Unless you have been under a rock for the past month, you know of the turmoil surrounding our Presidential election. You have seen the protests and you have heard the chants of “count every legal vote!” Recently, we handled a matter involving the right to vote of an adult under guardianship. This seemingly simple question lead to a more complicated analysis, with little definitive direction from New Hampshire statutes.
When a probate division in New Hampshire appoints a guardian, the ward is deemed incapable of exercising certain rights, such as where to live, what type of medical care to receive, or whether to marry or divorce. The guardianship statute and the official court form requesting the appointment of a guardian specifically mention these and other rights which the court may strip in whole or in part, and hand the power to make such decisions to the guardian. But missing from the statute and court form is any specific reference to one of our most fundamental of rights – the right to vote. Arguably, the guardianship statute, RSA 464-A:9, IV, could be interpreted to indirectly reference the right to vote since it provides that no person shall be deprived “of any legal rights, including” the right to marry, to obtain a driver’s license, to make a will etc., except as specifically enumerated by the court. However, the statute is less than clear. Indeed, other New Hampshire statutes that provide for involuntary admission for mental health services and rights for developmentally disabled persons specifically note that individuals covered by these statutes do maintain the right to vote.
States have different laws regarding guardianship. Some reference the right to vote and few have a specific test in place to determine the capacity to vote. These tests focus on whether the individual understands the act, objective and consequences of voting. While the New Hampshire guardianship statute is silent on whether a ward under guardianship maintains the right to vote, it does allow the court to limit the powers of the guardian, to preserve “any” right remain with the individual, and the statute also allows for the modification of earlier orders. So, in the appropriate situation, it seems the court could appoint a guardian while preserving the individual’s right to vote. Or, if the original guardianship order is silent on the ward’s ability to vote or previously found the ward incapable of exercising that right, one could petition our court to reinstate that right if circumstances have changed or for other direction. With the proper showing, the court might carve out a ward’s right to vote, even though the ward has been deemed “incapacitated.”
We routinely handle guardianship matters. Should you need assistance with a guardianship case, including questions about a ward’s right to vote, please feel free to contact our dedicated team of Probate attorneys.
