In this controversial presidential election season many Americans seem eager to express their views by casting a ballot. ¬†As featured recently on¬ NPR, however, if a person is under a guardianship they may have automatically lost their voting rights.
A guardian is a court appointed person or agency responsible for making sure the¬†incapacitated person’s physical needs are met (such as safe housing, help with health care decisions, etc.). ¬†A guardian (called¬†a conservator in Virginia) may also manage that person’s money.
The problem is that “incapacity”¬†includes a range of ability. ¬†For example, a person who cannot balance a check book¬†due to brain injury may express interest and¬†preferences related to the political process. ¬†Setting aside the constitutional concerns¬†for taking these factors into account, it’s important¬†for families¬†seeking guardianship for a loved one to¬†understand¬†that voting rights might be lost.
In Virginia, the default rule is that voting rights are automatically lost; the court must enter an order to preserve them. ¬†That said, the court is directed by statute to “permit the incapacitated person to care for himself and manage property to the extent he is capable” and generally judges try to¬†permit as many¬†personal liberties as possible.
If you’re contemplating a guardianship to help a loved one, then make sure you raise the issue of voting rights. ¬†If you’re reading this article and realize voting rights have¬†not been preserved for your¬†family member under a guardianship, all is not lost. ¬†But, you must act quickly to have the issues reviewed by a court in time for the election. ¬†You should¬ contact Promise Law¬†right away for assistance – we have many years experience with the complexities of guardianship proceedings.