Guardianship and Voting Rights

Guardianship and Voting Rights

It is sometimes necessary to place a person under guardianship to protect him or her from his or her own personal and financial decisions. Guardianship is an extreme remedy, however. It is used only when a person cannot, for example, understand the implications of his or her decisions or cannot recognize potentially harmful situations.

The person placed in guardianship is known as the “ward.” Wards are often members of the elderly population whose mental or physical health is declining. When wards enter guardianship, they are stripped of certain rights, such as the right to enter into contracts, the right to sign checks, the right to use credit cards, and the right to buy or sell property.

What some may not realize, however, is that in some states, wards lose their right to vote when they enter guardianship. This loss is presumably grounded in the assumption that wards are inherently unable to vote rationally. Because the right to vote is a personal right, wards cannot delegate their right to vote to their guardians.

The mechanics of guardianship, including the factors considered in whether to grant a guardianship and the rights lost if a guardianship is put into place, are controlled entirely by state law. Although voting is a fundamental right under the United States Constitution, almost all state constitutions include provisions that, considered in isolation, seem to strip the right to vote from their mentally incompetent citizens. Despite these state constitutional provisions, many states have addressed either the right to vote specifically or civil legal rights generally in their guardianship statutes.

Over one-third of the states specifically encourage revoking the right to vote from a ward entering a guardianship. Conversely, nine states encourage the retention of the right to vote by requiring courts to determine the status of wards’ voting rights as part of the guardianship proceedings. The remainder of the states either have no constitutional provision relating to the rights of mentally incompetent citizens to vote or have guardianship statutes that allow wards to retain all of their rights unless revoked by the adjudicating court.

To find out whether your state removes the right to vote when wards enter guardianship, contact an attorney or your election officials.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.