Can You Vote as a Guardian or Agent Under a Power Of Attorney?

People often ask: "I am agent under my father's Power of Attorney. I know exactly how he would want to vote at the next election, may I vote for him?"

The simple answer to this question is "no." An agent's authority under a power of attorney is defined by statute in Title 20, Chapter 56, and voting in a government election is not one of those powers.. The power to vote in corporate elections is often granted, but it does not extend to governmental elections. Neither may a guardian vote for their ward.

However, you may transport your ward to the polls so they can vote. If they cannot travel to the polls, you may order an absentee ballot for them.

Another different, but related question, is whether someone who has been found incompetent after an adjudication in a guardianship proceeding, or pursuant to the terms of a springing power of attorney, may vote.

The law says that everyone is deemed to be competent until there has been a finding of incompetency. Someone who is demented,yet not formally determined to be incompetent, is still presumed competent. Furthermore, the distinction between competency and incompetency is not static; many people drift between the two depending on the time of day or other environmental conditions.

Even as to persons found to be incompetent, there is a constitutional right to vote. Because the right to vote is fundamental and preserves other basic civil and political rights, it has protections under the Due Process Clause of our nation's constitution. A state must provide an adequate notice and hearing to an incapacitated person before revoking the right to vote. While most states have laws that determine whether an incapacitated person may vote, Pennsylvania is one of the thirteen states that are completely silent on the issue.

This topic was addressed and the current law exhaustively reviewed in the most recent Journal of the National Academy of  Elder Law Attorneys. If you would like a copy of the article, please contact our office.

Finally, the last date to obtain an absentee ballot in Pennsylvania for the upcoming election in November, is October 28, 2014.