Guardianship
and Marriage
by
Herbert D. Hinkle, Esq. and S. Paul Prior, Esq.
Herbert D. Hinkle
Law Office
2651 Main Street
Lawrenceville, New Jersey 08648
(609) 896-4200 or (215) 860-2100
Under what circumstances
can a person under guardianship marry?
New Jersey law
prohibits the issuance of a marriage license to a person who has been
adjudicated incompetent. (The term used currently in the guardianship
statute is "incapacitated," but this incongruity is probably
not material.) Arguably, the statute is unconstitutional because in
other contexts (sterilization, voting) the courts have ruled that
a general adjudication of incapacity cannot bar the exercise of a
fundamental freedom.
Pennsylvania law
prohibits the issuance of a marriage license to a person who is "weak
minded," "insane," "of unsound mind," or
has a guardian because of "unsound mind," unless a court
decides it is in the best interest of the applicant and the general
public to issue the license. (The Pennsylvania guardianship statute
uses the term "incapacitated.") Thus, restriction on the
issuance of a marriage license is also arguably unconstitutional.
However, in both
states, these restrictions may be a moot point because the concept
of limited guardianship has been recognized. What this means is that
a court can find a person to have the capacity to exercise one right
and not another. For instance, a court could rule that a person is
unable to handle financial affairs, but retains the capacity to marry.
(Incidentally, attorneys in this office have litigated leading cases
involving sterilization and limited guardianship.)
Copyright 2002
H.D. Hinkle. All rights reserved.
Mr. Hinkle maintains
a multi-state law practice with offices in Lawrenceville, Florham
Park, and Marlton, NJ, and Yardley, Pa. Mr. Hinkle and his colleagues
Ira Fingles, and Paul Prior lecture and write frequently on topics
of law, aging, and disability, and are available
to speak to groups in New Jersey and Pennsylvania
at no charge. Call (609) 896-4200.
