Tammy Ann Harris, and on behalf of Margaret M. Banks, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0527

Tammy Ann Harris, and on behalf of Margaret M. Banks,
Respondent,

vs.

Richard Mark Gellerman,
Appellant.

Filed January 25, 2021
Reversed and remanded
Jesson, Judge

Goodhue County District Court
File No. 25-CV-20-283

Tammy Ann Harris, Lake City, Minnesota (pro se respondent)

Bruce K. Piotrowski, Restovich Braun & Associates, Rochester, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Jesson, Judge; and
Slieter, Judge.
SYLLABUS
When reviewing a petition for a harassment restraining order on behalf of a person
subject to guardianship, the court must consider not only the harassment restraining order
request, but also the relevant provisions of the bill of rights of persons subject to
guardianship or conservatorship, in conjunction with the guardianship order.

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OPINION
JESSON, Judge
The issues presented in th is case are at the inters ection of protection against
harassment and guardianship law. Margaret Banks, a person subject to guardianship, was
granted a harassment restraining order (HRO) on her behalf against appellant Richard
Gellerman. The district court granted the HRO at the request of her daughter and guardian,
respondent Tammy Harris, who also obtaine d an HRO for herself against Gellerman.
Despite the fact that Banks—invoking th e bill of rights of persons subject to
guardianship—had moved the district court to dismiss the HRO, it never determined the
scope of Banks’s rights as a person subject to guardianship. Gellerman appeals, asserting
that the district court abused its discretion when it issued both HROs. Because the district
court considered the HRO on behalf of Banks without considering the relevant provisions
of the bill of rights of persons subject to guardianship or c onservatorship (bill of rights)
and because there was insuffi cient evidence to support the HRO for Harris against
Gellerman, we reverse both HROs and rema nd for reconsiderati on of the HRO petition
with regard to Banks.
FACTS
For ten years, Richard Gellerman and Ma rgaret Banks had an on-again-off-again
relationship. When Gellerman began to vi sit Banks at her care facility in November
2019—after a previous HRO against Ge llerman expired—Tammy Harris, Banks’s
daughter and guardian, filed for an HRO on Banks’s behalf to prevent Gellerman’s visits.

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Harris also filed for her own HRO against Gellerman after he called her workplace to
question her character. The district court granted ex parte HROs and scheduled a hearing.
On February 21, 2020, Banks, with assist ance from an attorney, requested that the
HRO on her behalf be dismissed. In her mo tion, Banks asserted that she wanted legal
representation, that Gellerman did not harass he r, that his visits were wanted and invited,
and that she wished to maintain contact with Gellerman.
When the district court first heard the ma tter on February 28, 2020, Banks’s attorney
was present on her behalf. In addition to reiterating Banks’s request, the attorney
challenged Harris’s authority to deny Banks the right to visit with persons of her choice as
guaranteed under the bill of rights. Minn. Stat. § 524.5-120(10) (2018). When the district
court questioned the legal basis for ignoring Harris’s HRO request on behalf of Banks and
hearing Banks’s motion to dismiss the HRO, th e attorney reminded the district court that
Banks “retains all rights not restricted by c ourt order and the rights must be enforced by
the court.”
The district court rescheduled the hearing to ensure adequate opportunity to address
this issue along with those presented by Harris’s petition. In the meantime, Harris moved
Banks to a new care facility. Then, on March 3, 2020, less than 24 hours before the
rescheduled hearing, Banks’s attorney withdr ew from the case. De spite her attorney’s
withdrawal, Banks’s request for dismissal remained. The next day, the hearing proceeded

