Module 5 - Voting

Case Studies:

Ward's Capacity to Vote

Following a full-blown incapacity hearing and relying upon the reports of the examining committee, parts of which conflicted with parts of others, the court entered an order determining limited capacity of the ward and removing the following rights:

  • Marry
  • Personally apply for government benefits
  • Have a driver’s license
  • Travel
  • Seek or retain employment
  • Contract, sue and defend lawsuits
  • Manage property or make any gift or disposition of property
  • Determine residence
  • Consent to medical and mental health treatment.

The court permitted the ward to retain the right to vote. The right to vote is not a delegable right.


Questions for Discussion
  1. What obligation, if any, does the guardian have to facilitate the ward’s right to vote? If the ward is unable, for whatever reason, to express how he wishes to vote, should the guardian attempt to apply principles of substituted judgment, best interests or reasonable person, and assist him in completing an absentee ballot or in voting at the polls?

  2. What if during the ward’s full capacity he always voted along Democratic lines, and now, after he’s been determined to have limited capacity, expresses wishes to vote for a Republican presidential candidate?

  3. If a guardian has the right to make life-or-death medical decisions for an individual, should voting also be something s/he can do for a ward?

  4. What if the ward has been a passionate advocate for one political party throughout his or her life and always voted the party line? Should one’s guardian be able to continue to vote the party line for the ward? What should guardians do during primary elections?

  5. If the right to vote is not assignable and only the ward may exercise that vote, how does one reconcile the fact that the ward may be easily influenced by family, friends, political activists and perhaps not voting on his beliefs?

  6. If one believes a ward should be disenfranchised based on his dementia, does that constitute discrimination against the disabled? We do not require other voters to demonstrate competency to vote; and, in fact, voters may vote based on any number of factors, some of which are irrational.

  7. Should a competency test be administered to those declared incompetent? Can administering tests to determine voting capacity be objective? Who would be required to take such a test? Would such a test be discriminatory?