Facts About Guardianship, Competency and Voting ....
In Wisconsin, anyone over age 18 is legally an adult and is presumed by law to be able to manage all personal and financial affairs, including the ability to vote. However, an adult may not have the right to vote if a court of law has taken that right away. Get details on competency, guardianship and the voting process as described in a document currently being developed by Disability Rights Wisconsin (formerly Wisconsin Coalition for Advocacy).
In Wisconsin, anyone over age 18 is legally an adult and is presumed by law to be able to manage all personal and financial affairs, including the ability to vote. However, an adult may not have the right to vote if a court of law has taken that right away. The competency and guardianship process is described below.
- An adult in Wisconsin must be found by a court to be "incompetent" in order to be excluded from the right to vote.
- A person may be found to be incapable of understanding the objectives of the elective process even though s/he has not been found to be incompetent and in need of a guardian. Prior to this finding, there must be a court proceeding which follows the legal requirements of an incompetence proceeding.
- Thus, there must be a report by a psychologist or physician about the person's mental capacity, there must be a guardian ad ltem appointed to represent the best interests of the person, and there must be a full due process hearing before the court.
- Once a person is found incompetent, the court may appoint a guardian of the estate and of the person. If an individual has full guardianship, they do not have the right to vote.
- A person may have a limited guardianship, which specifically enables him/her to retain the right to vote.
- If a person is ineligible to vote, this does not necessarily mean that they will be appointed a guardian or limited guardian.
- An individual may request that their guardianship be reviewed and that their right to vote be restored.
- Individuals who are found incompetent and in need of a guardian may also be ordered by a court to be protectively placed to the county human services agency. The county, in turn, would find the appropriate placement and/or services for the individual.
- Because a protective placement is a loss of personal freedom, the courts must review every placement every year. This is called a Watts hearing. During the annual Watts hearing a person's right to vote could be restored, if applicable.
Power of Attorney:
- Individuals who have an activated Power of Attorney for Health Care still have the right to vote as long as that right has not been taken away through a guardianship or an incompetence proceeding. A Power of Attorney can request an absentee ballot for an individual.
- Nobody has the right to vote instead of you or to tell you how you should vote--not even your guardian.
How can I find out if I have the right to vote?
If you are under a guardianship, you can find out whether or not you have the right to vote from your Determination and Order Form. You may ask your guardian or the Office of the Register in Probate (Probate Court) for a copy of your Determination and Order form. Each copy costs approximately $2.
You can also ask your attorney, or another person who has a signed release from you or your guardian, to request a copy of the Determination and Order Form.
You or another person requesting a copy of the Determination and Order Form should do so in the Probate Court where you receive services, or in the county that is paying for your services. If neither county has the form, try contacting the county in which your guardian resides.