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Can a Guardian Obtain a Restraining Order Over Ward’s Objections?

When someone is unable to manage his or her own affairs, a guardian or conservator may be appointed. The person who is unable to manage his or her affairs is termed the ward. A person appointed to protect the ward’s health and well-being is a guardian; a person appointed to protect the ward’s financial affairs is a conservator.

A guardian is responsible for making sure the ward is healthy and safe. But what happens when the ward disagrees with the guardian’s decisions regarding who the ward can interact with? A recent case sheds some light on this topic.

In this case, Margaret was the ward. Her daughter, Tammy, was her guardian. Tammy attempted to obtain a harassment restraining order (HRO), on Margaret’s behalf, against Richard. Richard and Margaret had known each other for some ten years, having a romantic relationship on and off during that time. Tammy contended that Richard and Margaret’s relationship involved drugs and alcohol, that Richard had made Margaret suicidal, and that Margaret was fearful and grinded her teeth due to the stress brought on by Richard.

Margaret objected to the HRO, stating that she wanted the visits from Richard. Margaret obtained her own representation in the matter. Her attorney argued to the court that Margaret’s guardian could not deny Margaret the “right to visit with persons of her choice as guaranteed under the bill of rights”, pointing to Minn. Stat. § 524.5-120(10):

524.5-120 BILL OF RIGHTS FOR PERSONS SUBJECT TO GUARDIANSHIP OR CONSERVATORSHIP.

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. These rights include the right to:

(1) treatment with dignity and respect;

(2) due consideration of current and previously stated personal desires and preferences, including but not limited to medical treatment preferences, cultural practices, religious beliefs, and other preferences and opinions in decisions made by the guardian or conservator;

(3) participate in decision making about and receive timely and appropriate health care and medical treatment that does not violate known preferences or conscientious, religious, or moral beliefs of the person subject to guardianship or person subject to conservatorship;

(4) exercise control of all aspects of life unless delegated specifically to the guardian or conservator by court order;

(5) guardianship or conservatorship services individually suited to the conditions and needs of the person subject to guardianship or the person subject to conservatorship;

(6) petition the court to prevent or initiate a change in abode;

(7) care, comfort, social and recreational needs, employment and employment supports, training, education, habilitation, and rehabilitation care and services, within available resources;

(8) be consulted concerning, and to decide to the extent possible, the reasonable care and disposition of the clothing, furniture, vehicles, and other personal property and effects of the person subject to guardianship or person subject to conservatorship, to object to the disposition of personal property and effects, and to petition the court for a review of the guardian's or conservator's proposed disposition;

(9) personal privacy;

(10) communicate, visit, or interact with others, including receiving visitors or making or receiving telephone calls, personal mail, or electronic communications including through social media, or participating in social activities, unless the guardian has good cause to believe restriction is necessary because interaction with the person poses a risk of significant physical, psychological, or financial harm to the person subject to guardianship, and there is no other means to avoid the significant harm. In all cases, the guardian shall provide written notice of the restrictions imposed to the court, to the person subject to guardianship, and to the person subject to restrictions. The person subject to guardianship or the person subject to restrictions may petition the court to remove or modify the restrictions;

(11) marry and procreate, unless court approval is required;

(12) elect or object to sterilization as provided in section 524.5-313, paragraph (c), clause (4), item (iv);

(13) at any time, petition the court for termination or modification of the guardianship or conservatorship, and any decisions made by the guardian or conservator in relation to powers granted, or for other appropriate relief;

(14) be represented by an attorney in any proceeding or for the purpose of petitioning the court;

(15) vote, unless restricted by the court;

(16) be consulted concerning, and make decisions to the extent possible, about personal image and name, unless restricted by the court; and

(17) execute a health care directive, including both health care instructions and the appointment of a health care agent, if the court has not granted a guardian any of the powers or duties under section 524.5-313, paragraph (c), clause (1), (2), or (4).

(emphasis added)

The district court granted the HRO against Richard; Richard appealed. The appeals court reversed, stating that the district court didn’t adequately consider Margaret’s rights, as outlined in her bill of rights, when determining the matter. The appeals court explicitly stated that “courts have an affirmative duty in any proceeding involving a person subject to guardianship to examine the bill of rights, determine the rights retained by the person in question, and enforce those retained rights.”

Indeed, the bill of rights issue or argument doesn’t have to be raised by any party —the court should automatically consider the ward’s rights in such cases. As such, the case was remanded for further consideration.

ElderCounsel is dedicated to the full practice support of elder law attorneys. Contact us and learn how we can help you keep up in an ever-changing elder law environment so you don't find yourself in the same situation as this attorney.

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