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| 2 | 2 | | SENATE DOCKET, NO. 87 FILED ON: 1/10/2023 |
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| 3 | 3 | | SENATE . . . . . . . . . . . . . . No. 402 |
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| 4 | 4 | | The Commonwealth of Massachusetts |
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| 5 | 5 | | _________________ |
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| 6 | 6 | | PRESENTED BY: |
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| 7 | 7 | | Bruce E. Tarr |
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| 8 | 8 | | _________________ |
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| 9 | 9 | | To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General |
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| 10 | 10 | | Court assembled: |
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| 11 | 11 | | The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill: |
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| 12 | 12 | | An Act relative to family visitation with a vulnerable adult. |
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| 13 | 13 | | _______________ |
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| 14 | 14 | | PETITION OF: |
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| 15 | 15 | | NAME:DISTRICT/ADDRESS :Bruce E. TarrFirst Essex and Middlesex 1 of 4 |
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| 16 | 16 | | SENATE DOCKET, NO. 87 FILED ON: 1/10/2023 |
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| 17 | 17 | | SENATE . . . . . . . . . . . . . . No. 402 |
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| 18 | 18 | | By Mr. Tarr, a petition (accompanied by bill, Senate, No. 402) of Bruce E. Tarr for legislation |
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| 19 | 19 | | relative to family visitation with a vulnerable adult. Elder Affairs. |
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| 20 | 20 | | [SIMILAR MATTER FILED IN PREVIOUS SESSION |
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| 21 | 21 | | SEE SENATE, NO. 2207 OF 2019-2020.] |
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| 22 | 22 | | The Commonwealth of Massachusetts |
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| 23 | 23 | | _______________ |
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| 24 | 24 | | In the One Hundred and Ninety-Third General Court |
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| 25 | 25 | | (2023-2024) |
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| 26 | 26 | | _______________ |
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| 27 | 27 | | An Act relative to family visitation with a vulnerable adult. |
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| 28 | 28 | | Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority |
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| 29 | 29 | | of the same, as follows: |
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| 30 | 30 | | 1 SECTION 1. Chapter 215 of the general laws as appearing in the 2020 official edition is |
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| 31 | 31 | | 2hereby amended by inserting after section 6c the following new section:- |
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| 32 | 32 | | 3 "Section 6d. |
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| 33 | 33 | | 4 (a) Definitions. As used in this section shall mean the following:- |
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| 34 | 34 | | 5 "Family caregiver" means an adult family member who is a provider of in-home care to a |
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| 35 | 35 | | 6frail elderly individual. |
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| 36 | 36 | | 7 "Family member" means the spouse, adult child, adult grandchild, or other close relative |
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| 37 | 37 | | 8of the frail elderly individual. 2 of 4 |
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| 38 | 38 | | 9 "Frail elderly individual" means an adult over 60 years of age who is determined by a |
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| 39 | 39 | | 10court to be functionally impaired because the person: (i) is unable to perform at least 2 activities |
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| 40 | 40 | | 11of daily living without substantial human assistance, including verbal reminding, physical |
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| 41 | 41 | | 12cueing, or supervision; or (ii) due to a cognitive or other mental impairment, requires substantial |
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| 42 | 42 | | 13supervision because the person behaves in a manner that poses a serious health or safety hazard |
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| 43 | 43 | | 14to the person or to another person. |
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| 44 | 44 | | 15 "Petitioner" means the family member who files a verified petition for visitation under (a) |
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| 45 | 45 | | 16of this section. |
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| 46 | 46 | | 17 (b) Visitation with frail elderly individuals. |
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| 47 | 47 | | 18 (i) If a family caregiver unreasonably prevents a family member from visiting the frail |
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| 48 | 48 | | 19elderly individual, the court, upon a verified petition by the family member, may order the family |
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| 49 | 49 | | 20caregiver to permit such visitation as the court deems reasonable and appropriate under the |
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| 50 | 50 | | 21circumstances. |
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| 51 | 51 | | 22 (ii) At the hearing on the verified petition for visitation, the court shall consider: |
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| 52 | 52 | | 23 (1) the nature and extent of the frail elderly individual's functional impairment; |
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| 53 | 53 | | 24 (2) the frail elderly individual's previously expressed preferences in regard to visitation |
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| 54 | 54 | | 25with the petitioner; |
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| 55 | 55 | | 26 (3) the history of visitation between the frail elderly individual and the petitioner; |
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| 56 | 56 | | 27 (4) the opinions of any family members and the family caregiver with respect to visitation |
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| 57 | 57 | | 28between the petitioner and the frail elderly individual; and 3 of 4 |
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| 58 | 58 | | 29 (5) any other area of inquiry deemed appropriate by the court under the circumstances. |
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| 59 | 59 | | 30 (iii) The court shall not allow visitation if the court finds that: |
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| 60 | 60 | | 31 (i) the frail elderly individual has capacity to evaluate and communicate decisions |
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| 61 | 61 | | 32regarding visitation and expresses a desire to not have visitation with the petitioner; or (ii) |
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| 62 | 62 | | 33visitation between the petitioner and the frail elderly individual is not in the best interests of the |
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| 63 | 63 | | 34frail elderly individual. |
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| 64 | 64 | | 35 (iv) Guardian ad litem for frail elderly individual. |
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| 65 | 65 | | 36 (1) The court may appoint a guardian ad litem for the frail elderly individual if it |
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| 66 | 66 | | 37determines such appointment to be in the frail elderly individual's best interests. |
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| 67 | 67 | | 38 (2) The court shall appoint a guardian ad litem for the frail elderly individual if the frail |
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| 68 | 68 | | 39elderly individual does |
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| 69 | 69 | | 40 not appear at the hearing or is unable to appear due to hardship. |
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| 70 | 70 | | 41 (3) The court may award reasonable compensation to a guardian ad litem appointed under |
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| 71 | 71 | | 42this Act. The petitioner shall pay the court-awarded compensation due to the guardian ad litem, |
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| 72 | 72 | | 43except if the court grants the verified petition for visitation and finds that the family caregiver |
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| 73 | 73 | | 44acted maliciously in denying visitation between the petitioner and the frail elderly individual, |
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| 74 | 74 | | 45then the family caregiver shall pay the court-awarded compensation due the guardian ad litem. |
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| 75 | 75 | | 46 (c) Notice of hospitalization, change or residence, or death of frail elderly individual. If |
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| 76 | 76 | | 47the court grants the petition of a family member for visitation in accordance with Section (a) the |
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| 77 | 77 | | 48court may also order the family caregiver to use reasonable efforts to notify the petitioner of the 4 of 4 |
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| 78 | 78 | | 49frail elderly individual's hospitalization, admission to a healthcare facility, change in permanent |
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| 79 | 79 | | 50residence, or death. |
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| 80 | 80 | | 51 (d) Commencement of proceeding; notice. |
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| 81 | 81 | | 52 (i) A proceeding under this Act shall be commenced in the court of the county in which |
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| 82 | 82 | | 53the frail elderly individual resides. |
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| 83 | 83 | | 54 (ii) The frail elderly individual and family caregiver shall be personally served with a |
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| 84 | 84 | | 55copy of the verified petition for visitation and a summons not less than 14 days before the |
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| 85 | 85 | | 56hearing. The form of the summons shall be in the manner prescribed by the probate court. |
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| 86 | 86 | | 57 (iii) The petitioner shall provide notice of the time, date, and place of the hearing by mail |
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| 87 | 87 | | 58to any other family members not less than 14 days before the hearing. All other notices during |
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| 88 | 88 | | 59the pendency of the proceeding shall be served in accordance with the rules of the probate court. |
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