Right to visitation

Person Under Guardianship May Retain Right to Visitation

Imagine that the Arizona probate court has appointed a guardian to handle your health care, placement and other decisions. You want to see your friends and family. Do you have a right to visitation with those you choose?

Let’s not bury our lede: yes, generally speaking, you probably can have the contacts you want. There are a number of competing considerations, but Arizona law supports your right to maintain contacts.

We were reminded of this principle — and the sweeping changes in approaching the question over the past few decades — when we read a Minnesota Court of Appeals case this week. By telling Margaret Banks’ story, we can help illustrate some of the principles — even those in Arizona.

Margaret Banks’ history

Richard Gellerman and Ms. Banks, both from the Minneapolis area, had a long-term relationship. Though it was, as the court later described it, “on-again-off-again”, it lasted for ten years. Ms. Banks eventually ended up in a care facility, and under guardianship.

Ms. Banks’ daughter Tammy Ann Harris had been appointed as guardian of Ms. Banks. That meant she was in charge of placement, medical decisions and most of her mother’s life care decisions. One thing she wanted to do was to limit Mr. Gellerman’s contact with her mother.

Minnesota has a process for securing an order preventing contact — a “harassment restraining order”. Ms. Harris asked for a restraining order against Mr. Gellerman, to prevent him from having contact with either her or her mother.

The court granted the order, but Mr. Gellerman objected. That led to a court hearing on whether the order should continue. Before the hearing, Ms. Banks herself hired an attorney, who filed an affidavit signed by her. It reported that she actually did want to have contact with Mr. Gellerman. By the time of the hearing, though, her attorney had withdrawn — and the hearing was just Mr. Gellerman and Ms. Harris. The court affirmed the order, and Mr. Gellerman was barred from having contact with Ms. Banks OR Ms. Harris.

The Court of Appeals

Mr. Gellerman appealed. His lawyer argued that Ms. Banks should be able to make her own choices about contact with friends. He also argued that there was insufficient evidence to support the restraining order against contact with Ms. Harris, the daughter/guardian.

Minnesota has adopted a “Bill of Rights” for individuals under guardianship. Among the rights held even by someone subject to a guardianship: the right to “communicate, visit, or interact with others” unless contact “poses a risk of significant physical, psychological, or financial harm.” As the appellate court read it, those principles applied to Ms. Banks’ right to visitation with Mr. Gellerman. Her daughter did not have the power to make the decision for her — at least not without considering her wishes.

The Court of Appeals ruled that the trial judge had not considered Ms. Banks’ wishes, or the principles contained in Minnesota’s Bill of Rights for people under guardianship. Ms. Banks did not testify, and no one seemed to have considered her affidavit saying she wanted to have contact with her boyfriend. Though Ms. Harris testified that her mother didn’t want to see Mr. Gellerman, that was contradicted by the affidavit and should have been explored further.

As an aside, the appellate court also reversed the restraining order against Mr. Gellerman contacting Ms. Harris, as well. That part of the trial judge’s order had been based on a single telephone call; the statute requires multiple contacts before a restraining order can be issued. Harris on behalf of Banks v. Gellerman, January 25, 2021.

Would Arizona law support a right to visitation?

Though Arizona law is not as clear as Minnesota’s Bill of Rights, it’s likely that an Arizona court would reach a similar result on the same facts. There are really two parts to the Minnesota court’s holding, and each of them would differ in Arizona to some degree. But the general trend among advocates, judges and legislators has been to increase an individual’s self-determination rights even after guardianship.

The first statutory sections involved in the Gellerman case are those dealing with the harassment restraining order. Arizona has a similar statute, though it is different in some ways. In Arizona, we call it an “order of protection,” but it works in much the same fashion. Arizona does not require multiple instances, so Ms. Harris’ order might have been entered if she had lived in Arizona. The kind of interaction triggering an order of protection under Arizona law is domestic violence — which doesn’t necessarily mean physical violence, but should make Ms. Banks’ protestations more compelling.

The other set of statutes are those spelling out the rights of a person under guardianship. Arizona has not adopted a “bill of rights” like the Minnesota legislature, but the courts here would likely apply the same principles. As the court in Gellerman noted, “As recently as the 1970s, little consideration was given to the rights of persons subject to guardianship.” But modern law — in Minnesota and in Arizona — requires appropriate support for the individual’s self-reliance and autonomy.

Generally speaking, even a person under guardianship has — and should have — a right to visitation with individuals of their choice. A guardian should not limit contact unless there is some compelling physical or emotional harm to the person under guardianship. Even if there are concerns, the proper approach is to first try to limit contact in ways that minimize damages or risk before preventing contact altogether.

Other Arizona laws about the right to visitation

Although Arizona has not adopted a “bill of rights” for persons under guardianship, there are other laws supporting the right to contact with others. Arizona Revised Statutes section 14-5316, for example, directs that a guardian must “encourage and allow contact between the ward and other persons who have a significant relationship with the ward.”

As with the Minnesota statute, that obligation is not absolute. If the guardian believes that the contact will be “detrimental to the ward’s health, safety or welfare,” the visitation may be limited or prevented. In making that decision, the guardian is also directed to consider the wishes of the person under guardianship, and the probate courts have the power to cancel or modify any limiting direction.


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