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BLOG: The Nebraska Family Visitation Act

Posted on Wednesday, December 4, 2019 at 12:19 PM by Elizabeth Klingelhoefer

Co-authored by: Jayme Krejci, law clerk

As our loved ones age or become dependent on caregivers to live their daily lives, others may be appointed or in charge of their care, such as a guardian, health care power of attorney, or nursing home.  While we all hope that we are able to visit our loved ones as often as we can and that they are treated with dignity and affection by their caregivers at all times, that is not always the case.  If you find yourself in a situation where a caregiver is denying you reasonable access to your loved one, you may find some legal relief through the Nebraska Family Visitation Act (“the Act”).[1] 

Passed in July of 2018, the legislative intent behind the Act is to keep certain elderly persons, or those in need of care in a residential setting or health care facility (collectively referred to as “Residents”), connected to their family members[2] over arbitrary denials of the same by caregivers.[3]  The Act authorizes a family member who is being denied access to a Resident to file a formal Petition with the county court to compel visitation, and if applicable, allows for entry of an emergency temporary order if the Resident’s health is in significant decline or death may be imminent.[4]  In deciding whether visitation between the family member and the Resident has been arbitrarily denied by the caregiver, courts consider a variety of factors, including the nature of the relationship between the Resident and the family member, the place where visitation will be exercised, the frequency and duration of the visits, and what effect the visits will have on the Resident and the Resident’s lifestyle.[5]

If the court concludes that the caregiver has been knowingly isolating the Resident from a family member, the Act allows the court to order a visitation schedule and order the caregiver to pay the family member’s court costs and reasonable attorney’s fees. [6]  A visitation order may be denied, however, under certain situations.  For example, the court may deny visitation if the Resident, while having the capacity to evaluate and communicate his/her wishes, tells the court he/she does not want to visit the family member or the court finds that visitation is not in the Resident’s best interest.[7]  Additionally, a nursing home caregiver may refuse access to a Resident if the requested access “would be injurious to the health and safety of a resident or would threaten the security of the property of a resident or the nursing home or if the person seeks access to the nursing home for commercial purposes.”[8] 

If you want to learn more about your potential rights under the Act, please contact our office for more information.  

 

 

[1] Neb. Rev. Stat. §§ 30-701 et. seq.

[2] Under the Act, the definition of “family member” includes spouses, adult children and grandchildren, parents, grandparents, siblings, aunts, uncles, nieces, nephews, cousins, and domestic partners.  Id. § 30-701(3). 

[3] Id. § 30-702. “Caregivers” is defined by the Act as a guardian, a designee under a power of attorney for health care, or another person or entity denying visitation access between a family member petitioner and a resident.  Id. § 30-701(2).

[4] Id. §§ 30-703 & -704.

[5] Id. § 30-703(2).

[6] Id. § 30-705 (providing that no costs, fees, or other sanctions are allowed to be paid by the resident or the Resident’s estate).

[7] Id. § 30-703.  

[8] Id. § 70-6021.

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