Far too frequently individuals and their family members find themselves in a situation where they need the authority to step into the shoes of a friend, family or loved one to make critical healthcare and financial decisions on their behalf. Without this authority, individuals can find themselves in precarious situations where they are unable to advocate on behalf of a family member or pay bills or other expenses essential for that individual’s well-being. A proper estate plan that implements Healthcare and Financial Powers of Attorney can alleviate this stress; however, often an individual fails to establish an estate plan, or lacked the testamentary capacity necessary to execute a Power of Attorney in the first place. In those situations, a Guardianship may be the proper tool to enable another to act.
What is a Guardianship under Pennsylvania Law
A Guardianship is a means by which a substitute decision-maker can act on behalf of an adult who lacks capacity to make some decisions. Only a court, after a legal proceeding, may judge an individual to be incapacitated and appoint a guardian for him or her. The Guardian then assumes the care and protection of the person for whom they are appointed as Guardian. The person over whom a Guardian is appointed is referred to as a “Ward,” or incapacitated person. After their appointment, the Guardian takes all legal decisions on behalf of the person and the property of the Ward. This includes decisions concerning the Ward’s support, health and education, among other critical decisions. The Guardian is generally mandated to consult with the Ward regarding these decisions and assist the Ward to develop self-reliance and independence to the greatest extent possible. Yet because of the broad authority given to a Guardian, questions often arise regarding what decisions can and should be made by the Ward themselves. One particular question that comes up often every two to four years is whether the Ward is legally able to register and vote in primaries and general elections. The short answer is a lawyerly one: it depends.
Voting Rights under Guardianships
Whether or not a Ward is able to vote will depend on the state where the individual resides. Many states such as Arizona, Louisiana, South Carolina, and Virginia have enacted statutes that outright forbid someone appointed a Guardian from voting. Other states like Florida, California and Oklahoma have laws expressly requiring the Judge appointing the Guardian to decide at the hearing whether the alleged incapacitated person can communicate and participate in the voting process. Notably four states preclude “idiots” from voting. Depending on your political views that prohibition may or may not be working.
In Pennsylvania, there is no statutory disqualification that prevents
a Ward from voting. Accordingly, there is a presumption that the
incapacitated person has the right to vote unless the Court Order
appointing the Guardian expressly takes that right away. Assuming the
Ward can communicate and wants to exercise their franchise, it is
important to include language in the Guardian Order expressly stating
the Guardianship shall not affect or terminate an incapacitated person’s
ability to vote. With that language established, voting registration
offices and polling places will be able to work with the Guardian and
enable you to exercise one of the most important rights in American