Voting Rights and Capacity in Long-Term Care Communities

Residents of long-term care communities, such as assisted living facilities and nursing homes, retain the right to vote as long as they have the capacity to do so. Many of our clients in facilities request that their power of attorney act on their behalf to pay bills and make medical decisions.  However, authority as a POA does not give you the right to vote on behalf of someone else.  Here are the key points regarding voting rights and the impact of an activated Health Care Power of Attorney (HCPOA):

 

Capacity to Vote

  • Cognitive Ability: To vote, residents must have the cognitive ability to understand the voting process and make informed choices.
  • Assessment: There is no formal assessment required for voting; it is generally assumed that residents have the capacity to vote unless legally declared otherwise by a court.

Impact of Health Care Power of Attorney (HCPOA)

  • Activated HCPOA: Having an activated HCPOA does not automatically disqualify a resident from voting. An HCPOA typically grants authority to make healthcare decisions and does not impact the resident’s civil rights, including the right to vote.
  • Legal Competency: Unless a court has specifically ruled that an individual is legally incompetent to vote, they retain their voting rights, even with an activated HCPOA.

Practical Steps for Voting

  • Absentee Voting: Residents can utilize absentee ballots to ensure they can vote even if they are unable to physically go to the polling place. You can request an absentee ballot online using the MyVote Wisconsin website.

Advocacy and Resources

  • Ombudsman Support: Residents and their families can seek assistance from local Ombudsman programs to ensure that their voting rights are upheld and to address any potential barriers to voting.

Ensuring that residents in long-term care facilities can exercise their right to vote is essential for maintaining their autonomy and participation in the democratic process. For more detailed information, the Wisconsin Board of Aging and Long Term Care has prepared a detailed memo on the topic available here.

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Jon L. Fischer

Estate Planning and Elder Law Attorney at McCarty Law LLP
Jon focuses his practice on estate planning, probate matters, and Medicaid planning as he aims to help clients in their time of need.