342.
SUMMARY AS PASSED SENATE:
Guardianship; communication between incapacitated person and others. Provides that an incapacitated person for whom a guardian has been appointed or a power of attorney executed has the right of communication, visitation, or interaction with other persons with whom the incapacitated person has expressed a desire to communicate, visit, or interact. This bill incorporates SB 632.
SUMMARY AS INTRODUCED:
Guardianship; communication between incapacitated person and others. Provides that an incapacitated person for whom a guardian has been appointed has the right of communication, visitation, or interaction with other persons with whom the incapacitated person has expressed a desire to communicate, visit, or interact. The bill provides that a guardian may place reasonable time, place, or manner restrictions on communication, visitation, or interaction between the incapacitated person and another person; however, the guardian may deny communication, visitation, or interaction only with consent of the court and upon good cause shown.
Source: https://lis.virginia.gov/cgi-bin/legp604.exe?161+sum+SB466S
ALABAMA
HB99 172944-1 by Representative Johnson (R)
RFD: Judiciary, First Read: 03-FEB-16
SYNOPSIS: Existing law does not specifically authorize an adult child to petition for visitation with a parent or dependent adult.
Existing law provides that the conservator or guardian, or both, of a dependent adult who is the subject of a conservatorship, also known as a conservatee, is responsible for the care, custody, control, and education of the conservatee, unless the court expressly limits those powers.
This bill would specify that a spouse's, conservator's, or guardian's control of a conservatee does not extend to the right to refuse visitors, telephone calls, and other correspondence from an adult child or relative of a first degree who is not the conservator or a guardian, unless these rights are expressly limited by court order.
This bill would establish a procedure by which an adult child or relative of the first degree may petition for visitation with a conservatee from whom he or she has been isolated, and would authorize a court to grant reasonable visitation with that conservatee.
This bill would also require the spouse, conservator, or guardian to inform the adult children, relatives of a first degree, or both, whenever a conservatee dies or is admitted to a medical facility for acute or chronic care, or both, for a period of three days or more.
A BILL TO BE ENTITLED AN ACT
To specify a procedure by which an adult child or relative of a first degree who has been isolated from a conservatee may petition for court ordered reasonable visitation rights with the conservatee.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1, For the purposes of this act, the following terms have the following meanings:
- (1) ADULT CHILD. A person who is 18 years or age or older who is the child of the parent, biologically or through adoption, who resides in this state, and who is not the conservator of the parent.
- (2) CONSERVATEE. A person who is an elderly mother or father and is a dependent adult.
- (3) RELATIVE OF A FIRST DEGREE. A person sharing 50 percent or more of the same genes, such as a sibling, child, or parent, or a person who shares this same relationship through adoption.
- (4) VISITATION. Any in-person meeting or any telephonic mail or electronic communication between a conservatee and his or her adult child.
- (5) VISITATION ORDER. An order issued by the circuit court after notice and hearing regarding the visitation with a parent by his or her adult child specifying the approval or disapproval of any visitation and the specifics of that visitation including, but not limited to, the time, place, and manner of the visitation.
Section 2.
- (a) An adult child or a relative of a first degree may file a petition to compel visitation with a conservatee from whom he or she has been isolated.
- (b) Except as provided by subsection (c), the court shall schedule a hearing on a petition not later than 60 days after the petition is filed under subsection (a).
- (c) If the petition filed under subsection (a) states that the conservatee's health is in significant decline or that the conservatee's death may be imminent, the court
shall conduct an emergency hearing as soon as practicable, but not later than 10 days after the date the petition is filed under subsection (a).
- (d) In ruling on the petition, the court shall determine if the conservatee has sufficient capacity to make a knowing and intelligent visitation decision.
- (e) If the court determines the conservatee has sufficient capacity to make a knowing and intelligent visitation decision, the court shall grant visitation if the conservatee expresses a desire for visitation.
- (f) If the conservatee lacks sufficient capacity to make a knowing and intelligent visitation decision, the court shall determine if the conservatee would want visitation. In determining whether or not the conservatee would want visitation, the court shall consider all of the following:
- (1) The history of the relationship between the conservatee and the petitioner.
- (2) Any statements made by the conservatee expressing his or her desire to have visitation with the petitioner.
- (3) Any power of attorney or estate planning document that expresses an opinion on visitation with the petitioner.
- (4) A report of an investigation conducted by the Department of Human Resources regarding the proposed visitation.
- (5) A report of investigation conducted by the guardian ad litem.
- (6) A report of investigation of any person legally authorized to seek a protective order on behalf of the conservatee.
