Denying Access to Vulnerable Adults

The past several months have provided a series of tragic stories of family members being denied access to a loved one who was shuttered in a nursing home or hospital due to the pandemic’s quarantine. The denial of access to a loved one who is alone and isolated causes everyone to suffer. Yet the denial of access during a pandemic is not the only kind of ‘denied access’ that is gaining attention these days.

Over the past couple of years, adult children of incapacitated celebrities like Casey Kasem and Peter Falk have had to petition a court to gain the right to visit their parent over a legal guardian’s objections. These high-profile visitation lawsuits have brought national attention to a number of instances where a family’s access to an aged, infirm, or ill individual was denied.

Closer to home, one of the preliminary conclusions reached by the Michigan’s Elder Abuse Task Force is the potential abuse that arises when a court appointed guardian denies access to a ward who is elderly, disabled, or a patient. Apparently, an increasing number of court appointed guardians or patient advocates who act under a durable power of attorney for medical decision-making are prone to exercise (or abuse) their authority to deny access to the ward or patient by family members or friends. These unilateral decisions to restrict access, or to isolate a ward or elder, have resulted in some highly publicized Michigan court cases.

Examples where access to an individual might be denied, which could lead to litigation, include:

Siblings do not get along and frequently engage in verbal altercations, often during their visits to their parent who is in a nursing home. The parent’s legal guardian attempts to establish a visitation schedule to make sure that the feuding siblings did not visit their parent in the nursing home at the same time. The children object claiming that they are denied visitation with their parent.

A parent is hospitalized in the intensive care unit. The hospital follows policy that limits how many persons may visit the patient in the ICU at one time, or the number of visits to the patient in a day. The parent’s patient advocate implements the hospital’s visitation policy restricting when the hospital visits can take place, and who can visit the patient. Family members who want to visit the patient at the same time become angered by the patient advocate’s ‘controlling’ decision.

An elderly parent lives with a child. That caregiving child does not get along with a sibling. The caregiving child refuses to allow their sibling in the caregiver’s home to visit their parent. The sibling threatens to petition the probate judge to force the caregiving child to permit entry of the ‘barred sibling’ into her home.

Often the reason given by the decision-maker to deny access to the ward, patient or aged individual is that the presence of others will cause the ward or patient to become agitated or emotionally upset. Yet numerous studies indicate that the well-being of an individual can be improved through access to visitation, communication and interaction with others. Those same studies have concluded that isolation can lead to increased risks of depression, cognitive decline, dementia, and even premature death.

The Michigan Task Force’s concern is that denying access to a ward or patient is a form of isolation in which financial and physical abuse can more readily occur. In addition, constitutional rights with regard to personal liberty and the right to communicate are implicated if a ward or patient is denied access to their family and friends. There is also the practical concern of removing or limiting an independent observation of the ward or patient’s condition. The ward or patient’s well-being, both physically and medically, may be compromised, not improved, if there is restricted contact with their family and friends.

One small step to address this concern with regard to the denial of access was taken earlier in 2020. A Michigan statute was adopted to address the denial of access to a ward. Under the new statute a probate judge can appoint a limited guardian to supervise access to a ward when the guardian who has the care and custody of the ward denies another person access to the ward. [MCL 700.5306.] The limited guardian will be given authority to supervise access to the ward. Apparently the goal of this statute is to relieve the probate judge of having to act as a referee each time a denial occurs which often results from family dysfunction.

Another pending bill proposed by the Task Force addresses the ability of a guardian to restrict an individual’s “ability to communicate, visit, or interact with” a ward. Under current Michigan law, a guardian has unfettered discretion to impose visitation and contact limitations on the ward’s family members or friends. The proposed bill would require the guardian to provide written notice to an individual why their “interaction’ with the ward is being restricted, so long as the guardian gives written notice on a court-approved form within seven days of the imposed access restriction. The failure by the guardian to give such a notice would constitute good cause for the probate judge to remove the guardian. The challenge for a guardian will be to weigh the important benefits of visitation with the ward against the need to restrict contact due to family dysfunction, undue influence, neglect, abuse, or financial exploitation. It will be interesting to see if a guardian is willing to put in writing their belief that the specified individual is denied access due to their abuse of the ward.

This proposed bill also contemplates giving an individual the authority, under either a valid durable power of attorney (financial decisions or health care decisions when the patient is no longer able to participate in their own health care decision-making), “or in any other writing or communication,” that the individual does not wish to communicate, visit, or interact with another identified individual.

At the national level, in 2017 a proposed Uniform Guardianship, Conservatorship and Other Protective Arrangements Act was created by the Uniform Law Commission. That proposed uniform statute prioritizes visitation as “important to the well-being of individuals” who are subject to a guardianship. The Act requires that the ward must receive notice of their right to communicate, visit, or interact with others, including in-person visits, phone calls, personal mail, electronic communications and social media. Under the Act, a guardian may restrict visitation only if the guardian has good cause to believe the restriction is necessary because interactions with a specified person poses a risk of significant physical, psychological, or financial harm and the restriction is for no more than 7 business days if the person with whom contact is restricted has a family or pre-existing social relationship with the ward. The Act also provides a right to access information for the ward’s relatives and loved ones. Michigan has not adopted this uniform legislation

While the prohibition of visitation, communication or contact can be included in an individual’s durable powers of attorney without the need for a statute to legitimize that authority, authorizing the denial of access could also prove to be troublesome. If the ‘no contact’ provision is included in a durable power of attorney for health care, one that was signed ten years ago, with the passage of time, the patient and the ‘no-contact’ family member or friend may have made amends and currently enjoy a closer and more trusting relationship than ten years earlier. Individuals seldom update their durable powers of attorney to reflect this kind of a change in circumstance, so adding visitation limitations in the durable power of attorney for health care, which becomes a part of their electronic medical records would be binding over current wishes if the patient is incapacitated. Consequently, more thought needs to be given before including a direction to prohibit visitation in a durable power of attorney, or more direction guidance will need to be given to an agent or patient advocate of the circumstances when the denial of visitation should be invoked.

The denial of access to a vulnerable adult is receiving a lot of media attention these days. The Uniform Act’s appearance suggests that denial of access to wards and patients is more prevalent nationwide than one might have suspected. The Michigan Elder Abuse Task Force plans to propose a variety of bills in the coming year to address the perceived isolation and abuse (physical, mental, and financial) of elders. A starting point will be to place a curb on a guardian’s efforts to act as a ‘gatekeeper’ to a disabled individual. Those limitations may very well extend in other legislation to a patient advocate, or an agent who acts under a durable power of attorney.

If continuing access to family members and friends is a concern you might wish to update your durable powers of attorney and expressly communicate your intent.