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as scheduled in front of a different judge . Both Gellerman and Harris—but not Banks—
provided testimony in support of their positions.1
With respect to the HRO on behalf of Ba nks against Gellerman, Harris testified that
from December 2019, to February 2020, Gellerman visited Banks at her care facility nearly
every weekend, despite being prohibited from doing so. 2 Such visits impacted Banks’s
safety, security, and privacy, Harris testified, by causing Banks to be afraid and grind her
teeth. In fact, Banks’s recent move to a new facility was done in an effort to keep
Gellerman from visiting Banks. Harris stated that Banks was happy with the move because
“she knows [Gellerman] can’t get to her.” In addition to the fear and teeth grinding, Harris
alleged that Banks and Gellerman’s ten-year relationship involved alcohol and drug abuse
and that Gellerman’s influence on Banks made her suicidal.
In his testimony, Gellerman admitted to visiting Banks every weekend since the
expiration of his previous rest raining order, but maintained that she was happy with his
renewed visits. He denied th at Banks grinds her teeth beca use of him. Gellerman also
testified that Banks wanted to see him.
The district court then heard testimony about the HRO for Harris against Gellerman.
Harris explained that she sought the HRO be cause, on one occasion, Gellerman made a
phone call to her place of work—which also happened to be the care facility where Banks

1 Banks was present in the cour thouse, though not in the cour troom, and was available to
testify. Neither Harris nor Gellerman called her as a witness. Banks was not represented
by an attorney at the time.
2 We note that Gellerman disput es Harris’s claim and testified that he was never told he
could not visit Banks.

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was residing. According to Harris, Gellerman accused her of poisoning Banks, referred to
Harris as a psychopath, and requested a wellness check on Banks because she was
“probably dead by now.” Gellerman admitted to making such a call but disputed what he
said. This was the only incident occurri ng between Gellerman and Harris that was
introduced in support of the HRO.
Following the hearing, the district cour t found that Gellerman had harassed Harris
and Banks and granted both HROs. In doing so, the district court did not explicitly address
Banks’s motion to dismiss the HRO. Nor did the district court reference the guardianship
order.3
Gellerman appeals.
ISSUES
I. Did the district court abuse its discretion when it granted the HRO against
Gellerman on behalf of Banks?

II. Did the district court abuse its discre tion when it granted the HRO for Harris
against Gellerman?
ANALYSIS
We review a district court’s application of law de novo. Harlow v. State, Dep’t of
Human Servs., 883 N.W.2d 561, 568 (Minn. 2016). Where, as here, the application of law
occurs as part of a discretionary decision to grant an HRO, we review that decision for an
abuse of discretion. Kush v. Mathison, 683 N.W.2d 841, 843 (Minn. App. 2004), review
denied (Minn. Sept. 29, 2004). With these standards in mind we review Gellerman’s

3 Despite being a required part of the HR O petition, the guardian ship order was not
included.

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claims. We begin by considering whether the district court abused its discretion in its
application of Minnesota guardianship law when granting the HRO against Gellerman on
behalf of Banks. Then we address whether the district court abused its discretion in
granting the HRO against Gellerman for Harris.
I. The district court abused its discretio n in granting the HRO against Gellerman
on behalf of Banks.
Gellerman first argues there was insufficien t evidence to support the conclusion that
he harassed Banks, particularly given Bank s’s affidavit stating she sought continued
contact with him. Citing the bill of rights of persons subject to guardianship, he further
designates as error the district court’s refusa l to address the applicability of that law,
including protections involving visitation.
To address these intertwined arguments, we begin by describing the protections
guaranteed by the bill of rights. We then turn to apply them to the HRO proceeding before
us.
Bill of Rights of Persons Subject to Guardianship
The current bill of rights represents a sw eeping tide of change in guardianship law
across the last 50 years. As recently as the 1970 s, little consideration was given to the
rights of persons subject to guardianship. Alexus Anderson, Guardianship: A Violation of
the Americans with Disabilities Act and What We Can Do About It, 13 St. Thomas J.L. &
Pub. Pol’y 117, 120 (2019). At that time, guardians had “charge of the person of the ward”
with no appreciable limits on the guardian’s duties or powers. Minn. Stat. § 525.56, subd. 1
(1978). But as concern about the rights of those under guardianship evolved, so did

