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