Guidelines for Guardianship and Conservatorship Visitation during COVID-19

Guidelines for Guardianship and Conservatorship Visitation during COVID-19

Even before the COVID-19 pandemic, many California families did not understand the rules governing visiting children under probate guardianships and senior citizens under probate conservatorships.  The pandemic and its stay-at-home orders, social distancing rules, and impact on the state have made visitation even more challenging, and it is now even more imperative for family members to take a common sense approach.

What Rules Normally Govern Visitation during an Established Probate Guardianship?

Under California Probate Code Section 2351, a guardian has the duty and responsibility for the care, custody, control, and education of the child.  However, a guardianship is not a termination of parental rights. Absent a specific court order regarding visitation, courts expect a guardian to allow reasonable visitation with the parents and to make all efforts for the child to maintain a good relationship with his or her parents.  

            California courts generally do not issue specific visitation orders, but rely on the guardian and the parents to work together to create a reasonable plan.  However, parents have the right to petition the court for a specific visitation plan, and alternatively, the guardian has the right to petition the court to limit visitation with the parents if that contact is detrimental to the minor.  Grandparents do not automatically have visitation rights, but upon petition, the court may establish visitation rights.

            Once a court makes orders regarding visitation, only the court can change or terminate it. Nevertheless, typical court orders regarding visitation in probate guardianships give broad discretion to the guardian to adjust scheduled visitation based on the guardian’s determination of the best interest of the minor.  Accordingly, conflicts between parents and guardians often arise over guardianship visitation.

What Rules Normally Govern Visitation during a Probate Conservatorship?

Unlike minors, adult conservatees have the right to determine who visits them.  Under Probate Code Section 2351, “Every adult in this state has the right to visit with and receive mail and telephone or electronic communication from whoever he or she so chooses, unless a court has specifically ordered otherwise.  The control of the conservator does not reach to visitation, unless directed to do so by the court.”  Consequently, there is no statutory provision in California granting a family member or other interested part a right to visitation with someone under a conservatorship.

            Many conservatees live in skilled nursing or care facilities, and those facilities must follow the Probate Code’s rules regarding the right of a conservatee to control his or her own visitation. In addition, Title 42, United States Code, Section 1395i-3(c)(3) and Title 42, Code of Federal Regulations, Section 483.10 ensure that residents control their own visitation absent a specific court order.  Finally, Title 42, Code of Federal Regulations, Section 482.13(h) and Title 22, California Code of Regulations Section 70707(b)(18) provide that hospitals each patient must post written policies and procedures regarding visitation rights, and that those rights must also be posted in English and in Spanish.

The present reality:  Coronavirus disease (COVID-19) and how it impacts visitation

COVID-19 disease spreads primarily through contact with an infected person when they cough or sneeze. It also spreads when a person touches a surface or object that has the virus on it, then touches their eyes, nose or mouth.  Though California has fared better than some other states, it has reported tens of thousands of cases, with Los Angeles, Riverside, and Santa Clara Counties particularly hard-hit.  Many adult conservatees are in nursing and assisted living facilities, which have been a large source of cases across the country.  The situation puts both adults and children at grave risk.

Guardianship visitation during COVID-19

Even during a pandemic, court orders governing visitation remain enforceable.  While most orders give discretion to the guardian to change visitation, absent that discretion, any changes to the order must be made through petition to the court.  Unfortunately, California courts are generally closed to these kinds of hearings during the pandemic.  So what can guardians and family members do, and what does that discretion allow?

  • Guardians should strongly consider exercising their discretion to limit visits to avoid contagion, and conservators should discuss the risks of visits with conservatees.  This is especially true if the family members seeking visits are in high-risk groups exposed to the public, like EMTs, police officers, airline pilots or flight attendants, caretakers, employees of care facilities, grocery store employees, and others in “essential” jobs or professions still exposed to the public.  Similarly, guardians should be especially cautious if a minor has risk factors (like asthma), as should conservators with elderly charges with health issues.
  • Maintain good communications among guardians and conservators, and the one hand, and family and counsel, on the other.  Phone, text, Zoom, Facetime, and other methods are suitable, and courts will not look kindly on parties using the pandemic to refuse to communicate using available methods. Guardians and conservators should direct family members to available data at the Centers for Disease Control (CDC) and similar sites to help explain the situation and justify their decisions. 
  • Guardians and conservators should also be familiar with the sheltering orders in place in the California cities and counties where their charges reside to explain to families why visits may not be possible. Guardians and conservators should encourage alternative visitation methods like videocalls (even daily or multiple times a day), telephone calls, or promises of future visits.  In the event a visit goes forward, guardians and conservators should encourage families to follow CDC guidelines, like maintaining a six-foot distance.

Ultimately, Use Common Sense

            Tension and stress between the guardians and parents of a child is common, and heightened stress during the pandemic is understandable.  The role of attorneys is often to reduce the stress. We recommend parties come up with creative solutions to either maintain visitation or safely alter the visits, or seek the intervention of experienced lawyers to assist in that process.   

            Remember that behavior by the parties and any changes to guardianship visitation may generate a contentious court hearing.  Parties should keep careful records of all calls, emails, and text messages regarding guardianship during the pandemic.  Parties should keep careful records of all contact between the children and the parents.  Seek out an attorney to assist in these issues, and only use courts as the last resort.  While parents indeed have a right to visitation, the scope of that right is subjective based on what the court deems as reasonable.  The court will be displeased if the parties can’t work out issues in good faith during a crisis.

You May Visit Family Members Facing End of Life Issues

Common sense should also prevail in conservatorships, combined with heightened attention to following state and local government rules in light of the greater vulnerability of older conservatees.  Family members must balance the likely loneliness and isolation that conservatees now feel with risks to their health, preferably by establishing creative ways to maintain contact.  Visits can be by phone and video conferencing.  Should a conservatee face end of life issues, family members can insist on access.  All present federal and statewide California restrictions regarding visitation in nursing homes and care facilities include an exception for patients facing end of life issues.  Family members can agree to wear protective clothing and follow any other reasonable restrictions in order to be with their loved one as they face end of life.

Life under COVID-19 is stressful.  At a time when family members want to be together to provide comfort and support to their children and the elderly, we face county, state, and federal orders limiting that contact.  Our firm represents many conservators and conservatees, as well as guardians and minors throughout Southern California. We continue to work with our clients to both understand the law regarding visitation in guardianships and conservatorships, as well as develop common sense strategies so that contact between family members can be maintained.

Jack Osborn

Jack B. Osborn is a Partner with Brown White & Osborn LLP and his practice focuses on probate. He is currently the President of the San Bernardino County Bar Association as well as the Chair-Elect of the Conference of California Bar Associations. Mr. Osborn is frequently called as an expert before the California legislature on proposed probate legislation.
Jack Osborn