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Minnesota law. Elizabeth M. Winchell, If You Want Something Done Right, You’ve Got
To Do It Yourself: Minnesota Guardians, Group Homes, and the Impermissible Delegation
After In Re Guardianship of Jeffrey DeYoung, 35 Hamline L. Rev. 675, 695, 700 (2012);
Sean Burke, Person-Centered Guardianship: How the Rise of Supported Decision-Making
and Person-Centered Services Can Help Olmstead’s Promise Get Here Faster, 42 Mitchell
Hamline L. Rev. 873, 880-82, 890 (2016). Significant change resulted in statutes with two
critical objectives: to make guard ianships rare and, when they are in place, to only give
powers to the guardian that are truly necessary. Minn. Stat. § 525.56, subd. 2 (1980)
(limiting a guardian’s powers to only those “n ecessary to provide for the demonstrated
needs” of the person in their care); Winchell, supra, at 700.
Now, a court may only appoint a guardia n if it finds by clear and convincing
evidence that an individual is incapacitated and their identified needs cannot be met by less
restrictive means than the pr oposed guardianship. Minn. St at. § 524.5-310(a) (2018).
Further, a court may only grant a guardian
those powers necessitated by the ward’s limitations and
demonstrated needs and, whenev er feasible, make appointive
and other orders that will encourage the development of the
ward’s maximum self-reliance and independence. Any power
not specifically granted to th e guardian, following a written
finding by the court of a demonstr ated need for that power, is
retained by the ward.

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Id. (c) (emphasis added). 4 But the evolution of guard ianship law did not end with
restrictions on the issuance of the original guardianship order. The law now also identifies
specific rights retained by the individual under guardianship, absent court order.
Under the bill of rights of persons subject to guardianship, originally passed in 2009,
individuals maintain a non-exhaustive list of rights, including the right to visitation unless
restricted by court order. Minn. Stat. § 524.5 -120 (2018). Specifically identified by the
bill of rights are the rights to
(1) treatment with dignity and respect;
(2) due consideration of curre nt and previously stated
personal desires . . . ;
. . . .
(4) exercise control of all aspects of life not delegated
specifically by court order to the guardian . . . ;
. . . .
(6) petition the court to prevent or initiate a change in
abode;
. . . .
(9) personal privacy;
(10) communication and visitation with persons of the
ward’s or protected person’s choice . . . ;
. . . .
(12) petition the court for termin ation or modification of the
guardianship; [and]
(13) be represented by an atto rney in any proceeding or for
the purpose of petitioning the court . . . [.]
Id. (emphasis added). Finally, the statute provides that rights retained by the person subject
to guardianship “must be enforced by the court.” Id. (emphasis added).

4 Under the 2020 amendments to the Minneso ta Uniform Guardianship and Protective
Proceedings Act, “wards” are now “persons subject to guardianship.” Compare Minn. Stat.
§ 524.5-102, subd. 17 (2018), with 2020 Minn. Laws ch. 86, ar t. 1, § 7, at 296 (to be
codified at Minn. Stat. § 524.5-102, subd. 13b (2020)).

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Application of the Bill of Rights in this HRO Proceeding
With these rights in mind, we turn to the proceeding before us. Here, although the
judge at the initial hearing rescheduled the matter explicitly so that Banks’s arguments
(including her bill-of-rights assertion) could be considered, the district court did not do so.
Rather, the district court heard only from Harris and Gellerman, even though the transcript
reflects that Banks was elsewhere in the courthouse. It did not inquire into whether Banks
sought new representation by an attorney. It did not consider Banks’s stated desire to have
visits with Gellerman. It did not review the guardianship order to ascertain which (if any)
rights were retained by Banks.
This was error. As described above, co urts have an affirm ative 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 en force those retained rights.
Id. (“The ward or protected person retains all rights not restricted by court order and these
rights must be enforced by the court.” (emphasis added)); see Minn. Stat. § 645.44,
subd. 15a (2018) (stating that “‘[m]ust’ is mandatory”). Given the dispute over visitation,
Banks’s rights should have been front and center here. As a result, the district court had
an obligation to not only hear from the guardian when considering the HRO request, but to
also consider Banks’s rights as a person under guardianship . The failure to consider
Banks’s rights was especially troubling here, where it was explicitly raised in a motion to
dismiss, but we note that the obligation to consider the bill of rights in an HRO proceeding
involving a person under guardianship is not limited to cases in which the issue is explicitly
raised by a party.

