Guardianship and Voting: How to Keep the Right to Vote in a Guardianship Case
Guide for people with disabilities on keeping the right to vote when a court is deciding whether to give them a guardian.
The capacity to vote is one of the issues a court may consider when deciding whether to appoint a guardian for a person alleged to be incompetent. This guide explains steps that may help protect the right to vote when a court is considering appointing a guardian.
Key Points About Wisconsin's Guardianship Law
Wisconsin has a limited guardianship system. A person does not automatically lose all of their rights when a guardian is appointed. A right is removed only if the court specifically decides to remove it. A person may lose some rights while keeping others.
For example, a person might lose the right to make certain health care decisions but keep the right to vote.
Wisconsin has two types of guardians:
A guardian of the person is appointed by the court to make decisions about specific personal matters, such as health care or where the person lives.
A guardian of the estate is appointed by the court to make decisions about specific financial matters, such as managing money or property.
The type of guardian appointed and the guardian's authority depend on which decisions the court determines the person is incapable of making. A court may appoint a guardian of the person, a guardian of the estate, or both.
The capacity to vote is not reviewed when only a guardian of the estate is being considered. If a person only has a guardian of the estate, the right to vote cannot be removed as part of that appointment.
The capacity to vote may be reviewed when a guardian of the person is being considered. However, appointing a guardian of the person does not automatically remove the right to vote. The court must specifically order that the right to vote is removed.
Only a court can take away a person's right to vote. An election official, guardian, family member, power of attorney, caregiver, service provider, or medical provider cannot independently take away that right.
How to Keep the Right to Vote
Consider Alternatives to Guardianship
When a petition to appoint a guardian of the person is filed, voting is one of the rights the court may consider. The court may remove the right to vote even if the petitioner or proposed ward did not ask for it to be removed.
Consider less restrictive alternatives before pursuing guardianship when appropriate. Alternatives may include Powers of Attorney for Health Care or Finances and Supported Decision-Making Agreements. These alternatives do not place voting rights at risk in the same way as a guardianship proceeding.
For more information, visit the Wisconsin Board for People with Developmental Disabilities' Supported Decision-Making resources.
Protect the Right to Vote if Guardianship Is the Best Option
If a guardian of the person is the best option to protect the individual's health and safety, do not overlook voting rights during the guardianship proceeding. It is generally easier to protect the right to vote during the initial guardianship case than to return to court later to ask for the right to be restored.
Do Not Request Removal of the Right to Vote if It Is Not Necessary
A guardianship case begins when a petition is filed with the court. The petition includes checkboxes identifying the rights the petitioner is asking the court to remove.
The petitioner does not have to check every box. If the petitioner believes the proposed ward is capable of voting, the petitioner should not check the box requesting removal of the right to vote.
Understand the Legal Standard for Voting
The legal standard for removing the right to vote is different from the standard for appointing a guardian of the person. Wisconsin law provides that the right to vote may be removed when there is clear and convincing evidence that the person is "incapable of understanding the objective of the elective process."
What Does "Understanding the Objective of the Elective Process" Mean?
The phrase can be understood by looking at its individual terms:
"Objective" means an aim, goal, or end.
"Elective" relates to an election.
"Process" refers to a series of actions leading toward an end.
In practical terms, understanding the objective of the elective process means understanding the purpose of an election and that voting allows a voter to choose the candidate the voter wants to win.
If a person understands the purpose of an election, that understanding can be important evidence supporting the person's right to continue voting.
Be Prepared to Answer Questions About Voting
The proposed ward should be prepared to explain their understanding of voting and elections.
Questions may include:
Why are there elections?
Why do you want to vote?
What is the purpose of voting?
How do people vote?
How do you decide who to vote for?
What offices are on the ballot?
What experience do you have with voting, such as voting in school clubs?
Do you have a photo ID and proof of residence?
The answers do not need to be complicated. What matters is whether the person can communicate an understanding of the purpose of elections and voting.
The person should not be required to disclose which candidate they intend to vote for.
Understand the Role of the Guardian ad Litem and Examiner
The court appoints a Guardian ad Litem (GAL) and may involve an examining physician or psychologist in the guardianship process. These professionals do not serve as the proposed ward's attorney. Their opinions about the person's capacity may influence the court's decision.
The proposed ward and their supporters can prepare for these discussions by:
Helping the proposed ward prepare to explain their understanding of voting and elections.
Sharing information about why the person should retain the right to vote.
Making sure the applicable legal standard for removing voting rights is considered separately from the standard for appointing a guardian of the person.
Even if the GAL, physician, or psychologist believes the person should not retain voting rights, the proposed ward and their advocate may still present evidence to the court supporting the person's right to vote.
Understand the Rights of the Proposed Ward
The proposed ward has the right to present information supporting their ability to vote, even when the petitioner, GAL, physician, or psychologist believes the right should be removed.
Consider Hiring an Attorney
The proposed ward has the right to hire an attorney to advocate for what they want in the guardianship proceeding. An attorney may advocate for dismissal of the case or for the proposed ward to retain specific rights, including the right to vote.
If the proposed ward cannot afford an attorney, ask the court about the availability of court-appointed representation.
Free legal assistance may also be available through legal clinics or pro bono programs.
In Milwaukee County, learn about assistance available through the Marquette Volunteer Legal Clinic.
In Kenosha and Racine Counties, learn about legal assistance available through the ELCA Outreach Center.
Ask for Accommodations if Needed
The proposed ward may request accommodations needed to participate in the guardianship proceeding, including discussions with the GAL or examiner and participation in the court hearing.
Depending on the person's needs, accommodations might include communication supports, an augmentative or assistive communication device, a sign language interpreter, or accommodations related to attending the hearing.
Prepare for the Court Hearing
Before the hearing, the proposed ward should practice explaining why they should keep the right to vote and be prepared to answer questions about their understanding of voting and elections.
People who know the proposed ward, such as teachers, family members, friends, caregivers, or medical providers, may also be able to provide letters or testimony about the person's ability to understand the voting process.
Key Points to Remember
Consider alternatives to guardianship.
If guardianship is necessary, do not request removal of voting rights unless there is a reason to do so.
Understand the legal standard for removing the right to vote.
Be prepared to answer questions about voting and elections.
Understand the roles of the GAL and examining physician or psychologist.
Understand the rights of the proposed ward.
Consider legal representation.
Request accommodations when needed.
Prepare for the court hearing.
More Information and Resources
Disability Rights Wisconsin: Guardianship and Voting Resources
Wisconsin Disability Vote Coalition
Wisconsin Guardianship Support Center - Information and assistance related to adult guardianship, protective placement, and advance directives. Toll-free helpline: (855) 409-9410. Email: guardian@gwaar.org.
Voting Questions
Contact the Disability Rights Wisconsin Voter Hotline year-round:
Phone: 844-DIS-VOTE (844-347-8683)
Email: info@disabilityvote.org
Acknowledgment
This project was supported by funds received under the Help America Vote Act (HAVA) to provide education, training, and assistance to individuals with disabilities and promote participation in the electoral process.
Disclaimer
This publication is provided for educational purposes only. The information is general in nature and is not intended as legal advice. Legal advice requires consideration of the specific facts and circumstances of an individual's situation. Laws, regulations, and court decisions may also change. Consult a legal professional for assistance with individual legal issues.
Reproduction of this brochure is permitted and encouraged as long as no modifications are made and credit to Disability Rights Wisconsin is retained.
