During the 2020 legislative session, Minnesota’s guardianship laws underwent several substantial changes. These recent reforms were meant to promote supported decision-making and provide less restrictive alternatives to guardianships in order to help ensure the person in need of a guardian retains their civil liberties. Significantly, the changes strengthened the protections in the Guardianship Bill of Rights — which is codified under Minnesota law.
A guardianship is a legal arrangement in which an individual appointed by the court is authorized to make decisions on behalf of a person who lacks the capacity to make personal choices on their own. Not to be confused with a conservatorship — in which someone is appointed to make financial decisions — a guardian makes decisions regarding the day-to-day needs of the person subject to guardianship. This can include decisions concerning medical care, nutrition, housing, and clothing.
A Minnesota guardianship ends upon the expiration of the guardianship, the death of the person subject to the guardianship, or by order of the court.
The Guardianship and Conservatorship Bill of Rights is set forth in Minnesota Stat. § 524.5-120 and provides extensive protections to ensure a guardian does not abuse their authority. It specifies that a person subject to a guardianship or conservatorship retains all rights that have not been otherwise restricted by an order issued by the court. Such rights must be enforced by the court, including the following, which are outlined under the statute:
(1) The right to be treated with dignity and respect;
(2) The right to have their desires and preferences considered, including those concerning medical treatment, cultural practices, and religious beliefs;
(3) The right to participate in decision-making regarding healthcare;
(4) The right to exercise control over all aspects of their life unless specifically delegated to the guardian or conservator by court order;
(5) The right to have access to guardianship or conservatorship services suited to their needs;
(6) The right to petition the court to prevent or initiate a change in their abode;
(7) The right to care, comfort, recreation, employment, education, and rehabilitation services within the resources that are available;
(8) The right to be consulted concerning the disposition of their property;
(9) The right to personal privacy;
(10) The right to communicate with others, receive visitors, and make phone calls;
(11) The right to marry and procreate;
(12) The right to elect or object to sterilization;
(13) The right to petition the court to terminate or modify the guardianship or conservatorship;
(14) The right to be represented by an attorney for the purpose of petitioning the court;
(15) The right to vote;
(16) The right to make decisions concerning their personal image and name;
(17) The right to execute a healthcare directive and appoint a healthcare agent.
It’s essential to understand that if the guardian was not appointed by the court with the power to make certain decisions, they do not have the right to do so — and the authority remains with the person subject to the guardianship. However, the guardian can still play a vital role in supporting the person in the choices they make and helping to ensure the decisions made are consistent with their values and needs. In such cases, the likelihood of harm to the person must be weighed and balanced with the person’s happiness and choices.
One of the most crucial protections offered to a person subject to guardianship in the Minnesota Guardianship Bill of Rights concerns the right to communicate and visit with others. Unless certain communication or visitation would pose a risk of causing significant physical, emotional, or financial harm to the person subject to guardianship, this right cannot be restricted.
If a guardian disagrees with the individual’s desire to communicate or visit with a specific person, there are specific court procedures that must be followed to restrict the interaction. Notably, even if the guardian has legitimate reasons to wish to restrict communication, the relevant provisions in the Guardianship Bill of Rights must be carefully considered — including those concerning the personal wishes of the person subject to guardianship. In the event the guardian believes it is necessary to petition the court to restrict communication or visitation, the proper legal procedures for notice and the opportunity to be heard must be followed.
In some cases, guardianships are only needed for a limited amount of time. Anyone with an interest in the welfare of the person subject to guardianship may petition to end the arrangement if a guardianship is no longer necessary. A petition for removal of the guardian may also be brought if good cause exists, and removal would be in the best interests of the ward.
Parties who may file a petition to terminate a guardianship can include the person subject to the guardianship, interested family members, a social worker, or a doctor. The current guardian can also petition to end the arrangement. A court hearing must be scheduled and all interested parties must have notice of the hearing. Terminating a guardianship requires prima facie evidence that the person no longer needs a guardian.
Guardianship matters can be complicated and it’s vital to have a skilled attorney by your side to assist you with navigating the legal process. At Dave Burns Law Office, I provide reliable representation and skillful counsel for Minnesota guardianship proceedings. If you would like to discuss a guardianship matter, I welcome you to contact me at (612) 677-8351 or by emailing dave@daveburnslaw.com. I assist clients throughout the Twin Cities metro area and am available to meet with clients in both Minneapolis and St. Paul.
Categories: ProbateThe Dave Burns Law Office hopes you find this article helpful. But please do not rely on it as legal advice. The law changes regularly and the outcome of any legal matter depends on its unique circumstances. View full disclaimer
