Can my brother deny me visitation of our father if he's Dad's legal guardian?

11 answers | Last updated: May 09, 2017
Sickoffamilyfights asked...

My brother has guardianship of my Dad. He lives in my Dad's house. He won't let me in the house and he won't let me stay there. Is this legal?

Expert Answers

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

What you're describing is not so much a situation with a legal answer, as one that seems to involve deep-seated practical and personal problems that have likely been going on for a while.

Your brother's duties as a legal guardian are to make decisions that are in your father's best interests. Usually, "best interests" include visits from his other children, even if the siblings aren't the best of friends. The fact that you're ready and willing to visit your father and maintain a relationship with him in his final years has value.

It's unclear why your brother is set against letting you in the door, but as long as you haven't been threatening or abusive to your father, you and your brother should work hard to find a way to make the visitations work"”perhaps by scheduling your visits with another person present or when your brother's not there or somewhere out of the house if your dad is able to move out and about.

If you and your brother aren't able to work out a solution, then you might seek outside help. One option would be to appeal to the court that granted the guardianship to set some specific conditions on visitation. Some courts are willing to do this in the interest of making the guardianship successful. But be forewarned that some courts will be less than helpful here"”which underscores that approach of working it out on your own.

Again, if that's not possible, consider getting help from a family mediator, who can assist you all in working out an arrangement that meets everyone's needs and desire in the best way possible. Some community groups offer family mediation free or at a low cost"”and the service would also be available from trained family mediators who 9operate independently. Check your phone book or do an Internet search of "family mediation" and your city or town.

If mediation's not an option, you may get some help by inviting in a trusted family friend or relative to help you all come up with a solution.

Community Answers

Revyarb answered...

I agree with Barbara totally. I am my mom's guardian and I had to set limitations on my sister cause mom didn't feel comfortable and sis sometimes would cause a unhealthy environment.

The caregiver's voice answered...

Wow, this is a tough one. Without more details, I agree with the comments posted so far--RevYarb and Sr. Editor, Barbara. Appealing to the court might get you better results in my opinion. The question I have is WHY your brother won't allow you to see your dad-- Is he afraid you might take something from the house? Is he providing your father quality care? After all, if your dad were in a residential care facility you should have the option of visiting anytime--to make sure he is being cared for at all hours. Just a side note (glean from this what you may): When we finally placed my father in the nursing home, I restricted my siblings' access to allowing my father to leave. My concern at the time was they may take him back home, throw him into some facility without consideration of quality of care, as they tried to take his assets, which we were using to pay for his care. They could visit him, but not take him out.

During this time, we filed for a voluntary conservatorship--using court guidance, we sought to protect ourselves from potential lawsuits down the line. Just some related thoughts for you to consider.

Donna3757 answered...

When the judge granted my husband and I co-guardianship of my mother-in-law she said that we could NOT deny my brother-in-law access to her at reasonable times. (We never had denied him access)

We got her to amend that so that he has to call first. He had been coming once a week for the 5 weeks before the hearing at random and bringing a friend of his into my home. We also specified that he would not bring others to our home without our prior consent.

We were also told that we had to provide them with some privacy if they so desired.

Anyhow, here in KY the judge said that as guardians we could not deny him access to his mother. By the way, we haven't seen him in the 3 weeks since the hearing.

Sickoffamilyfights answered...

The reason he refuses to let me see my Dad is because I let out a family secret of what my brother did to me when I was younger. My Mom takes care of my Dad even though they are divorced. She gets paid for it while my brother sometimes substitute teaches. She lives 2 1/2 hours away. We also have an issue with dogs but not until now. I have been going and staying their for years. Dogs and all. Now that things are out in the open I am not allowed to even come in the house. I live 2 1/2 hours away so when I come up that was where I stayed. Obvious by brother is vary controlling. I ask to see the financial statement and have yet to see them. Do I contact his atty? My Dad also pays for everyone's groceries and some of my brother's bills but he is doing it in a way that he hides it. My Dad has a substantial amount of money and property. My Mom told me recently that if I didn't make up with my brother I would be getting nothing. I don't know what to do right now. I'm not working so getting an atty is out until a job comes along. Any suggestions? Thanks for your responses too! I forgot I put this on here. I live in the state of Missouri if that matters.

Revyarb answered...

This is the way it works here in Illinois, once a year a guardian has to submit in writing to the judge a written accounting of the person they have guardianship over. If you have knowledge of whom this judge is, you may request for this judge to ask for a auditing of the records in question. See if this works.

A fellow caregiver answered...

