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Can I be restricted from visiting my brother at the nursing facility?

Dear Advocate:

My brother was recently put into a nursing facility. When I went to visit him, the facility told me I could only visit during certain hours because the doctor said he was not in a good condition to receive visitors. My brother’s wife and I have never gotten along well, and it seems like the nursing home is taking her side by giving me restrictions on visiting, but not giving her those same restrictions. My brother tells me he would like me to visit more often, but I do not want to tell him what is going on because he is not feeling well. Can the nursing facility and my brother’s wife restrict me from visiting him?

Worried in Wilmington

Dear Worried,

As long as your brother has not been conserved, then others, including his wife and the facility, do not have the right to make decisions about who visits him at the nursing home or when those visits occur. While the nursing home may set restricted visiting hours for visitors such as friends and neighbors, a residents’ family members may visit at any time and are not bound by the facility’s visiting hours.

(See federal and state laws at 42 U.S.C. § 1395i-3(c)(3)(B)), (42 U.S.C. § 1396r(c)(3)(B)), (22 CCR § 72527(a)(17))

Under California Probate Code §4689, the only person who may override a resident’s visitation preferences is a court-ordered conservator of the person with a special order regarding visitation. A doctor’s opinion regarding your brother’s capacity is not legally binding. Based on the laws governing nursing home residents’ visitation rights you have a right to visit your brother any time he would like.