Update on Voting and Guardianship

There have been some changes in our understanding of the issue of guardianship and voting since August. Therefore, I’m writing an update to inform you of those changes.

Potential Problem Caused By Change In Law

A change in the guardianship law in 2003 complicated the issues regarding voting rights of persons under guardianship or conservatorship. Before that change, Minnesota law provided for the court to appoint either a guardian or a conservator of the person to make personal decisions. A person under conservatorship had the right to vote unless the court order said otherwise. A person under guardianship could not vote. The old law also provided that a person could have a guardian or a conservator of the estate to make financial decisions.

The new law says that all personal decision-making is by guardians, all financial decision-making is by conservators. But the new law says that a person under guardianship does not lose the right to vote unless the court orders otherwise, just as it was in the old conservatorship law.

The problem is that the Minnesota Constitution says that a person who has a guardian cannot vote. Since the State Constitution overrides state law, there is a question regarding whether a person who now is placed under guardianship or conservatorship can retain the right to vote.

The Response To This Problem: Limited Guardianships

The new law says that the court must decide whether to appoint a limited or unlimited guardian.

Persons under limited guardianships should not lose the right to vote unless the court says so. Persons who have been under conservatorship and retain the right to vote should automatically be under limited guardianship under the new law.

Modifying The Guardianship Order

Because a person under guardianship could not vote before August 2003, the person now has to do something to restore his/her right to vote. Annually, a guardian is supposed to submit a report to the court monitoring his/her guardianship activities throughout the year. Courts in Minnesota are supposed to issue letters reinstating or modifying the guardianship in accordance with this report each year. This year, 2004, those letters are supposed to contain transition language.