With the Fall elections approaching, I thought it would be a good time to address voting rights of people under guardianship and/or conservatorship in Minnesota.
Can a person that is under guardianship and/or conservatorship in Minnesota vote?
Yes. As long as the Court has not restricted the right to vote of someone under guardianship, that person may do so. See Minn. Stat. 524.5-313(c )(8)
Here is what the Minnesota Secretary of State says on someone under guardianship voting.
Can a person that is under guardianship and/or conservatorship in Minnesota have the assistance of someone else in voting?
Yes. You can bring your guardian, a family member, a friend or neighbor to help you vote. They can go in the booth with you and help you fill out your ballot. There is even something called “Curbside Voting”, for people who can’t easily get out of their vehicle but want to vote. Here is what the Minnesota Secretary of State says about helping someone vote and curbside voting.
When does a Court restrict the right of someone under guardianship to vote?
Courts typically only restrict a person’s right to vote in extreme circumstances. Usually the person has to be severely impaired, so that if they were given information about two candidates, they could not understand the difference and pick one. In some counties (Hennepin), the Court will have the petitioner address the ability of the respondent to vote at the hearing on the petition for guardianship. If the Court determines that a person does not have the capacity to exercise his/her voting rights, the Court will remove that right. When the Court does remove the right of someone to vote, the Court sends that person’s name to the Secretary of State’s office and the person is removed from the list of eligible voters.
Being appointed as Guardian for someone who is incapacitated – even if it is your child who you have raised his entire life – comes with significant new responsibilities. I’ve put together my “Top 5 Tips for Guardians in Minnesota” based on questions that my clients have asked me and/or things that I have observed in my 20+ years of practicing guardianship law in Minnesota.
- Always be mindful of the rights that the person under guardianship retains. They include things like: the right to personal privacy; the right to treatment with dignity and respect; the right to have their preferences regarding medical treatment and religion given due consideration; and the right to communication with persons of their choosing. They are set forth in Minn. Stat. 5245.-120, the Bill of Rights for Wards and Protected Persons
- Don’t forget to timely serve and file with the Court the annual Personal Well Being Report and Annual Notice of Right to Petition for Termination or Modification of Guardianship. This is an easy thing to do each year, but so many Guardians fail to do it, which results in the Guardian being called back in to Court to explain why the Guardian failed to do it. Courts can – and do – issue a warrant for the Guardian’s arrest if the Guardian fails to file the annual report and fails to show up in Court to explain why they didn’t timely file the report. The form report is available on the Minnesota State Court Website.
- Listen to the person under guardianship when he talks about his situation and needs. It can be frustrating to not have your life be in your own control. If a Guardian takes the time to sit down and really listen to what the person under guardianship is saying, it can go a long way in showing that the Guardian cares and is trying to be responsive and make the best decision for the situation.
- Communicate with the person under guardianship. Keep the person under guardianship informed about the actions that you are taking and the decisions that you are making on his behalf. Being kept in the dark can be scary for the person under guardianship. Remember that he is an adult and deserves to be treated with dignity and respect. Part of that is keeping him apprised of the things that you are doing for him.
- Remember that one of your responsibilities as Guardian is to assist the person under guardianship with having as much independence and freedom as possible. This will be different for each situation. For some it may mean giving the person under guardianship unlimited phone and computer, but still requiring supervision for outings in the community. For others it may be allowing them to be unsupervised in the community. Whatever the situation, be mindful of creating as much freedom and independence as is possible, while keeping the person safe.
If you have specific questions about your duties and responsibilities as Guardian in Minnesota, please feel free to reach out to me.
Does a person under guardianship have the right to an attorney?
Yes! A person under guardianship in Minnesota has the right to an attorney in any court proceeding and for the purpose of petitioning the court. This right is set forth in the Bill of Rights of Ward and Protected Person, Minn. Stat. 524.5-120. In most counties, an attorney will be appointed from the outset for a Respondent, once a petition for guardianship has been filed. A respondent does have a right to hire his/her own private attorney (or one can be hired for him/her by the family). Once you are appointed as guardian, it’s your responsibility to make sure the ward or protected person has an attorney, if he or she wants one (or you think it’s necessary). If there are sufficient funds, a guardian can hire an attorney privately. If there are not sufficient funds (the ward is IFP -in forma pauperis), the court will appoint an attorney to represent the ward and the fees will be paid for by the county. Each county has different policies on how much an attorney for the ward is reimbursed.
FAQ Friday is a new part of this blog where Spence Legal Services will provide answers to frequently asked questions on guardianships and conservatorships in Minnesota. If you have a question that you would like answered for a future post, please submit it to Spence Legal via email (our contact information can be found on the “Contact Us” tab on this website).
FAQ: Does a person under guardianship in Minnesota retain any rights?
Yes. The rights that a person under guardianship or conservatorship in Minnesota retains are set forth in Minnesota Statute 524.5-120, which is known as “The Bill of Rights For Wards and Protected Persons”.
