The Minnesota Court of Appeals issued a decision on January 25, 2021, governing the rights of persons subject to Guardianships. Harris o/b/o Banks v. Gellerman, A20-0527 (Minn. Ct. App. Jan. 25, 2021)
The Court of Appeals held that when a harassment restraining order (HRO) is sought upon the behalf of someone subject to guardianship, the district court must consider the relevant provisions of the Guardianship and Conservatorship Bill of Rights as well as the requirements of the HRO statute.
In Gellerman, the Ward (the person subject to the Guardianship) had an on-again off-again relationship with Gellerman. The Ward’s daughter was the guardian. The guardian filed a petition seeking an HRO against Gellerman on behalf of herself and the Ward. The Ward objected to the issuance of the HRO on her behalf.
At trial, the district court only heard testimony from the guardian and Gellerman. The court did not hear from the Ward. The court issued both HRO’s.
The Court of Appeals found that failure to take testimony from the Ward and to consider Guardianship and Conservatorship Bill of Rights was an error.
The Guardianship and Conservatorship Bill of Rights are found in Minnesota Stat. § 524.5-120. The rights retained by persons subject to guardianship and conservatorship include, but are not limited to:
- Being treated with dignity and respect;
- Consideration of prior stated desires and preferences, including religious traditions;
- Participation in decision making and receiving information regarding care;
- Exercise control over areas not delegated to the guardian and conservator;
- Access to the court to advocate for or oppose a change in residence or to Petition to the court to terminate or modify the guardianship or conservatorship;
- Access to recreation, employment, and training with available resources;
- Being consulted regarding the disposition of personal property;
- Having the ability to freely communicate with other persons unless said person posses a risk of significant harm;
- Ability to marry and procreate unless restricted by the court;
- To elect or object to sterilization;
- To vote, unless restricted by the court;
- To be consulted and to make decisions regarding the use of the person’s image and name, unless restricted by the court; and
- To execute a health care directive, unless restricted by the court.
Messick Law has extensive experience assisting clients with guardianship and conservatorship proceedings. Please contact us today to discuss our elder law services, including initiation and management of guardianship and conservatorship matters.