- (7) A physician's statement and medical records regarding the conservatee's mental and physical capacity.
- (g) If the court determines that the conservatee would want visitation, the court shall grant reasonable visitation, provided the court determines that visitation is in the best interests of the conservatee.
- (h) If the court determines that the conservatee has sufficient capacity to make a knowing and intelligent visitation decision and the conservatee expresses that he or she does not desire visitation, then the court shall not grant visitation.
- (i) A determination by the court regarding capacity under this section may not be used as evidence of capacity in any other proceeding.
- (j) The petition may be filed in the circuit court of either of the following counties:
- (1) The county in which the conservatee resides.
- (2) The county in which the conservatee is temporarily living.
Section 3. The petition shall state all of the following information:
- (1) The condition of the conservatee's physical and mental health, to the extent known by the petitioner.
- (2) The efforts to obtain visitation with the conservatee.
- (3) The proposed visitation that is sought.
- (4) The deficit or deficits, if any, in the conservatee's mental functions that are impaired and an identification of a link between the deficit or deficits and the conservatee's inability to respond knowingly and intelligently to queries about the requested visitation.
- (5) The names and addresses, so far as they are known to the petitioner, of the spouse and relatives of the first degree of the conservatee.
Section 4. Upon the filing of the petition, the court shall determine if the conservatee has retained an attorney or if the conservatee plans to retain an attorney.
Section 5.
- (a) Not less than 15 days before the hearing, notice of the time and place of the hearing and a copy of the petition shall be personally served on the conservatee and the conservatee's attorney, if any.
- (b) Not less than 15 days before the hearing, notice of the time and place of the hearing and a copy of the petition shall be mailed to the following persons:
- (1) The conservatee's spouse, if any, at the address stated in the petition.
- (2) The conservatee's relatives named in the petition at each relative's address stated in the petition.
Section 6. Before ruling on the petition, the court may order the Department of Human Resources to do any or all of the following:
- (1) Conduct interviews with the following:
- a. The conservatee.
- b. All petitioners.
- c. The conservatee's spouse, adult child or children, and relatives within the first degree.
- d. To the extent practical, neighbors and, if known, close friends of the conservatee.
- (2) Inform the conservatee of the contents of the petition.
- (3) Determine whether the conservatee has the capacity to consent to the requested visitation.
- (4) Determine whether the conservatee desires the proposed visitation.
- (5) Report to the court in writing, at least five days before the final hearing, concerning subdivisions (1) to (4), inclusive.
- (6) Mail, at least five days before the hearing, a copy of the report referred to in subdivision (5) to all of the following:
- a. The attorney, if any, for the petitioner.
- b. The attorney, if any, for the conservatee.
- c. The spouse and relatives within the first degree of the conservatee, unless the court determines that the mailing will result in harm to the conservatee.
- d. Any other persons as the court orders.
- (7) The report required by this section is confidential and shall be made available only to the parties, persons described in subdivision (6), persons given notice of the petition who have requested this report or who have appeared in the proceedings, their attorneys, and the court.
- (8) If the court investigator has performed an investigation within the preceding 12 months and furnished a report thereon to the court, the court may order, upon good cause shown, that another investigation is not necessary or that a more limited investigation may be performed.
Section 7.
- (a) In ruling on the petition, the court shall determine whether the conservatee has sufficient capacity to make a knowing and intelligent visitation decision.
- (b) The court shall grant reasonable visitation if both of the following conditions exist:
- (1) The court determines that the conservatee has sufficient capacity to make a knowing and intelligent visitation decision.
- (2) The conservatee expresses a desire for visitation with the petitioner.
- (c) If the court determines that the conservatee lacks the capacity to make a knowing and intelligent visitation decision, the court shall determine whether the conservatee would want visitation with the petitioner by taking into consideration all of the following:
- (1) The history of the relationship between the conservator and the petitioner.
- (2) Any statements made by the conservatee expressing a desire to have visitation with the petitioner.
- (3) Any power of attorney or other document that expresses an opinion on visitation with the petitioner.
- (4) The report of the Department of Human Resources under Section 6.
- (d) The court shall not grant visitation if both of the following circumstances exist:
- (1) The court determines the conservatee has sufficient capacity to make a knowing and intelligent visitation decision.
- (2) The conservatee expresses that the petitioner not be granted visitation.
- (e) A determination by the court regarding capacity under this act is not admissible as evidence in an other legal proceeding.
- (f) The court shall order each petitioner to pay the reasonable fees and expenses of any attorney appointed under this act.
Section 8.
- (a) This section applies with respect to an adult child or a relative of a first degree pursuant to Section 1.
