- Many states are passing laws to allow visitation by close family members regardless of whether a Power of Attorney or Guardian approves of the visit or not
- Family members now have legal remedies to compel their visitation of parents, siblings and close relatives
I read a recent article about a son who has been restricted from visits with his mother. Eleven states, including New Jersey, now provide a legal remedy for relatives who have been prevented from visiting their ailing family members. Here’s more about this story.
The History and Background to a Recent Case Where a Caregiver Denied Visitation by Son with His Mother
Bill was always tight with his mother, Elaine, a part-time nursery school teacher who was “a very kind, nurturing mother”. Bill’s father and mother were highly devoted to their only biological child together. All of which makes the story of their relationship during the last years of moms life so surprising.
Bill lays the blame on his parents’ live-in caregiver. With the father’s cooperation, (he was 91 and in failing health) she barred Bill and the rest of her family, including mom’s only surviving sister, from seeing or speaking to her for the last three years of her life, until her death this year.
Bill didn’t even know that for the last three months of her life, his mother, (who had multiple sclerosis and dementia) was in hospice care, first in her Cherry Hill, New Jersey, home and then in a nearby facility.
Nobody bothered to tell him or other relatives that his mother had died until a week later. By then, she had been cremated, against the wishes she had expressed long before her health and her mind began failing.
The events over the past years have devastated Bill.
“Especially in the later years, Mom and Dad would travel down to my home in Virginia every 6 to 8 weeks from New Jersey, so that Mom and I could spend time together, he said “We’d both take walks together and share stories. Mom really loved those visits, so much so that I even got a two-bedroom apartment so that my parents had a place to stay when they visited.”
Experiences like Bill’s have prompted at least 11 states to enact laws that provide a legal remedy, besides seeking guardianship, which can be costly and complicated, for relatives who have been prevented from seeing infirm or disabled family members.
Details on Laws Which Allow For Close Family Visitation
Under the laws, relatives can seek a court order permitting visitation and communication. The order must be granted, unless the ailing relative is mentally competent and objects to the contact.
Remember the late disc jockey Casey Kasem. Through public appearances and her foundation, “Kasem Cares”, Kerri Kasem (her daughter) has spearheaded largely successful efforts to enact visitation laws throughout the country. Her father, host of radio’s “American Top 40 countdown” died in 2014 at 82, kicking off a round of wrongful death claims and counterclaims between his widow and his children. Before his death, there had been highly publicized legal squabbles about his guardianship.
Joining Kasem was Travis Campbell, son of the country music legend Glen Campbell, who died at age 81 last summer from complications from Alzheimer’s disease, and Kelly Rooney, the eldest of Mickey Rooney’s eight children. Rooney, was a movie star whose career lasted nine decades, and died at age 93 in 2014. “He was in a guardianship for the last 18 months, and we never saw him again,” Kelly Rooney said in an interview. At age 90, Mickey Rooney appeared before a U.S. Senate committee and claimed he had been a victim of physical, emotional and financial abuse at the hands of his eighth and last wife and her adult children. His conservator, another term for “guardian,” continued to keep her father from his biological children until his death, Kelly Rooney said.
Travis Campbell also was denied visits with his father. He only found out through media reports that his father, who lived in California, had been transferred to an Alzheimer’s facility in Tennessee. Once he found out, he said, his stepmother still severely curtailed his ability to spend time with his father, whose most famous songs included “By the Time I Get to Phoenix” and “Wichita Lineman.”
“If there had been a law in effect,” Campbell said, “I would have had the most precious gift of all — time with my father.”
Some Elder Care Organizations Are Against These Visitation Laws
A prominent member of an elder law organization, who practices guardianship law, testified against these laws.
“I’m not against the idea, but it doesn’t do what supporters say it does,” the lawyer claims. The legislation still requires expensive judicial process involving lawyers.
“I want people to get visitation without a lengthy process and without lawyers,” she said. “This bill doesn’t do that.”
Isolation from Family Members Leads to Undue Influence and Elder Abuse
One National Spokeswoman, the immediate past president of the National Academy of Elder Law Attorneys (NAELA), said the underlying concern in such cases is that somebody is exerting “undue influence on the declining senior.”
“One of the classic hallmarks of undue influence is to isolate the person in question by limiting both in-person and phone contact.” “They convince the person that all these outside people, even family members, are a threat.”
The National Association of Elder Law Attorney’s (NAELA) is sympathetic to the intentions behind the new visitation laws, but prefer their organization’s model guardianship legislation, which would prevent guardians from restricting access to family members the ward wishes to see or communicate with. Critics point out, however, that this approach doesn’t address the many situations where there is no appointed guardian, or cases in which the caregiver is manipulating the ward into thinking poorly of family members. No state has yet enacted NAELA’s model legislation.
To discuss your NJ guardianship matter please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq., of Hanlon Niemann & Wright, a Freehold Township, Monmouth County NJ Elder Law Attorney