Visitation Between Disabled Adult Persons Under a Guardianship and Immediate Family Members

January 12, 2018

By: James M. Dore, J.D.

At Elville and Associates, we often assist clients who are dealing with unintended or unforeseen consequences of actions or, as the case may be, inactions or omissions, from years prior. At times, the resolution of those issues can be quite difficult for the clients – both emotionally and financially, and quite often the clients have absolutely no idea that the issues are lying in wait.

Consider the following scenario: a couple has four children born into their marriage. One of their children was born with lifelong congenital disabilities. As the four children grew into adulthood, the couple ultimately divorced. The father remarried and the disabled (and now adult) child resided with him and his new spouse. The adult disabled child (hereinafter, the “Disabled Person”) continued to enjoy a good relationship with his mother and siblings (hereinafter, the “Family”) even as his siblings themselves married and raised families of their own. As time went on, however, the dynamic changed, such that the relationship between the Family and the father’s second spouse became adversarial and contentious. To the extent that the Family was now able to visit and interact with the Disabled Person, it was through the efforts of the father, who sought to ensure a strong and consistent relationship between his four children, their problematic relationship with his second spouse notwithstanding.

Unfortunately, the father died quite unexpectedly, and within a few weeks of his death, the Family suddenly found itself completely cut off from the Disabled Person, who remained living with the father’s spouse. The spouse refused to facilitate physical access and contact between the Family and the Disabled Person, and she further prohibited his use of the telephone to communicate with them. Moreover, the Disabled Person had no fiduciary designated to manage his personal and financial affairs— due to the nature and extent of his disability, the Disabled Person lacked legal capacity to execute his own fiduciary instruments, (i.e., a General Durable Financial Power of Attorney and an Advance Health Care Directive/Appointment of Health Care Agent). Neither had a guardianship been established for the Disabled Person prior to the father’s death. Although the father had executed an estate plan that provided for his four children and his new spouse, his Last Will and Testament did not provide for designation of a guardian for his disabled son upon the father’s death.

With the surviving spouse unjustly refusing both access and communication between the Family and the Disabled Person, and given the need for a fiduciary to manage the Disabled Person’s affairs, the Family was left with no choice but to seek court intervention to secure guardianship of the Disabled Person. The Family wanted to ensure that the Disabled Person’s medical and financial needs would be met, and they wanted to ensure that they all could enjoy full and unfettered access to and communication with their brother, just as they had prior to the father’s untimely death.

Suffice to say, a long, bitterly contested, and costly court battle ensued, with the father’s spouse seeking her own competing guardianship of the Disabled Person. Following extensive pre-trial litigation between the parties and two days of trial, the Court was faced with a difficult decision of determining who should serve as the Guardian. In this particular case, the Disabled Person’s oldest sibling petitioned on behalf of the Family, and she had priority to serve as guardian over the competing spouse, as she was a direct heir of her disabled brother, whereas the competing spouse was not. However, Maryland law is also clear that a court, in exercising its broad power over guardianships, is not restricted in its ability to appoint a guardian of lower priority . Ultimately, the Court fashioned an Order whereby the competing spouse was awarded guardianship of the Disabled Person. In reaching that decision, the Court found that although both petitioners were otherwise fit to serve as guardians in the eyes of the Court, the Disabled Person had, in fact, resided with the competing spouse for many years, and was otherwise comfortable in that home and in his routine there. On that basis, the Court found sufficient cause to deviate from the order of priority.

However, the Court also took note of and expressed deep concern about the spouse’s interference in the loving relationship that existed between the Family and the Disabled Person, her intentional actions to cut off all contact between the Family and the Disabled Person, and her inconsistent trial testimony as to her willingness to encourage and promote the relationship if she were granted guardianship. The Court found that such attempts to fetter and alienate the relationship was not in the brother’s best interest whatsoever.

Accordingly, the Court took the additional (and somewhat unusual) step of specifying a set schedule of broad visitation and access for the Family, along with open and continuous electronic communication between them. In doing so, the Court exercised its authority under Maryland law, to ensure that the social and friendship requirements of a disabled person under guardianship are met.

This case, unfortunately, is not unique, and the reader of this article himself or herself may have been involved in a similar unhappy circumstance. It is significant to note that the Maryland General Assembly has wrestled with legislation to provide specific visitation rights in adult guardianship cases. As noted in the references, current Maryland law speaks only to a guardian’s duty to provide for “social, recreational, and friendship requirements” as a component of the “care, comfort, and maintenance” of a disabled person under guardianship. During the 2017 Session, the Assembly considered House Bill 165, which provided specific statutory language to enable a court to consider a petition by immediate family members of a disabled person to obtain access. Essentially, the law would provide a means for visitation and access similar to visitation and access of a minor child in a divorce and/or a custody dispute. Although the bill had numerous sponsors and enjoyed broad support, including testimony from the families of Mickey Rooney and Casey Kasem, the bill did not pass out of committee. The Assembly may revisit the issue in a future session, but it is uncertain at this time.

The upshot of this case study is that surprise, conflict, bitterness, and confusion can be avoided or, at least ameliorated, with careful and individualized planning by those with disabled family members, and illustrates another reason to ensure the proper documents exist and are kept up to date.

1 Section 13-707(a) of the Estates & Trusts Article of the Annotated Code of Maryland provides as follows:
(a) Priorities. — Persons are entitled to appointment as guardian of the person according to the following priorities:
(1) A person, agency, or corporation nominated by the disabled person if the disabled person was 16 years old or older when the disabled person signed the designation and, in the opinion of the court, the disabled person had sufficient mental capacity to make an intelligent choice at the time the disabled person executed the designation;
(2) A health care agent appointed by the disabled person in accordance with Title 5, Subtitle 6 of the Health – General Article;
(3) The disabled person’s spouse;
(4) The disabled person’s parents;
(5) A person, agency, or corporation nominated by the will of a deceased parent;
(6) The disabled person’s children;
(7) Adult persons who would be the disabled person’s heirs if the disabled person were dead;
(8) A person, agency, or corporation nominated by a person caring for the disabled person;
(9) Any other person, agency, or corporation considered appropriate by the court; and
(10) For adults less than 65 years old, the director of the local department of social services or, for adults 65 years old or older, the Secretary of Aging or the director of the area agency on aging, except in those cases where the department of social services has been appointed guardian of the person prior to age 65. Upon appointment as guardian, directors of local departments of social services, directors of area agencies on aging, and the Secretary of Aging may delegate responsibilities of guardianship to staff persons whose names and positions have been registered with the court.
2 Section 13-707(c) of the Estates & Trusts Article of the Annotated Code of Maryland provides, in relevant part, as follows:
(c) Selection by court. –
(1) Among persons with equal priority the court shall select the one best qualified of those willing to serve. For good cause, the court may pass over a person with priority and appoint a person with a lower priority.
3 Section 13-708(b) of the Estates & Trusts Article of the Annotated Code of Maryland provides, in relevant part, as follows:
(b) Nonexclusive enumeration of permissible powers. — Subject to subsection (a) of this section, the rights, duties, and powers which the court may order include, but are not limited to:
(3) The duty to provide for care, comfort, and maintenance, including social, recreational, and friendship requirements, and, if appropriate, for training and education of the disabled person;
4 During trial of the case discussed above, the Court-appointed counsel for the Disabled Brother wryly—but astutely– noted that the matter seemed almost to be a custody/visitation case disguised as a guardianship