- (b) Except as provided under subsection (d), the conservator shall as soon as practicable inform relatives of any of the following:
- (1) The conservatee dies.
- (2) The conservatee is admitted to a medical facility for acute or chronic care for a period of three days or more.
- (3) The conservatee's residence has changed.
- (4) The conservatee is staying at a location other than the conservatee's residence for a period that exceeds one calendar week.
- (c) In the case of the conservatee's death, the conservator shall inform relatives of any funeral arrangements and the location of the conservatee's final resting place.
- (d) The court shall relieve a conservator of the duty to provide notice to a relative under this section if the court finds that:
- (1) A relative entitled to notice about the conservatee has submitted a written request to the conservator electing not to receive notice about a conservatee's health and residence.
- (2) The conservator was unable to locate the relative after making reasonable efforts to discover and locate the relative.
- (3) A protective order was issued against the relative to protect the conservatee.
- (4) Notice is not in the best interest of the conservatee.
Section 9. The court in which the petition is filed has continuing jurisdiction to revoke or modify an order made pursuant to this act upon a petition filed, noticed, and heard in the same manner as the original petition was filed.
Section 10. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.
Source: http://alisondb.legislature.state.al.us/ALISON/SearchableInstruments/2016RS/PrintFiles/HB99-int.pdf
LOUISIANA
ACT No. 110, HOUSE BILL No. 350 by Representative Hilferty
To amend and reenact Civil Code Article 2995 and Code of Civil Procedure Article 4568 and to enact Civil Code Article 2997(7) and Code of Civil Procedure Articles 3601(E), 4565(B)(7), 4566(J), and 4570 and R.S. 9:3851(E), relative to persons; to provide with respect to interdicted persons; to provide relative to persons subject to mandate; to provide for duties and restrictions of curators, undercurators, and mandataries; to provide with respect to injunctions; to provide for an effective date; and to provide for related matters.
Be it enacted by the Legislature of Louisiana:
Section 1. Civil Code Article 2995 is hereby amended and reenacted and Civil Code Article 2997(7) is hereby enacted to read as follows:
- Art. 2995. Incidental, necessary, or professional acts.
The mandatary may perform all acts that are incidental to or necessary for the 14 performance of the mandate.
The authority granted to a mandatary to perform an act that is an ordinary part of his profession or calling, or an act that follows from the nature of his profession or calling, need not be specified.
A mandatary shall not prevent or limit reasonable communication, visitation, or interaction between a principal who is over the age of eighteen years and another person without prior court approval, to be granted only upon a showing of good cause by the mandatary, unless express authority has been provided pursuant to Civil Code Article 2997(7).
- Art. 2997. Express authority required
Authority also must be given expressly to:
- (1) Make an inter vivos donation, either outright or to a new or existing trust or other custodial arrangement, and, when also expresslyso provided, to impose such conditions on the donation, including, without limitation, the power to revoke, that are not contrary to the other express terms of the mandate.
- (2) Accept or renounce a succession.
- (3) Contract a loan, acknowledge or make remission of a debt, or become a surety.
- (4) Draw or endorse promissory notes and negotiable instruments.
- (5) Enter into a compromise or refer a matter to arbitration.
- (6) Make health care decisions, such as surgery, medical expenses, nursing home residency, and medication.
- (7) Prevent or limit reasonable communication, visitation, or interaction between the principal and a relative by blood, adoption, or affinity within the third degree, or another individual who has a relationship based on or productive of strong affection.
Section 2. Code of Civil Procedure Article 4568 is hereby amended and reenacted and Code of Civil Procedure Articles 3601(E), 4565(B)(7), 4566(J), and 4570 are hereby enacted to read as follows:
- Art. 3601. Injunction, grounds for issuance; preliminary injunction; temporary restraining order
E. The irreparable injury, loss, or damage enumerated in Paragraph A of this Article may result from the isolation of an individual over the age of eighteen years by any other individual, curator, or mandatary, including but not limited to violations of Civil Code Article 2995 or Code of Civil Procedure Article 4566(J).
- Art. 4565. Undercurators
(7) Move to appoint a successor for a curator who violates any of the provisions of Code of Civil Procedure Article 4566.
- Art. 4566. Management of affairs of the interdict
J. A curator shall allow communication, visitation, and interaction between an interdict who is over the age of eighteen years and a relative of the interdict by blood, adoption, or affinity within the third degree, or another individual who has a relationship with the interdict based on or productive of strong affection if it would serve the best interest of the interdict.
