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Published On: December 3, 2019 | Blog | 0 comments

Do you need mental capacity to vote?

No person should be prevented from voting in the upcoming UK General Election based on capacity related grounds. A person can lack mental capacity and still exercise their right to vote.

Section 73 of the Electoral Administration Act 2006 abolished any common law restriction that a person was unable to register to vote due to a lack of legal capacity.

The Electoral Commission’s guidance makes it explicitly clear that:

“A lack of mental capacity is not a legal incapacity to vote: persons who meet the other registration qualifications are eligible for registration regardless of their mental capacity.”

The guidance also sets out that the decision to vote and who for at an election must be made by the person who lacks capacity and not by any other person on their behalf.  No person has a right to prevent a person from voting on capacity related grounds.

What does the Mental Capacity Act 2005 say about voting rights?

The Mental Capacity Act 2005 provides the framework for making decisions on behalf of people who lack mental capacity. These can be decisions about day-to-day matters such as how much money someone should spend on a weekly food shop, to more significant life events such as whether a person should move into a care home.  However, there are certain decisions set out in section 27-29 and 62 of the Act which can never be made on behalf of someone who lacks capacity because they are either so personal to the individual; or governed by other legislation.

Voting rights fall under this bracket with section 29 stating that:

“Nothing in this Act permits a decision on voting at an election for any public office, or at a referendum, to be made on behalf of a person.”

This means that no person can vote on behalf of someone who lacks capacity. A family member or carer cannot vote on someone’s behalf, nor can an attorney or deputy decide who to vote for on someone’s behalf. No medical practitioner should assess a person’s mental capacity to vote because the Mental Capacity Act 2005 does not apply to voting rights.

It is up to the individual to decide whether or not they want to vote. If they are expressing a wish to vote then it is important that the vulnerable person is supported to take part in any vote and do not lose their right to vote.

Supporting a person without capacity to vote

Although a carer, deputy or welfare attorney cannot decide who to vote for on behalf of a person without capacity, they can help the person with the registration process.

There is more scrutiny now on residential care homes and services that fail to accurately return information regarding who is a resident for the electoral register. You can only be deprived of being put on electoral register if you are a detained convicted criminal.

Once registered, a person without capacity can vote at the polling station or by postal vote. A person without capacity cannot however appoint a proxy as the Electoral Commission requires a person to have mental capacity to do this.

A person who lacks capacity may face a number of barriers when it comes to voting at the upcoming General Election. It may be that the person needs a companion to accompany them or simply a reminder to vote on the right date, or get to the correct location.

The person who lacks capacity should be supported to ensure that they have the information and support they require to exercise their right to vote. However, the person must choose who to vote for themselves. This decision cannot be made on their behalf, even by an appointed Deputy or attorney and  when supporting an individual in this manner, care should be taken not to exercise influence or encourage an individual to vote for one party over another.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

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