Families sure can be complicated. Trust me when I say we have seen some doozies. One difficult situation we see from time to time is when the court has named a guardian for an elderly person, and other family members run into conflicts with the guardian. Technically, the guardian is responsible for making all decisions regarding the ward, including who they can see and talk to. However, the ward also has rights. Whether the guardian can refuse a visitor’s request depends on several factors.
Why Was a Guardian Named?
The first thing to understand is why a guardian was named in the first place. When an elderly person is no longer able to care for themselves because of dementia or Alzheimer’s disease—and they do not have a Power of Attorney—a family member or friend can petition the court to become the guardian. The court will require that an exam be conducted by a doctor to determine the person’s mental fitness. If the court agrees that the person needs a guardian, a judge will have to approve the person requesting the role. If more than one person has petitioned the court, the judge will usually choose the spouse over adult children or others. A typical conflict in this situation is when a second or subsequent spouse is named as a guardian, and they do not get along with the ward’s adult children from a previous marriage.
What the Guardian Is Required By Law to Do
It is the guardian’s duty to manage the ward’s assets and to provide food, shelter, and medical care, to the extent that the ward’s assets allow. The guardian is required to file an annual accounting of income and expenditures and to ask permission of the court for certain actions. The guardian is also responsible for protecting the ward from abuse, which could include barring communication and visitation from people who the guardian believes will cause harm to the ward. There have been several recent high-profile examples of guardians preventing family members from seeing their loved one by making this claim, including Casey Kasum and Peter Falk. Because of the potential for a guardian to abuse their power and isolate their ward from loved ones, courts will intervene when there are problems.
The Law in Texas
Several states, including Texas, have passed legislation to protect the rights of individuals under guardianship. In Texas, this bill of rights states that a person with a guardian retains all rights under the law and specifically protects the rights of the ward to “unimpeded, private, and uncensored” visits and communication. If the guardian believes that certain interactions would cause the ward harm, they may restrict visitation, but only to the extent necessary to prevent substantial harm. In other words, they may be legally obligated to allow supervised visitation. The person subject to guardianship may request a court hearing to remove restrictions.
So, back to the original question. Say, for example, your elderly mother’s husband is her guardian and doesn’t want you to see her or talk to her. He could claim that he believes the interaction would cause your mother harm and prohibit you from seeing her. However, if your mother is still capable of stating her wishes, she could petition the court to be allowed to see you. If she is not mentally capable of doing this, you could petition the court to grant permission or even to remove your step-father as guardian.
How the Elder Law Attorneys at Ross & Shoalmire, PLLC, Can Help
If you believe that someone you love is not being properly cared for by their guardian, contact our Elder Law Attorneys and set up a consultation. We will be able to assess your situation and determine if it is a good idea to petition the court for a change. When you work with us, you can rest assured that we will help you throughout the legal process. Start a live chat or fill out our contact form to get in touch with our team today.