While the court’s ability to do this was already inherently permitted, the new law now expressly authorizes a limited guardian for this purpose alone.
When Casey Kasem became incapacitated from Parkinson’s disease, his wife denied visitation for his daughter Kerri Kasem and her siblings. The family’s story gained nationwide attention.
Kerri and her siblings pursued a court action to gain access to her father. While the court action eventually succeeded, her father’s health had deteriorated to the point that he passed away shortly after a court granted Kerri custody of her father through conservatorship. The childrens’ initial efforts to gain visitation through court proceedings had failed.
As the result of her experience, Kerri advocated for new laws, believing that the California laws did not include adequate protections for family members denied access to an incapacitated loved one. She also found that no other states offered explicit guardianship visitation protection either. In response, she established the Kasem Cares foundation and the Kasem Coalition. One of her primary goals was to advocate for guardianship visitation laws across the country.
Michigan is one of many states that answered the call. While the substance of individual state laws differs, they all provide some degree of protection for guardianship visitation.
Casey Kasem’s children are not the only famous family who faced problems when a celebrity parent became incapacitated. Similar disputes occurred in the families Groucho Marx, Peter Falk, Zsa Zsa Gabor, and B.B. King. But celebrity families aren’t the only ones who face these types of issues. They happen in many non-famous families too, and in many different circumstances.
Children of elder parents who suffer from diminished capacity due to Alzheimer’s, dementia, and other health issues may find themselves blocked from seeing the parent by a second or third spouse, or even by rival siblings. An elder also can be at risk because of an aggressive caregiver or other predator, or even an unethical business manager.
Any family facing this type of issue should talk with an experienced guardianship attorney. Michigan now has a specific law that can be used to ask for a court order allowing visitation. There may be other legal options available as well, depending on the situation.
The new guardianship visitation provision in Michigan law amends MCL 700.5306, the section that governs court appointment of a guardian for an incapacitated person. The law authorizes a judge to appoint a guardian when specific requirements are met. It also establishes parameters for the appointment.
Subsection 6 addresses guardianship visitation when a person is denied visitation with an incapacitated individual. Under the provision, if the court makes specific findings based on clear and convincing evidence, the judge may appoint limited guardian to supervise visits between the incapacitated person and the other person.
First, the court must find that the person who has care and custody of the incapacitated individual denied the other person access to the incapacitated individual. Then, the court must find that either the incapacitated individual wishes to have contact with the other person or contact with the other person is in the incapacitated individual’s best interest.
For a judge to make the findings required by the law, a court hearing is necessary. At the hearing, the person requesting visitation must present evidence that satisfies the stated prerequisites for appointment of a limited guardian. Compiling and presenting that evidence to the court requires assistance from an experienced probate litigation attorney.
If you are denied visitation with an incapacitated loved one, your first step should be to consult with a knowledgeable lawyer. Attempting to secure visitation on your own could jeopardize your ability to seek court resolution of the issues you face.
Guardianship visitation is not the only type of disagreement that arises among family members when a parent or other loved suffers incapacity. Family disputes occur in many different circumstances and involve many different types of legal issues.
In some cases, the disputes arise because an incapacitated elder does not have a durable power of attorney in place, so a court action for appointment of a guardian or conservator is necessary. Other times, as in guardianship visitation situations, they involve actions or decisions by an appointed guardian or caregiver. Another possibility is disputes over decisions made by an appointed conservator regarding the incapacitated person’s finances.
If family members cannot resolve differences by focusing on the well-being and wishes of the incapacitated loved one, the best approach is to consult an attorney with experience in guardianship and conservatorship matters. Regardless of the situation, a lawyer can help you explore the options available for solving the problems.
In another blog post, our BRMM attorneys provide additional information about family disagreements over care of a loved one.
BRMM attorneys assist clients with the full range of legal needs relating to probate litigation, including guardianships and conservatorships, as well as all other matters involving elder law and estate planning. We’ve been providing legal services to clients for more than 40 years. Our compassion, credentials, and commitment set us apart.
Call us at (248) 494-4577 to talk about matters relating to your aging parent or other legal issues. We serve clients in Troy, Oakland County, and surrounding areas, as well as out-of-state clients with estate and probate matters arising in Michigan.