Guardianships and Voting in New Jersey
When a guardianship is granted over a person due to incapacity, there is an adjudication by a court that the person is unable to manage their own affairs due to dementia, mental illness or some other cause. The question is often asked, does guardianship take away a person’s right to vote?
All persons are presumed by law to have capacity unless adjudicated otherwise by a court of competent jurisdiction. It is often said that we have the right to make bad decisions, and this does not mean a person needs a guardian. Much more is required.
All courts are very careful about granting guardianship because it takes away the rights of the individual. The right to handle their own finances, the right to say where and how they live. It takes away a person’s liberty. Therefore, there must be compelling evidence brought before the court to justify the issuance of a guardianship judgment.
In New Jersey, two physicians must personally examine the person and determine the need for a guardian. The court will appoint an attorney to represent the “alleged incapacitated person”, and in some cases, the court will appoint a “guardian ad litem” to investigate the circumstances and report back to the court.
If a court finds that a person lacks the ability to independently understand information vital to making informed decisions, lacks a realistic understanding of the nature and level of their impairments, has limited or no ability to plan for the future, and lacks sufficient skepticism to independently protect themselves from exploitation and undue influence, does the person retain the right to vote?
The Right to Vote After A Guardianship Judgment
In many states, the mere issuance of a guardianship judgment removes the right of the incapacitated person to vote. This is a logical outcome, as the proceeding resulted in a finding that the individual lacks decision-making capacity. However, there are different levels of capacity required for different tasks. For example, one may not be able to handle their own finances, but be perfectly able to make their own healthcare decisions. As a result, many courts will issue a limited guardianship covering only the specific needs of the individual and allowing them to retain decision-making in other areas. As a result, some states require a specific finding in the court proceeding that the person lacks the capacity to vote.
Voting Under Guardianship in New Jersey
In New Jersey, the state constitution specifically states that there must be a specific adjudication to lack the capacity to understand the act of voting (NJ Const. Art II, sec. 1). New Jersey Statutes state, “No person shall have the right of suffrage (1) who has been adjudicated by a court of competent jurisdiction to lack the capacity to understand the act of voting” NJSA 19:4-1.
It is required in New Jersey that the court make a specific finding that the “alleged incapacitated person” does not have the capacity to understand the act of voting. Of course, the court will need evidence to support its finding, and this issue must be addressed by the examining doctors in their examination, court affidavit and any report to the court. Any opposing medical reports should address this issue as well, in order to make a complete record.
The right to vote is essential to the proper working of the government. When an issue develops as to a person’s capacity, the question of their liberty arises. This question may only be determined by a court adjudication. In order for a court to clearly identify the abilities and inabilities of the individual before it, or, what if any liberties are compromised, a complete evaluation of the person’s abilities must be brought forward. Necessarily, this includes the ability to vote. Counsel must be sure to properly bring the voting issue before the court.