- Art. 4568. Removal of a curator or undercurator
On motion of any interested person, or on its own motion, the court may remove a curator or undercurator from office for good cause. Good cause may include but not be limited to a violation of Code of Civil Procedure Article 4566(J).
Unless otherwise ordered by the court, removal of the curator or undercurator by the court is effective upon qualification of the appointed successor.
- Art. 4570. Cause of action for visitation with the interdict
- A. Any relative of an interdict by blood, adoption, or affinity within the third degree, or an individual who has a relationship with the interdict based on or productive of strong affection may file a rule to show cause seeking visitation, communication, or interaction with an interdict who is over the age of eighteen 26 years.
- B. Any person filing a cause of action pursuant to Paragraph A of this Article may request an expedited hearing on the cause of action, and upon showing of good cause, shall be entitled to an expedited hearing.
- C. Good cause shall include but is not limited to a showing that the interdict suffers from an illness or condition because of which he is not likely to survive beyond six months.
Section 3. R.S. 9:3851(E) is hereby enacted to read as follows:
§3851. Who may file; petition contents; service; venue
E. On motion of any interested person or on its own motion, the court may review the acts of a mandatary and for good cause, grant any relief provided in R.S. 9:3854 or Code of Civil Procedure Article 3605. Good cause shall include but not be limited to a violation of Civil Code Article 2995.
Section 4. This Act shall become effective upon signature by the governor or, if not signed by the governor, upon expiration of the time for bills to become law without signature by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If vetoed by the governor and subsequently approved by the legislature, this Act shall become effective on the day following such approval.
Source: https://www.legis.la.gov/legis/ViewDocument.aspx?d=1005196
ILLINOIS
Bill Title: Amends the Probate Act of 1975. Provides that upon petition by an adult child, the court may order the guardian to permit visitation between the ward and the adult child if the court finds that the visitation is in the ward's best interests. Provides that the court shall order the guardian to keep the adult children of the ward informed of hospitalizations of the ward, the death of the ward, and burial arrangements for the ward unless the court finds on its own motion or upon petition by the guardian that limiting such disclosure is in the best interests of the ward. Provides that if the issue of whether disclosure is in the best interests of the ward, the adult child has the right to a hearing upon the issue of whether to limit disclosure.
AN ACT concerning civil law.
Be it enacted by the People of the State of Illinois, represented in the General Assembly:
Section 5. The Probate Act of 1975 is amended by changing Section 11a-17 as follows:
(755 ILCS 5/11a-17) (from Ch. 110 1/2, par. 11a-17)
Sec. 11a-17. Duties of personal guardian.
- (a) To the extent ordered by the court and under the
direction of the court, the guardian of the person shall have
custody of the ward and the ward's minor and adult dependent
children and shall procure for them and shall make provision
for their support, care, comfort, health, education and
maintenance, and professional services as are appropriate, but
the ward's spouse may not be deprived of the custody and
education of the ward's minor and adult dependent children,
without the consent of the spouse, unless the court finds that
the spouse is not a fit and competent person to have that
custody and education. The guardian shall assist the ward in
the development of maximum self-reliance and independence. The
guardian of the person may petition the court for an order
directing the guardian of the estate to pay an amount
periodically for the provision of the services specified by the
court order. If the ward's estate is insufficient to provide
for education and the guardian of the ward's person fails to
provide education, the court may award the custody of the ward
to some other person for the purpose of providing education. If
a person makes a settlement upon or provision for the support
or education of a ward, the court may make an order for the
visitation of the ward by the person making the settlement or
provision as the court deems proper. A guardian of the person
may not admit a ward to a mental health facility except at the
ward's request as provided in Article IV of the Mental Health
and Developmental Disabilities Code and unless the ward has the
capacity to consent to such admission as provided in Article IV
of the Mental Health and Developmental Disabilities Code.
(a-5) If the ward filed a petition for dissolution of
marriage under the Illinois Marriage and Dissolution of
Marriage Act before the ward was adjudicated a person with a
disability under this Article, the guardian of the ward's
person and estate may maintain that action for dissolution of
marriage on behalf of the ward. Upon petition by the guardian
of the ward's person or estate, the court may authorize and
direct a guardian of the ward's person or estate to file a
petition for dissolution of marriage or to file a petition for
legal separation or declaration of invalidity of marriage under
the Illinois Marriage and Dissolution of Marriage Act on behalf
of the ward if the court finds by clear and convincing evidence
that the relief sought is in the ward's best interests. In
making its determination, the court shall consider the
standards set forth in subsection (e) of this Section.
