In this article, we’ll discuss the visitation rights of disabled adults who have an adult guardianship. We’ll answer the questions, “Can legal guardians stop visitation rights?” and “What are the adult guardianship visitation laws for 2019?” Each state has slightly different procedures for legal guardianship, so be sure to research Illinois law thoroughly.
How does guardianship work in Illinois?
When an adult is no longer able to make safe, reasonable decisions, an Illinois court can appoint an individual, relative or non-relative, to serve as a legal guardian. This legal relationship removes some or all legal decision-making rights of the incapacitated person, deeming him or her legally unable to provide for his or her own physical, emotional, medical and residential needs. Once an adult is given a legal guardian, he or she does have the right to visit and communicate with the important people in his or her life. For more, check out our article: Illinois Guardianship Explained.
Disabled adult’s right to contact with loved ones in Illinois guardianship
An incapacitated adult who has a legal guardian, oftentimes referred to as a “ward,” does have the right to have contact with his or her parents, children, siblings, and others. This right includes but is not limited to personal visits, verbal or written conversations, email, and texting. In some legal guardianship cases, a ward’s family members or friends may disagree with the legal guardian’s decisions regarding the ward’s care. When tensions and disagreements rise, a guardian may try to block visitation by the ward’s friends and family. Illinois law protects these individuals from unfair visitation limitations.
Who may petition for guardianship visitation in Illinois?
Effective January 1, 2019, the Adult Guardianship Visitation Act (HB 04687) “expands who may petition a court for visitation of a ward of the state after the ward’s guardian has denied it to include a spouse, adult grandchild, parent or adult sibling.” Prior to this change, only adult children could petition for visitation.
How do Illinois courts determine whether to allow guardianship visitation?
The Illinois Probate Act allows an adult child, spouse, adult grandchild, parent or adult sibling of a ward to petition the court if he or she believes that his or her parent’s legal guardian is unreasonably preventing visitation. If an Illinois court finds visitation to be in the best interests of the ward, it may order the guardian to allow visitation.
Essentially, Illinois court has to decide if the ward, if competent, would have wanted to engage in visitation with the adult child. If the court is unable to determine a stance, the court will review the following factors to determine the ward’s best interests:
- The reason and nature of the proposed visitation,
- The benefit or necessity of the visitation,
- The possible risks and other consequences of the proposed visitation,
- Available alternatives and their risks, consequences, and benefits, and
- Any other information, including the views of family and friends. For example, if the legal guardian claims the ward’s child only visits his or her parent to ask for money, the Illinois court would evaluate the validity of this statement, possibly through financial auditing or personal interviews with the child’s siblings.
When can a guardian restrict family visitation with the ward?
On the other hand, it is the legal guardian’s job to protect and assist the disabled adult with important aspects of his or her life, including limiting contact with individuals who only mean the ward harm. Guardians do have the ability to restrict other people’s contact with the protected person in some circumstances, including:
- If the protected person expresses to the guardian and at least one other person (who is not affiliated or related to the guardian or protected person) that the protected person does not want to have contact with a particular person;
- If there is a court order authorizing the guardian to restrict contact with the particular person;
- If there is an investigation or court proceeding concerning alleged abuse by the particular person and the guardian believes it is in the protected person’s best interest to restrict contact;
- If the guardian determines that the protected person is being harmed (physically, emotionally, or mentally) by the particular person; the guardian is required to file a petition with the court within 10 days of restricting contact if this basis is used, unless there is already a pending investigation or court proceeding concerning the alleged abuse; or
- If a treatment plan or plan of care finds that contact between the protected person and another particular person would be detrimental to the health and well-being of the protected person; the guardian must file a notice within 10 days of restricting contact if this basis is used.
How can a guardian restrict visitation with the ward?
If you are a legal guardian who feels that restricting visitation or contact with a particular person is necessary to the ward’s health and well-being, you’ll need to file papers with the Illinois court to request approval, depending on any of the above reasons. In these documents, you’ll have to provide details on why you believe contact should be limited, set the matter for a court hearing, and notify all required people.
How can a family member petition for visitation with a disabled adult in an Illinois guardianship?
If you are a friend or family member who feels your visitation rights have been violated or unfairly restricted by a legal guardian, you can petition the court for a visitation order. Generally speaking, most courts require the petition to be filed using local forms, meaning the process may be different from county to county. Make sure you’re filing the correct forms. You’ll also have to set the matter for a hearing and notify all required people.
In conclusion, disabled adults have the right to maintain normal relationships with their friends and family members, so long as it is the right decision for his or her health and well-being. Legal guardians of wards cannot simply eliminate or prevent visitation without potential repercussions from Illinois court. Anyone who is denied visitation by a guardian should seek the advice of counsel to determine whether a petition to allow visitation is necessary.
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