A colleague who knows of my extensive guardianship law background asked if he was correct in his thinking that a person declared to be incapacitated continues to retain the right to vote unless that right is specifically taken away in the judgment of guardianship.
He is correct. Under NJ law, an incapacitated person retains the right to vote unless the guardianship judgment states otherwise. However, that is not the law in about 10 States so if there’s a possibility that the person may not stay in New Jersey it may make sense to have the judgment specifically state that the person retains the right to vote wherever he/she resides.
To explain the New Jersey Constitution states that “no person who has been adjudicated by a court of competent jurisdiction to lack the capacity to understand the act of voting shall enjoy the right of suffrage.” Article II, Section 1, paragraph 6 amended effective November 6, 2001.
I believe that in order to take away the right to vote, the court would have to affirmatively find that the alleged incapacitated person lacks the capacity to understand the act of voting. I often include a provision in the judgment that the person affirmatively retains the right to vote not only because other states remove the right to vote from incapacitated people, but to clarify that the person has the capacity to understand the act of voting.
It’s an interesting issue and the constitutional provision is awkwardly written and unnecessarily vague.
To discuss your NJ guardianship matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Guardianship Attorney