Access Denied: What Happens When a Michigan Guardian Doesn’t Allow Family Members to Visit With Their Incapacitated or Developmentally Disabled Loved One?

For incapacitated individuals (people who, due to illness or age, can no longer care for themselves or manage their affairs), appointed guardians play a critical role in ensuring their well-being and handling their medical care and financial needs. Similarly, developmentally disabled individuals may also require guardians’ assistance and oversight to protect them. And while the overwhelming majority of guardians fulfill their responsibilities honorably and in accordance with their ward’s best interests, some act contrary to those interests and interfere with family members’ efforts to visit their incapacitated or developmentally disabled loved ones.

It can be heartbreaking and frustrating when a guardian denies family members access to their loved ones. An elderly parent with Alzheimer’s disease may pass away without their children present because a sibling, the parent’s spouse, or other appointed guardian has an ax to grind. A developmentally disabled person’s guardian may refuse to allow family visits for fear of being exposed as abusive, neglectful, or engaging in financial or other misconduct.

Whatever the reason for denying visitation, the law in Michigan and several other states now offer remedies for loved ones who are wrongfully excluded from their family member’s life. While a Michigan law passed two years ago provides clarity and robust mechanisms for facilitating visits with incapacitated individuals over their guardian’s objections, the law is less clear regarding visitation with developmentally disabled wards.

Limited Guardians Appointed for Visitation With Incapacitated Persons

Several years ago, the famous disc jockey and radio personality Casey Kasem became incapacitated with Parkinson’s disease. Appointed as Kasem’s guardian, his wife denied Kasem’s children access to their father. This led to a lengthy and excruciating court battle to gain visitation, a fight that ultimately succeeded, but only after Kasem’s health had so deteriorated that he passed away shortly after a court granted his daughter custody of her father through a conservatorship.

In response to Kasem’s ordeal and countless others, Michigan amended its Estates and Protected Individuals Code (EPIC) in 2020 to establish a process through which a probate court may appoint a “limited guardian” in certain circumstances to allow for visitation with an incapacitated person.

Specifically, the legislature amended Section 5306 of EPIC, which is the provision addressing the court appointment of guardians for incapacitated persons. It added a new subsection six, providing that the probate court may appoint a limited guardian to supervise another person’s access to the incapacitated individual if the court finds clear and convincing evidence that:

• The individual is incapacitated.
• The person with the care and custody of the incapacitated individual denied another person access to the incapacitated individual.
• The incapacitated individual desires contact with the other person or that contact with the other person is in the incapacitated individual’s best interest.

No Similar Law in Place for Developmentally Disabled Individuals

While EPIC governs guardianships for incapacitated persons, Michigan’s Mental Health Code governs guardianships of developmentally disabled persons. The Code provides for the appointment of a guardian of an individual if found by clear and convincing evidence that they are developmentally disabled and totally without the capacity to care for themselves. It also provides for the appointment of a partial guardian if the individual lacks the capacity to do some, but not all, of the tasks necessary to care for themselves and their estate.

Unlike EPIC, no corresponding provision in the Mental Health Code specifically addresses visitation or the denial of visitation by a guardian. However, a probate judge has the authority to change the powers of a guardian upon petition by the disabled individual or another interested person and may enter any order the court considers appropriate and in the interest of the developmentally disabled individual. While visitation is not specifically mentioned in the statute, this authority theoretically includes allowing for visitation over the guardian’s objection if in the person’s best interest.

Since the passage of the visitation amendment to EPIC, there has been a rise in divorced parents applying for guardianship under the Mental Health Code and dealing with visitation issues through the provisions of that statute. Using the probate court and guardianship as a tool to address visitation and custody disputes between parents, when a family court judge properly addresses such matters in divorce and post-divorce proceedings, adds another level of complexity to an already contentious situation.

If you have questions regarding your rights to visit with an incapacitated or developmentally disabled loved one or need assistance overcoming a guardian’s interference with your rights, please contact Katrina Kapture.