Rights to Visitation in Guardianship Proceedings

When a guardian has been appointed for a person with a disability (the “ward”) there are sometimes disagreements as to that person’s care.  These disagreements are usually between the guardian and the other relatives of the ward.  Sometimes a guardian may attempt to push the limits of their power by blocking visitation by the ward’s adult children.  In this circumstance, the adult children may feel like they have no options but to obey the commands of the guardian.  However, under Illinois law there is a remedy available for those children.

The Illinois Probate Act provides that an adult child of a ward may petition the court if it is believed that the guardian is unreasonably preventing visitation.  755 ILCS 5/11a-17(g)(2).  If the court finds visitation to be in the best interests of the ward, the court may order the guardian to allow visitation.  When determining whether visitation is in the ward’s best interests, the primary question the court will ask is whether the ward, if competent, would have wanted to engage in visitation with the adult child.

If the wishes of the ward cannot be determined, the court will then review the following factors to determine his/her best interests:

(1) The reason and nature of the proposed visitation;

(2) The benefit or necessity of the visitation;

(3) The possible risks and other consequences of the proposed visitation;

(4) Available alternatives and their risks, consequences and benefits; and

(5) Any other information, including the views of family and friends.

The bottom line for adult children of a ward to remember, is that they have rights under the law.  The guardian of a ward cannot simply make unilateral decisions to block visitation without potential repercussions from the court.   Anyone being denied visitation to their parent by a guardian should seek the advice of counsel to determine whether a petition to allow visitation would be appropriate.

Michael J. Drabant is an attorney who practices in the areas of Guardianship, Estate Planning, Probate, Elder Law, and Civil Litigation.  He can be reached at 708-482-7090 or by email at m.drabant@wilsonwilsonllc.com

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