Update
on Voting and Guardianship
by
Kathy Hagen
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.