(a-10) Upon petition by the guardian of the ward's person
or estate, the court may authorize and direct a guardian of the
ward's person or estate to consent, on behalf of the ward, to
the ward's marriage pursuant to Part II of the Illinois
Marriage and Dissolution of Marriage Act if the court finds by
clear and convincing evidence that the marriage is in the
ward's best interests. In making its determination, the court
shall consider the standards set forth in subsection (e) of
this Section. Upon presentation of a court order authorizing
and directing a guardian of the ward's person and estate to
consent to the ward's marriage, the county clerk shall accept
the guardian's application, appearance, and signature on
behalf of the ward for purposes of issuing a license to marry
under Section 203 of the Illinois Marriage and Dissolution of
Marriage Act.
- (b) If the court directs, the guardian of the person shall
file with the court at intervals indicated by the court, a
report that shall state briefly: (1) the current mental,
physical, and social condition of the ward and the ward's minor
and adult dependent children; (2) their present living
arrangement, and a description and the address of every
residence where they lived during the reporting period and the
length of stay at each place; (3) a summary of the medical,
educational, vocational, and other professional services given
to them; (4) a resume of the guardian's visits with and
activities on behalf of the ward and the ward's minor and adult
dependent children; (5) a recommendation as to the need for
continued guardianship; (6) any other information requested by
the court or useful in the opinion of the guardian. The Office
of the State Guardian shall assist the guardian in filing the
report when requested by the guardian. The court may take such
action as it deems appropriate pursuant to the report.
- (c) Absent court order pursuant to the Illinois Power of
Attorney Act directing a guardian to exercise powers of the
principal under an agency that survives disability, the
guardian has no power, duty, or liability with respect to any
personal or health care matters covered by the agency. This
subsection (c) applies to all agencies, whenever and wherever
executed.
- (d) A guardian acting as a surrogate decision maker under
the Health Care Surrogate Act shall have all the rights of a
surrogate under that Act without court order including the
right to make medical treatment decisions such as decisions to
forgo or withdraw life-sustaining treatment. Any decisions by
the guardian to forgo or withdraw life-sustaining treatment
that are not authorized under the Health Care Surrogate Act
shall require a court order. Nothing in this Section shall
prevent an agent acting under a power of attorney for health
care from exercising his or her authority under the Illinois
Power of Attorney Act without further court order, unless a
court has acted under Section 2-10 of the Illinois Power of
Attorney Act. If a guardian is also a health care agent for the
ward under a valid power of attorney for health care, the
guardian acting as agent may execute his or her authority under
that act without further court order.
- (e) Decisions made by a guardian on behalf of a ward shall
be made in accordance with the following standards for decision
making. Decisions made by a guardian on behalf of a ward may be
made by conforming as closely as possible to what the ward, if
competent, would have done or intended under the circumstances,
taking into account evidence that includes, but is not limited
to, the ward's personal, philosophical, religious and moral
beliefs, and ethical values relative to the decision to be made
by the guardian. Where possible, the guardian shall determine
how the ward would have made a decision based on the ward's
previously expressed preferences, and make decisions in
accordance with the preferences of the ward. If the ward's
wishes are unknown and remain unknown after reasonable efforts
to discern them, the decision shall be made on the basis of the
ward's best interests as determined by the guardian. In
determining the ward's best interests, the guardian shall weigh
the reason for and nature of the proposed action, the benefit
or necessity of the action, the possible risks and other
consequences of the proposed action, and any available
alternatives and their risks, consequences and benefits, and
shall take into account any other information, including the
views of family and friends, that the guardian believes the
ward would have considered if able to act for herself or
himself.
- (f) Upon petition by any interested person (including the
standby or short-term guardian), with such notice to interested
persons as the court directs and a finding by the court that it
is in the best interest of the person with a disability, the
court may terminate or limit the authority of a standby or
short-term guardian or may enter such other orders as the court
deems necessary to provide for the best interest of the person
with a disability. The petition for termination or limitation
of the authority of a standby or short-term guardian may, but
need not, be combined with a petition to have another guardian
appointed for the person with a disability.
- (g)(1) Unless there is a court order to the contrary, the
guardian, consistent with the standards set forth in subsection
(e) of this Section, shall use reasonable efforts to notify the
ward's known adult children, who have requested notification
and provided contact information, of the ward's admission to a
hospital or hospice program, the ward's death, and the
arrangements for the disposition of the ward's remains.
(2) If a guardian unreasonably prevents an adult child of
the ward from visiting the ward, the court, upon a verified
petition by an adult child, may order the guardian to permit
visitation between the ward and the adult child if the court
finds that the visitation is in the ward's best interests. In
making its determination, the court shall consider the
standards set forth in subsection (e) of this Section. This
subsection (g) does not apply to duly appointed public
guardians or the Office of State Guardian.
