Guardian Restrict CommunicationA guardian may believe that certain communications or visits of a person subject to guardianship pose a risk of significant physical, psychological, or financial harm. The guardian may therefore want to restrict the communications or visits of a person subject to guardianship. To do so, however, there are procedures that both the guardian and the court must follow. 

In Minnesota, there is a bill of rights for persons subject to guardianship or conservatorship (“bill of rights”). Minn. Stat. § 524.5-120. “The person subject to guardianship or person subject to conservatorship retains all rights not restricted by court order and these rights must be enforced by the court.” Id. These rights include the right to exercise control of all aspects of life unless delegated specifically to the guardian or conservator by court order. Id. In all cases, if a guardian restricts communication, visits, or interaction with others, the guardian must provide written notice of the restrictions to the court, to the person subject to guardianship, and to the person subject to restrictions. Id. 

A guardian and the court must give due consideration of the personal desires and preferences of the person subject to guardianship. Id. Minnesota courts must “examine the bill of rights, determine the rights retained by the person in question, and enforce those retained rights.” Harris on behalf of Banks v. Gellerman, — N.W.2d —- (Minn. Ct. App. 2021). Failure to do so is reversible error.

The Gellerman case involved a guardian who disagreed with the personal desires and preferences of the person subject to guardianship to communicate, visit, or interact with Mr. Gellerman. The guardian asked the district court to issue a harassment restraining order against Mr. Gellerman to prevent him from visiting the person subject to guardianship. With assistance from an attorney, the person subject to guardianship asked the district court to dismiss the harassment restraining order against Mr. Gellerman, asserting that Mr. Gellerman did not harass her, that his visits were wanted and invited, and that she wished to maintain contact with him. 

The district court granted the guardian’s request for a harassment restraining order on behalf of the person subject to guardianship without considering the relevant provisions of the bill of rights. The Minnesota Court of Appeals reversed and remanded, ordering the district court to reconsider the guardian’s request for a harassment restraining order “in light of the relevant provisions of the bill of rights and the underlying guardianship order.”

A guardian may have legitimate reasons to want to restrict the communications or visits of a person subject to guardianship. Both the guardian and the court must, however, consider the retained rights of the person subject to guardianship under the guardianship order and Minnesota’s bill of rights for persons subject to guardianship or conservatorship, following all the procedures for notice and opportunity to be heard. 

To navigate these procedural protections, consider hiring an attorney familiar with guardianship and conservatorship proceedings.