SENATE DOCKET, NO. 87        FILED ON: 1/10/2023

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 402

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

Bruce E. Tarr

_________________

To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to family visitation with a vulnerable adult.

_______________

PETITION OF:

SENATE DOCKET, NO. 87        FILED ON: 1/10/2023

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 402

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 2207 OF 2019-2020.]

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-Third General Court
(2023-2024)

_______________

An Act relative to family visitation with a vulnerable adult.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Chapter 215 of the general laws as appearing in the 2020 official edition is hereby amended by inserting after section 6c the following new section:-

"Section 6d.

(a) Definitions. As used in this section shall mean the following:-

"Family caregiver" means an adult family member who is a provider of in-home care to a frail elderly individual.

"Family member" means the spouse, adult child, adult grandchild, or other close relative of the frail elderly individual.

"Frail elderly individual" means an adult over 60 years of age who is determined by a court to be functionally impaired because the person: (i) is unable to perform at least 2 activities of daily living without substantial human assistance, including verbal reminding, physical cueing, or supervision; or (ii) due to a cognitive or other mental impairment, requires substantial supervision because the person behaves in a manner that poses a serious health or safety hazard to the person or to another person.

"Petitioner" means the family member who files a verified petition for visitation under (a) of this section.

(b) Visitation with frail elderly individuals.

(i) If a family caregiver unreasonably prevents a family member from visiting the frail elderly individual, the court, upon a verified petition by the family member, may order the family caregiver to permit such visitation as the court deems reasonable and appropriate under the circumstances.

(ii) At the hearing on the verified petition for visitation, the court shall consider:

(1) the nature and extent of the frail elderly individual's functional impairment;

(2) the frail elderly individual's previously expressed preferences in regard to visitation with the petitioner;

(3) the history of visitation between the frail elderly individual and the petitioner;

(4) the opinions of any family members and the family caregiver with respect to visitation between the petitioner and the frail elderly individual; and

(5) any other area of inquiry deemed appropriate by the court under the circumstances.

(iii) The court shall not allow visitation if the court finds that:

(i) the frail elderly individual has capacity to evaluate and communicate decisions regarding visitation and expresses a desire to not have visitation with the petitioner; or (ii) visitation between the petitioner and the frail elderly individual is not in the best interests of the frail elderly individual.

(iv) Guardian ad litem for frail elderly individual.

(1) The court may appoint a guardian ad litem for the frail elderly individual if it determines such appointment to be in the frail elderly individual's best interests.

(2) The court shall appoint a guardian ad litem for the frail elderly individual if the frail elderly individual does

not appear at the hearing or is unable to appear due to hardship.

(3) The court may award reasonable compensation to a guardian ad litem appointed under this Act. The petitioner shall pay the court-awarded compensation due to the guardian ad litem, except if the court grants the verified petition for visitation and finds that the family caregiver acted maliciously in denying visitation between the petitioner and the frail elderly individual, then the family caregiver shall pay the court-awarded compensation due the guardian ad litem.

(c) Notice of hospitalization, change or residence, or death of frail elderly individual. If the court grants the petition of a family member for visitation in accordance with Section (a) the court may also order the family caregiver to use reasonable efforts to notify the petitioner of the frail elderly individual's hospitalization, admission to a healthcare facility, change in permanent residence, or death.

(d) Commencement of proceeding; notice.

(i) A proceeding under this Act shall be commenced in the court of the county in which the frail elderly individual resides.

(ii) The frail elderly individual and family caregiver shall be personally served with a copy of the verified petition for visitation and a summons not less than 14 days before the hearing. The form of the summons shall be in the manner prescribed by the probate court.

(iii) The petitioner shall provide notice of the time, date, and place of the hearing by mail to any other family members not less than 14 days before the hearing. All other notices during the pendency of the proceeding shall be served in accordance with the rules of the probate court.