(Source: P.A. 98-1107, eff. 8-26-14; 99-143, eff. 7-27-15.)
Source: https://legiscan.com/IL/text/HB5924/id/1425164
ARKANSAS
House Bill 1678
State of Arkansas, 91st General Assembly, Regular Session, 2017 by Representative Beck
For An Act To Be Entitled
AN ACT CONCERNING VISITATION WITH AN ENDANGERED ADULT, AN IMPAIRED ADULT, OR A WARD; AND FOR OTHER PURPOSES.
Subtitle: CONCERNING VISITATION WITH AN ENDANGERED ADULT, AN IMPAIRED ADULT, OR A WARD.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
SECTION 1. Arkansas Code § 9-20-103, concerning the definition of terms used under the Adult Maltreatment Custody Act, is amended to add additional subdivisions to read as follows:
- (25) "Relative" means the spouse, child, grandchild, parent, or sibling of an endangered adult or an impaired adult.
SECTION 2. Arkansas Code Title 9, Chapter 20, is amended to add an additional section to read as follows:
- 9-20-123. Rights of relatives.
(a)(1) If a relative has reason to believe coupled with facts to substantiate his or her belief that the Department of Human Services is unreasonably interfering with or denying visitation between the relative and an endangered adult or an impaired adult as defined in § 9-20-103(6) and (10)respectively, the relative may file a petition for reasonable visitation with the endangered adult or the impaired adult in a court with jurisdiction over proceedings under this chapter that concern the endangered adult or the impaired adult.
-
(2) A petition for reasonable visitation filed under this section shall be verified and state:
- (A) Whether the petitioner is a relative as defined under § 9-20-103;
- (B) Whether the department is unreasonably interfering with or denying visitation between the petitioner and the endangered adult or the impaired adult;
- (C) Whether the department is the custodian of the endangered adult or the impaired adult; and
- (D) The facts supporting the petitioner’s allegation that the department as custodian of the endangered or the impaired adult is unreasonably interfering with or denying visitation between the petitioner and the endangered adult or the impaired adult.
(3)(A) A petition for reasonable visitation filed under this section shall be served on all parties to a custody proceeding that is initiated under this chapter and concerns the endangered adult or the impaired adult who is the subject of the petition for reasonable visitation.
(B) A relative who files a petition for reasonable visitation under this section is not a party to a custody proceeding described under subdivision (a)(3)(A) of this section.
(b)(1)(A) If an endangered adult or an impaired adult objects to visitation with the petitioner, the petitioner shall prove by a preponderance of the evidence that the endangered adult or the impaired adult was unduly influenced by the department or another person.
(B) The court shall not find undue influence on the part of the department or another person if the attorney for the endangered adult or the impaired adult confirms that the endangered adult or the impaired adult objects to visitation with the petitioner.
(2) If an endangered adult or an impaired adult consents to visitation with the petitioner, does not object to visitation with the petitioner, or is unable to express his or her consent or objection to visitation with the petitioner, the department shall prove one (1) or more of the following conditions by a preponderance of the evidence in order to overcome the presumption that visitation between the petitioner and the endangered adult or the impaired adult is in the best interest of the endangered adult or the impaired adult:
(A) The petitioner physically abused, exploited,neglected, sexually abused, or otherwise maltreated the endangered adult, the impaired adult, or another adult; or
(B) Visitation between the petitioner and the endangered adult or the impaired adult would be harmful to the mental health or physical well-being of the endangered adult or the impaired adult.
(c)(1) An order issued by the court granting or denying a petition for reasonable visitation filed under this section shall include statements of fact and law supporting the court’s order.
(2) If the court grants the petition for reasonable visitation, then:
- (A) The court may impose reasonable restrictions on visitation between the petitioner and the endangered adult or the impaired adult;
- (B) The petitioner shall be responsible for paying costs associated with the visitation, including but not limited to transportation and supervision costs;
- (C) Visitation shall not occur in a manner that negatively impacts the medical or treatment needs of the endangered adult or the impaired adult;
- (D) Visitation shall occur at the placement location of the endangered adult or the impaired adult;
- (E) Visitation shall be subject to the rules of the facility in which the endangered adult or the impaired adult is placed; and
- (F) The court may impose on the department the cost of filing the petition for reasonable visitation and reasonable attorney's fees incurred by the petitioner as a result of the department opposing the petition if the department:
- (i) Is the custodian of the endangered adult or the impaired adult;
- (ii) Unreasonably interfered with or denied visitation between the petitioner and the endangered adult or the impaired adult; and
- (iii) Opposed visitation between the petitioner and the endangered adult or the impaired adult in bad faith.
