Person under Guardianship still has the right to vote

When a Court enters an order in a guardianship action that finds a person to be “incapacitated,” the Court is required in New Jersey to consider the functional areas in which the person needs or does not need a surrogate decision-maker, and must fashion the least restrictive arrangement that is consistent with the individual’s best interests. The Court can structure the guardianship as a plenary guardianship or a limited guardianship. The functional areas include managing one’s own medical, financial, residential and educational decisions. In a plenary guardianship, the Guardian is appointed to make all decisions (in a manner consistent with the person’s best interests or specific expressed preferences if known). There are two fundamental rights that are not automatically removed by guardianship, but should be preserved to the person in the Judgment to avoid problems: the right to vote, and the right to marry.

The NJ Constitution in Art 2, § 1, ¶ 6, was amended in 2007 and includes the following language: “No person shall have the right of suffrage who has been  adjudicated by a court of competent jurisdiction to lack the capacity to understand the act of voting.”  This means that to remove the right of suffrage from a person who is determined to be incapacitated, the Court must conduct an inquiry specifically into the person’s ability to “understand the act of voting,”  and must place that specific finding in the Judgment.

This may not be an applicable inquiry in many cases in which the extent of the person’s cognitive impairment is patent and extreme. But there could very well be situations especially with limited guardianship in which the person has long-held or deep-seated beliefs, has regularly voted, and is able to explain the “act of voting.”  Laws do vary state by state. Given how precious the right of suffrage is, advocates for the alleged incapacitated person may well want to put this issue on the table when the case is being heard by the Judge.

Call for legal advice on guardianship issues ……. 732-382-6070


There are some limits on what Guardians in NJ can do without court approval

A Legal Guardian is a person appointed by a court to be the decision-maker for a person who is incapacitated as defined by law, and unable to manage all or some of his/her affairs. The court rules provide the complex procedures (N.J. R. 4:86-1 et seq), but the powers and duties of the guardian, as well as further details about how the court has to handle the case, are found in the statutes, such as N.J.S.A. 3B:12-48, 12-49 and  12-50.

The Guardian “steps into the shoes” of the “ward” (incapacitated person), which means that unless the Judgment of Incapacity and Letters of Guardianship issued by the court have specific limitations in them, the Guardian of the Estate (Property) may take care of banking, contracts, insurance claims, applications for benefits and insurances, securities transactions, hiring and firing of persons to work for the ward, and so on. The Guardian of the Person may decide where the ward will live, obtain and consent to any kind of medical treatment, and may decline consent to some medical treatment, without obtaining further court approval. However, certain transactions do require court approval.

For example, the Guardian may not make gifts to other people with the ward’s assets or make changes to the form of ownership or titling of a ward’s assets without court permission. See N.J.S.A. 3B:12-49 (Court can authorize Guardian to do so); 3B:12-58 (gifts) and 3B:12-50 and 3B:12-62. Several cases in New Jersey have confirmed the authority of the Court to allows guardians to transfer assets: In re Trott (Estate Tax reduction planning – 1972); Matter of Manuel Labis (Medicaid planning transfers to spouse – 1998), and In re Keri ( Medicaid planning, transfers to adult children – NJ Supreme Court, 2004). Based on these precedents,  we have also obtained court authorization to transfer assets to disabled children or to trusts for family members. The plaintiff needs to include this request in the initial Complaint for Guardianship, or the Guardian will later need to file a Verified Complaint and Order to Show Cause, serve it on all the interested parties, and go back to court.

Also, the ward’s real estate may not be sold or mortgaged without court authorization. Again, a Verified Complaint is required, with service on all interested parties.The Court rules and specific procedures are at N.J. R. 4:94-1 to 7. The Court may authorize a sale if satisfied that it is in the ward’s best interest.See N.J.S.A. 3B:12-49. The guardian needs to provide the Court with proof of value and in some cases the actual proposed contract for approval.

I must say, we  have repeatedly encountered situations over the years in which guardians thought they could “make annual exclusion gifts” or sign contracts for sale of property without going back to court. Most situations have legal remedies, but complications can ensue if the guardian doesn’t have authorization, not the least of which is a cloud on the title of the property.

Call us if you are filing for guardianship or need  post-judgment court orders … 732-382-6070