Folks, we are talking about civil rights violations here. If the elderly "protected person" desires to see family, or anyone for that matter, here is what the Fed Code has to say about the matter. We ALL have the right to life, liberty, pursuit of happiness and property free from oppression of any kind. 42 USC § 1395i"“3 - Requirements for, and assuring quality of care in, skilled nursing facilities (iii) Privacy The right to privacy with regard to accommodations, medical treatment, written and telephonic communications, visits, and meetings of family and of resident groups. (3) Access and visitation rights A skilled nursing facility must"” (A) permit immediate access to any resident by any representative of the Secretary, by any representative of the State, by an ombudsman described in paragraph (2)(B)(iii)(II), or by the resident's individual physician; (B) permit immediate access to a resident, subject to the resident's right to deny or withdraw consent at any time, by immediate family or other relatives of the resident; (C) permit immediate access to a resident, subject to reasonable restrictions and the resident's right to deny or withdraw consent at any time, by others who are visiting with the consent of the resident; (D) permit reasonable access to a resident by any entity or individual that provides health, social, legal, or other services to the resident, subject to the resident's right to deny or withdraw consent at any time; and (E) permit representatives of the State ombudsman (described in paragraph (2)(B)(iii)(II)), with the permission of the resident (or the resident's legal representative) and consistent with State law, to examine a resident's clinical records.

A fellow caregiver answered...

In reference to the comment above. In guardianship, it doesn't matter whether an elder's constitutional rights have been violated because guardianship usually strips an elder of constitutional rights. Elders are isolated from their families every day in spite of nursing home rules. This is because a guardian can determine it's not in the ward's "best interest" to receive visits from any particular person. Until the laws change, and they are beginning to, you'll need to make up with your brother. I know that sounds unfair. Guardianship allows your brother to abuse his power and mistreat your father in the name of "protection." He also controls the money and is not obligated to provide accounting to you. He'll provide it to the court. That doesn't mean the court will necessarily examine it. As a result, many guardians pad their fees and disguise expenses to accomplish what most people would call stealing. But due to lack of any outside monitoring of the court, guardianship in general is grotesquely flawed system. In my opinion it should be abolished.

Goodhair answered...

That last answer above me about guardianship being a serious flawed system. Trust me. It is. Whatever your family issue is, get past it or get used to a professional guardian being appointed where you have zero say so regarding what happens. It's a national epidemic and several states are in the process of legislative reform right now. The system is rife with abuse. Family feuds only gives the corrupt court, guardian ad litem, and professional guardian with high powered attorney, a great opening to come in and take over.

A fellow caregiver answered...

My dad lives with my oldest sister and she is not an assigned guardian. She is making very difficult for me to see my father. She would like an advance notice so I emailed her and mailed a copy of the email to her specifically stating "indefinite weekly visits". I did not ask her to respond. I told her I would begin on Sunday. This next Sunday I plan to show up with a police officer. I was told that an officer should talk to my father privately and ask him if he would like to visit with me. If my father (with dimentia) saids yes, but my sister saids no, then it is my understanding it is a violation of my father's rights. My next step would be to contact Adult Protection Services.

There is help answered...

We have been dealing with this same issue for 19 months since my mother had a severe hemorrhagic stroke. Long story short, CALL ELDER PROTECTIVE SERVICES, then file a motion with the court for a court ordered and approved independent conservator. Elder services will investigate and file motions in court usuing their attorneys to ask the court for orders allowing you visitation. A guardian DOES NOT have control over finanaces, a guardian is for physical guardianship only and when petitioning the courts for a conservator, all the money will be put into a conservator trust and be doled out if and when the conservator approves. My sister was stealing my mothers annuities, using my parents joint bank account like it was her own. She banned my brother and I from my parents home to see our mother. When we called in Elder services, all that monkey business was found out and put to a stop. You can also ask the court to order a GAL (Guardian Ad Litem) who will interview all parties and make a recommendation to the court about who should be guardian and what type of visitation schedule should be set. I know a lot of people on here are trying to help, but a lot of their advice is incorrect. When an elder is under guardianship, it DOES NOT mean they lose their constitutional rights. It means that the individual can no longer make reasonable safe decisions for him/her self and the guardian is appointed to do that. That does not mean the guardian can bann you from seeing your father, it only means so far, he has gotten away with it. You don't need an attorney or any money. All you need is a phone. Go online and look up Elder Protective Services for your local area and make the call. We were able to get my sister removed as guardian, get my mothers annuities into court appointed conservatorship, get her out of the family home (she was not being taken care of) and into a nursing home. She is happy, healthy and above all, being well taken care of and we all get to visit with her.