Health & Benefits

If your family member gives in-home care to another family member who is 60 or over, the caregiver cannot stop you from visiting without a good reason. An Illinois law, the “Frail Elderly Individual Family Visitation Protection Act,” prevents this. 

What does the law protect against?

The law addresses the following situation: 

• One family member (“caregiver”) gives in-home care to another family member (“person receiving care”), 
• The person receiving care is over the age of 60 and meets other conditions (see below),
• A different family member wants to visit the person receiving care, and 
• For no good reason, the caregiver stops the other family member from visiting. 

The law may also protect against another situation:

• The person receiving care suffers a major event, like hospitalization or death, and
• The caregiver fails to notify other family members.

Who does the law protect?

The law protects 2 groups of people:

People 60 and over with a disability 

The law protects people 60 and over who have a disability A substantial impairment that functionally limits a person in carrying out major life activities, such as walking, lifting, seeing, or learning. . “Disability” means anyone who: 

• Is unable to perform at least 2 daily activities without help, or 
• Needs another person to supervise them because they pose a risk to themselves or others. The risk must be due to a mental impairment.

Close family members 

The law also protects the person’s: 

• Spouse, 
• Adult Any person 18 years old or over child, 
• Adult grandchild, and 
• “Other close relatives.” 

It is not clear who else is a “close relative.”

Exceptions

The law does not apply if:

• The person receiving care has a guardian, or
• The caregiver has Power of Attorney over the person receiving care.

What do I do if I am in this situation?

You can file a petition (noun) A written request to a court (verb) To request from a court in court. File the petition in the county where the person receiving care lives. You can ask the circuit clerk The office that takes care of files and documents for circuit court cases ’s office to see if they have a form petition. If not, you will need to draft it yourself, or talk to a lawyer Someone who represents clients in courts or who gives legal advice .

After you file your petition, a hearing When the parties in a case present their sides of a case to a judge or other officer will be scheduled. Then, the person receiving care and the caregiver must be served with the petition and a summons. Learn more about Serving a summons. This must be done at least 14 days before the hearing date.

If there are more family members involved, you must notify them. For example, parents, siblings, or children of the person receiving care. You must mail them information about the time, date, and place of the hearing. The same 14-day deadline applies.

How will the judge decide who wins?

At the hearing, the judge will grant you visitation rights if it finds that the caregiver unreasonably prevented you from seeing your family member. The judge weighs several factors to make this decision:

• How impaired your family member is,
• Whether your family member said or acted like they wanted you to visit before,
• Your visitation history with the family member,
• The opinion of the caregiver and any other family members, and
• Anything else.

The judge may deny To refuse or say no your petition if they decide:

• Your family member can decide who they want to visit and says they do not want you to visit, or
• Visitation between you and your elderly family member is not in their best interest.

Will my family member be represented in court?

Maybe. The judge can choose a lawyer to represent your family member as a Guardian ad Litem A person appointed by a judge to help the judge make a decision in a guardianship or family law case ("GAL"). A GAL serves as the "eyes and ears of the judge." They help the judge make a decision that is in the best interest of the person receiving care.

A judge will appoint a GAL if the person receiving care does not or cannot show up for the hearing. Even if they do show up, the judge may still appoint a GAL for them.

Note: If the judge appoints a GAL, the judge can order you to pay for the GAL's fees. But you may not have to pay if you win the case. If you win, the judge can order the caregiver to pay, if they acted badly.

What do I get if I win?

If you win, the judge will order the family caregiver to allow you to visit. The judge will decide how often and when you can visit. They may also order the family caregiver to tell you about your family member’s hospitalization, change of residence, or death. The judge’s decision will be written on an Order. Don’t leave court without a copy of the Order. Then, bring it to the circuit clerk and have them certify it.

What if I am still being denied visitation?

If you have an Order granting you visitation with your family member, the caregiver must obey it. If they do not, you can bring them back to court using a Rule to Show Cause. They will be required to come to court and explain to the judge why they have disobeyed the Order. If they do not come to court, the judge can order a body attachment, which is a warrant for the person’s arrest.