Can People with Dementia Exercise their Right to Vote?

When it comes to the upcoming election, one political statement we can all agree on is that every U.S. citizen should exercise his or her right to vote on November 3. But does that include people living with Alzheimer’s or another form of dementia? Legally, the answer is yes. While the pandemic is expected to present unprecedented logistical obstacles, especially for those living in nursing homes, a diagnosis of dementia alone does not legally preclude someone from voting.

Nearly 6 million people in the US have some form of dementia, the US Centers for Disease Control and Prevention (CDC) estimates, and they represent almost 2.5% of the 253.8 million US residents who are of voting age. Voters aged 60 years or older are more likely to vote than younger age groups, according to the United States Elections Project; and the majority of people who suffer from dementia fall into that demographic.  

Voting and Functional Capacity

In 2003, a group of geriatricians, gerontologists, Alzheimer’s researchers, Constitutional scholars, and philosophers gathered together to explore questions related to dementia and voting. The group concluded that no valid test exists to determine when a person reaches the point of incapacity to vote. However, the group posed two conditions that should be present for a person to vote: 1) the voter understands what he or she is doing, such as choosing between candidates, and 2) the voter understands that the person who wins received the most votes and takes office. “Functional capacity should be the only determining factor,” Dr. Jason Karlawish, co-director of the Penn Memory Center at the University of Pennsylvania (my alma mater), said in an interview. “If people with dementia need help reading or marking a ballot, they should get it. Only those unable to communicate their ballot choices after receiving that assistance can no longer vote,” he said.

Voting During a Pandemic

Although people with dementia have the right to vote, they might find it particularly hard to do so in the 2020 general election. Even in a typical year, people with dementia living in the community may need help remembering the election date, getting to a polling place, or completing a ballot. This year, there’s enhanced confusion about how to vote while protecting yourself from COVID-19.  Here are some tips for seniors in nursing homes (with or without dementia) when it comes to voting in this year’s election:

State procedures: A number of states have procedures in place for election officials to assist nursing home residents with voting. Although many nursing homes still limit visitors because of the pandemic, the Centers for Medicare & Medicaid Services (CMS) on September 17 issued a new guidance to facilitate safe visitation in nursing homes. But at least 1 state, Wisconsin, has decided not to send “special voting deputies” to assist nursing home and care facilities’ residents with casting their ballot in the 2020 general election. In lieu of the special voting deputies, the Wisconsin Elections Commission has recommended that nursing home residents vote by mail, with the help of administrators and staff if necessary.
Help from family members: If your loved one wants to vote, family members should take the initiative to make sure they can. Call the nurse that they work with, or the administrator, and tell them that you loved one lives there, and he or she has always voted, and he or she wants to vote this year.
Determining if the person wants to vote: If you are unsure if your loved one wants to vote,the Alzheimer’s Association suggests considering these factors: Was the person politically active in the past? Was voting important to the person? Can the person explain his or her opinion in a way that exhibits an understanding and comprehension of the question and decision? Has the person expressed a desire to vote?
Mail-in ballots: For many seniors, including those without cognitive impairment, a mail-in ballot is a good option. If mobility is an issue, a mail-in ballot avoids a trip to the polls. For those who have impaired hearing or vision, or who might have difficulty reading a ballot, a mail-in ballot allows time to enlist assistance to ensure the ballot is correctly understood and completed.  If you’re assisting a loved one with dementia with completing a mail-in ballot, the Alzheimer’s Association suggests asking the person one or two questions at a time, so as not to overwhelm. Explain questions and ask the for the person’s decision multiple times to see if you get the same answer. Even though the person may not recall being asked before, he or she is likely to answer the same way if there’s a clear preference. Be supportive but avoid helping out too much with filling out the ballot. There’s still time to register and to obtain an absentee ballot in most states, including Virginia, Maryland, and DC. Contact your local election commission if you have any questions about his or her eligibility.

The Issue of Voting With Dementia Will Continue to Grow in Significance

Questions about the voting rights of people with dementia are likely to grow in significance as the population ages and more and more people are living with dementia. But the decision is not just a legal one; it’s also an ethical one. Ultimately, it’s up to the caregiver or a family member to determine whether a person can formulate a voting decision.

Resources About Voting and Dementia

Last month, the American Bar Association and the University of Pennsylvania’s Penn Memory Center published a new guide for helping voters who have cognitive impairments, including dementia. The American Bar Association also published an explanation of these rights, called “Defining and Assessing Capacity to Vote: The Effect of Mental Impairment on the Rights of Voters,” specifically addressing people with cognitive disabilities as well as mental ones. There is also another article, called “Keeping the ‘Mentally Incompetent’ From Voting” that addresses the question.

Do You Have a Loved One with Dementia?

Persons with dementia and their families face special legal and financial needs. At the Farr Law Firm, we are dedicated to easing the financial and emotional burden on those suffering from dementia and their loved ones. For clients diagnosed with dementia who are still of sound mind, we typically prepare a general durable power of attorney and our comprehensive and proprietary 4-Needs Advance Medical Directive® that contains detailed instructions when you are near death, and for after death, along with our proprietary Long-term Care Directive® to help our clients get the best possible care when they can no longer speak for themselves. We also help protect your loved ones’ hard-earned assets in order to maintain comfort, dignity, and quality of life by ensuring eligibility for critical government benefits such as Medicaid and Veterans Aid and Attendance. If you have a loved one who is suffering from any type of dementia, please call us to make an appointment for an initial consultation:

Elder Care Fairfax: 703-691-1888
Elder Care Fredericksburg: 540-479-1435
Elder Care Rockville: 301-519-8041
Elder Care DC: 202-587-2797

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About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.

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