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This obligation to consider an individual’s preference regarding visitation predates
the bill of rights. In In re Guardianship of Kowalski , we emphasized the importance of
both the protected person’s best interests, as well as their stated preference regarding
visitation. 382 N.W.2d 861, 867 (Minn. App. 1986), review denied (Minn. Apr. 18, 1986).
And we noted that preference on visitation may change. Id. We concluded that
the guardian is bound by the trial court order to balance [the
person subject to guardianship’s] wishes with her best interest.
These factors may not be in agre ement. Evidence of whether
the guardian has abused his authority as ordered by the trial
court to properly consider both the [person subject to
guardianship’s] best interest and her desires may be brought to
the trial court’s attention as the guardianship progresses.

Id. (emphasis added). Under our decision in Kowalski, as well as the subsequent bill of
rights, courts have an ongoing responsib ility to ensure that a person subject to
guardianship’s right to visitation is protected. Id.
In sum, when reviewing a petition for an HRO filed on behalf of a person subject to
guardianship, a district court must not only consider the HRO request, but also the relevant
provisions of the bill of rights, in conjunc tion with the guardianshi p order. The district
court abused its discretion by not doing so here when granting the HRO on Banks’s behalf.
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5 On remand, the district court should also inquire as to Banks’s desire for counsel. Minn.
Stat. § 524.5-120(13).

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II. The district court abused its discret ion in granting Harris an HRO against
Gellerman.

Gellerman further asserts that there is insufficient evidence to support the HRO
between himself and Harris because his actions were not repeated. We review a district
court’s grant of an HRO for an abuse of discretion. Kush, 683 N.W.2d at 843.
Harassment is defined as “ repeated incidents of intrusive or unwanted acts, words,
or gestures that have a subs tantial adverse effect or are intended to have a substantial
adverse effect on the safety, security, or pr ivacy of another.” Minn. Stat. § 609.748,
subd. 1(a)(1) (2018) (emphasis added). A dist rict court may grant an HRO if there are
“reasonable grounds” to believe that harassment occurred. Id., subd. 5(b)(3) (2018). To
reach its decision, “[a] district court must base its findings in support of a restraining order
on testimony and documents properly admitted.” Kush, 683 N.W.2d at 844.
Here, the only alleged incident of harassment between Harris and Gellerman was a
phone call to Harris’s place of work. Harris testified that Gellerman called her workplace,
alleged that she was poisoning her mother, re ferred to her as a psychopath, and requested
a wellness check for Banks. Gellerman admitted to making the call, but disputed what was
said. The record is devoid of any other interactions between Gellerman and Harris beyond
that single, isolated phone call. Indeed, the district court’s only finding with regard to the
HRO between Harris and Gellerm an was that Gellerman “contacted petitioner Harris’[s]
employment” and “maligned [her] . . . trying to get her fired.” Despite this, the district
court still granted the HRO.

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Because harassment requires multiple incidents of adverse and unwanted contact,
and the record does not indicate that repeated contact occurred, we conclude that the district
court abused its discretion by granting the HRO between Gellerman and Harris.
DECISION
Courts have an obligation to determine th e rights of persons subject to guardianship
and ensure those rights are protected. Minn. Stat. § 524.5-120. Here, the district court
failed to fulfill that duty by neglecting to cons ider the bill of rights of persons subject to
guardianship in this HRO proceeding. We th erefore reverse the grant of the HRO as to
Banks and remand to the district court for re newed consideration of that HRO request in
light of the relevant provisions of the bill of rights and the underlying guardianship order.
With regard to the HRO for Ha rris against Gellerman, the district court further abused its
discretion when it granted the HRO without evidence of repeated instances of harassment.
Accordingly, we reverse the grant of the HRO for Harris against Gellerman.
Reversed and remanded.