(3) If the court denies the petition for reasonable visitation, the:
- (A) Petitioner may file another petition for reasonable visitation no earlier than one (1) year after the date on which the court enters the order denying visitation if there is a material change in circumstances; and
- (B) Court may impose on the petitioner the costs of opposing the petition, including without limitation the costs for subpoenas, witness fees, and reasonable attorney's fees incurred by the department.
(d) The court shall not impose costs on:
- (1) A person or entity that in good faith interfered with or denied visitation at the direction of the department; and
- (2) The endangered adult or the impaired adult.
SECTION 3. Arkansas Code § 28-65-106 is amended to read as follows: 28-65-106. Rights of incapacitated persons.
- (a)
An incapacitated person for whom a guardian has been appointed A ward is not presumed to be incompetent and retains all legal and civil rights except those which have been expressly limited by court order or have been specifically granted by order to the guardian by the court.
- (b)(1) A ward retains the right to communicate, visit, or interact with any person of the ward's choice.
- (2) If a ward is unable to give express consent to communication, visitation, or interaction with a person due to a physical or mental condition, then the consent of the ward may be presumed by a guardian or a court based on the ward's prior relationship with the person seeking communication, visitation, or interaction with the ward.
SECTION 4. Arkansas Code § 28-65-101, concerning definitions, is amended to add additional subdivisions to read as follows:
(11) "Relative" means the spouse, child, grandchild, parent, grandparent, or sibling of a ward.
SECTION 5. Arkansas Code Title 28, Chapter 65, Subchapter 1, is amended to add an additional section to read as follows: 28-65-110. Rights of relatives.
- (a)(1) If a relative has reason to believe coupled with facts to substantiate his or her belief that the guardian of a ward or another person is unreasonably interfering with or denying visitation between the relative and the ward, the relative may file a petition for reasonable visitation with the ward in a court with jurisdiction over proceedings under this chapter that concern the ward.
- (2) A petition for reasonable visitation filed under this section shall be verified and shall state:
- (A) Whether the petitioner is a relative as defined under § 28-65-101;
- (B) Whether the guardian or other person is unreasonably interfering with or denying visitation between the petitioner and the ward;
- (C) The identity of the guardian or other person alleged to be unreasonably interfering with or denying visitation between the petitioner and the ward; and
- (D) The facts supporting the petitioner’s allegation that the guardian or other person is unreasonably interfering with or denying visitation between the petitioner and the ward.
- (3)(A) A petition for reasonable visitation filed under this section shall be served on all parties to a guardianship proceeding that is initiated under this chapter and concerns the ward who is the subject of the petition for reasonable visitation.
- (B) A relative who files a petition for reasonable visitation under this section is not a party to a guardianship proceeding described under subdivision (a)(3)(A) of this section.
- (b)(1) If a ward objects to visitation with the petitioner, the petitioner shall prove by a preponderance of the evidence that the ward was unduly influenced by the guardian or another person.
- (2) If the ward consents to visitation with the petitioner, does not object to visitation with the petitioner, or is unable to express his or her consent or objection to visitation with the petitioner, the guardian or other person shall prove one (1) or more of the following conditions by a preponderance of the evidence in order to overcome the presumption that visitation between the petitioner and the ward is in the best interest of the ward:
- (A) The petitioner physically abused, exploited, neglected, sexually abused, or otherwise maltreated the ward or another adult; or
- (B) Visitation between the petitioner and the ward would be harmful to the mental health or physical well-being of the ward.
- (c)(1) An order issued by the court granting or denying a petition for reasonable visitation filed under this section shall include statements of fact and law supporting the court’s order.
- (2) If the court grants the petition for reasonable visitation, then:
- (A) The court may impose reasonable restrictions on visitation between the petitioner and the ward;
- (B) The petitioner shall be responsible for paying costs associated with the visitation, including but not limited to transportation and supervision costs;
- (C) Visitation shall not occur in a manner that negatively impacts the ward’s medical or treatment needs;
- (D) If the ward is placed in a facility, visitation shall occur at the facility;
- (E) Visitation shall be subject to the rules of the facility in which the ward is placed; and
- (F) The court may impose on the guardian or other person alleged to have unreasonably interfered with or denied visitation between the petitioner and the ward the cost of filing a petition for reasonable visitation under this section and reasonable attorney's fees incurred by the petitioner as a result of the guardian or other person opposing the petition if the guardian or other person:
- (i) Unreasonably interfered with or denied visitation between the petitioner and the ward; and
- (ii) Opposed visitation between the petitioner and the ward in bad faith.