Unless restricted by Court Order, those rights include the right to:
- treatment with dignity and respect;
- due consideration of current and previously stated personal desires, medical treatment preferences, religious beliefs, and other preferences and opinions in decisions made by the guardian or conservator;
- receive timely and appropriate health care and medical treatment that does not violate known conscientious, religious, or moral beliefs of the ward or protected person;
- exercise control of all aspects of life not delegated specifically by court order to the guardian or conservator;
- guardianship or conservatorship services individually suited to the ward or protected person’s conditions and needs;
- petition the court to prevent or initiate a change in abode;
- care, comfort, social and recreational needs, training, education, habilitation, and rehabilitation care and services, within available resources;
- be consulted concerning, and to decide to the extent possible, the reasonable care and disposition of the ward or protected person’s clothing, furniture, vehicles, and other personal effects, 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;
- personal privacy;
- communication and visitation with persons of the ward or protected person’s choice, provided that if the guardian has found that certain communication or visitation may result in harm to the ward’s health, safety, or well-being, that communication or visitation may be restricted but only to the extent necessary to prevent the harm;
- marry and procreate, unless court approval is required, and to consent or object to sterilization as provided in section 524.5-313, paragraph (c), clause (4), item (iv);
- petition the court for termination or modification of the guardianship or conservatorship or for other appropriate relief;
- be represented by an attorney in any proceeding or for the purpose of petitioning the court; and
- vote, unless restricted by the court.
With election day soon approaching, you may be wondering if your loved one that is under guardianship or conservatorship in Minnesota retains the right to vote. The answer is yes, they mostly likely do still have the right to vote. Minnesota Statute 524.5-313, which sets forth the powers and duties of a guardian, states “unless otherwise ordered by the court, the ward retains the right to vote.” Further, the Bill of Rights For Wards and Protected Persons, Minnesota Statute 524.5-120, also delineates: “The ward or protected person retains all rights not restricted by court order and these rights must be enforced by the court. These rights include the right to . . . (14) vote, unless restricted by the court.”
So, it is necessary for you to look at the Order that was issued by the Court initially appointing the guardian (and any Orders subsequently issued by the Court) and see whether that somehow restricts the right to vote. If it doesn’t, then the ward may still vote. Despite the guardianship, the ward is still an individual whose voice still matters, so encourage him or her to have their voice heard and get out and vote!
As always, if you have specific questions about the rights of individuals under guardianship in Minnesota, please contact Buffalo, Minnesota Attorney Cindi Spence Matt.
In my work with guardianships and conservatorship in Minnesota, I’ve had experience with people who are subject to guardianships for a variety of different reasons: Down’s Syndrome, dementia, alzheimers, traumatic brain injury, physicial and sexual abuse so severe that it was debilitating, etc. Really, there are no two guardianship situations that are exactly alike. People need guardians for different reasons. People need different levels of guardianship. When a guardianship is imposed, it takes away a lot of individual freedoms and rights. Persons under guardianship can no longer do many of the things they used to be able to do themselves. They can’t contract (for the most part). They can’t make their own decision about medical care. They can’t make their own decision on where to live.
But one thing they can still do is tell their stories. Whether I’ve been representing the ward, the petitioner or the guardian, I’ve found it to be true that most of the people under guardianship love to talk about their past. About their family. About growing up. About their former jobs. About what their life was like. What is perhaps a bit surprising is that oftentimes they tell their stories quite accurately, despite having impairments that cause their short term or day-to-day functioning to be impaired. Hearing the stories of these people is one of my favorite things about my job. It is a joy to see the faces of individuals that are under a guardianship light up when they talk about their past.
I encourage friends and family members of individuals under a guardianship to sit down with their loved one and get them to share their stories. You will not only make their day, but I guarantee you will also learn something new about your loved one. And if you are lucky you will walk away from your conversation having learned a valuable life lesson as well. As a ward once told me, “The most important thing my grandfather taught me was to listen and pay attention, because you are never too old to learn.”
Recently, a 76 year old client suffering from Alzheimers Disease was asked by opposing counsel what he would do if the Court denied the petition to establish a guardianship and the elderly gentlemen could therefore leave the locked Alzheimers facility. My client responded, “Well, I would like to be able to walk outside and get the newspaper on my own. What I’m doing now, being locked up, isn’t living. It’s existing. I’m 76 years young. I want to be living, not just existing.”
Very insightful for someone suffering from fairly advanced Alzheimers. It got me thinking about the Minnesota Bill of Rights for Wards and Protected Persons. If you aren’t already familiar with it, and you practice law in this area, or have a loved one that is subject to a guardianship, or are a guardian yourself, then you should read it. And read it again. It’s important stuff. It boils down to this: just because a person has a guardianship or conservatorship imposed upon them by the Court, does not mean that the person gives up his or her basic human rights. They are still a person with feelings and desires and opinions. They deserve to live, not just exist.
So here you go, take these to heart:
524.5-120 MINNESOTA BILL OF RIGHTS FOR WARDS AND PROTECTED PERSONS.
The ward or protected person 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, medical treatment preferences, religious beliefs, and other preferences and opinions in decisions made by the guardian or conservator;
3) receive timely and appropriate health care and medical treatment that does not violate known conscientious, religious or moral beliefs of the ward or protected person;
4) exercise control of all aspects of life not delegated specifically by court order to the guardian or conservator;
5) guardianship or conservatorship services individually suited to the ward’s or protected person’s conditions and needs;
6) petition the court to prevent or initiate a change in abode;
7) care, comfort, social and recreational needs, 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 ward’s or protected person’s clothing, furniture, vehicles and other personal effects, 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) communication and visitation with persons of the ward’s or protected person’s choice, provided that if the guardian has found that certain communication or visitation may result in harm to the ward’s or protected person’s health, safety, or well-being, that communication or visitation may be restricted but only to the extent necessary to prevent the harm;
11) marry and procreate, unless court approval is required, and to consent or object to sterilization as provided in section 524.5-313, para (c) clause (4), item (iv);
12) petition the court for termination or modification of the guardianship or conservatorship or for other appropriate relief;
13) be represented by an attorney in any proceeding or for the purpose of petitioning the court; and
14) vote, unless restricted by the Court