- (3) If the court denies the petition for reasonable visitation, the:
- (A) Petitioner may file another petition for reasonable visitation no earlier than one (1) year after the date on which the court enters the order denying visitation if there is a material change in circumstances; and
- (B) Court may impose on the petitioner the costs of opposing the petition, including without limitation the costs for subpoenas, witness fees, and reasonable attorney’s fees incurred by the guardian or other person alleged to have unreasonably interfered with or denied visitation between the petitioner and the ward.
- (d) The court shall not impose costs on:
- (1) A person or entity that in good faith interfered with or denied visitation at the direction of the guardian or other person; and
- (2) The ward.
Source :
http://www.arkleg.state.ar.us/assembly/2017/2017R/Bills/HB1678.pdf
NEBRASKA
LEGISLATIVE BILL 122
Approved by the Governor April 27, 2017
Introduced by Pansing Brooks, 28; Baker, 30.
A BILL FOR AN ACT relating to families; to define terms; to provide for family member visitation petitions as prescribed; to provide for a hearing; and to provide for costs and fees as prescribed. Be it enacted by the people of the State of Nebraska,
Section 1. For purposes of sections 1 to 4 of this act:
- (1) Adult child means an individual who is at least nineteen years of age and who is related to a resident biologically, through adoption, through the marriage or former marriage of the resident to the biological parent of the adult child, or by a judgment of parentage entered by a court of competent jurisdiction;
- (2) Family member means the spouse, adult child, adult grandchild, parent, grandparent, sibling, aunt, uncle, niece, nephew, cousin, or domestic partner of a resident;
- (3) Resident means an adult resident of:
- (a) A health care facility as defined in section 71-413; or
- (b) Any home or other residential dwelling in which the resident is receiving care and services from any person; and
- (4) Visitation means an in-person meeting or any telephonic, written, or electronic communication.
Sec.2
- (1) It is the intent of the Legislature that, in order to allow family members to remain connected, a caregiver may not arbitrarily deny visitation to a family member of a resident, whether or not the caregiver is related to such family member, unless such action is authorized by a nursing home administrator pursuant to section 71-6021.
- (2) If a family member is being denied visitation with a resident, the family member may petition the county court to compel visitation with the resident. If the resident has been appointed a guardian under the jurisdiction of a county court in Nebraska, the petition shall be filed in the county court having such jurisdiction. If there is no such guardianship, the petition shall be filed in the county court for the county in which the resident resides. The court may not issue an order compelling visitation if the court finds any of the following:
- (a) The resident, while having the capacity to evaluate and communicate decisions regarding visitation, expresses a desire to not have visitation with the petitioner; or
- (b) Visitation between the petitioner and the resident is not in the best interests of the resident.
Sec. 3. If the petition filed pursuant to section 2 of this act states that the resident's health is in significant decline or that the resident's death may be imminent, the court shall conduct an emergency hearing on the petition as soon as practicable and in no case later than ten days after the date the petition is filed with the court.
Sec. 4. Upon a motion by a party or upon the court's own motion, if the court finds during a hearing pursuant to section 3 of this act that a person is knowingly isolating the resident from visitation by a family member, the court may order such person to pay court costs and reasonable attorney’s fees of the petitioner and may order other appropriate remedies. No costs, fees, or other sanctions may be paid from the resident's finances or estate.
Source : https://nebraskalegislature.gov/FloorDocs/105/PDF/Slip/LB122.pdf
The work of the Kasem Cares Coalition addresses the experiences of an increasing number of families whose family members need protection from abuse, regardless of their financial status. Increasingly, adult family members around the country need to protect ailing relatives whose lives are being controlled by someone who restricts access to and creates inhumane conditions for a vulnerable adult.
Elder abuse is a silent epidemic affecting thousands of people across the country and ironically, elements of the current laws support the abusers. The Kasem Coalition is waging a state-by-state lobbying campaign to support the “Visitation Bill” or bills with similar components.
The “Visitation Bill” provides an open path for family members to ask the court to rule on visitation without incurring the enormous expense and time that comes with a challenge to guardianship or conservatorship. We are very proud of our success in Iowa, Texas and California; with California passing the “Visitation Bill” in 2016! Other states are on their way to follow suit.
The Kasem Coalition is devoted to help change the way our society honors and cares for our parents and seniors. Our organization invites you to join an expanding group of passionate professionals and community-minded families who want to preserve the visitation rights of adult children and loving family members.
