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The Right To Vote For Individuals with Disabilities

By Stacy M. Sadove, Esq.

The last day to register to vote for the New York Presidential Primary Election (held on Tuesday, April 19) is March 25, 2016. With this date quickly approaching, many parents of adult children with special needs question whether their child will have the opportunity to vote when they turn 18. In the last election cycle, 15.6 million people with disabilities voted, according to a 2013 Research Alliance for Accessible Voting survey report.  Parents who pursue a guardianship on behalf of their child, may wonder if their child will still have the ability to vote if they move forward with a necessary guardianship to assist their child in making decisions, both medical and financial.  Key issues that arise regarding voting are competence, legal guardianship and voter assistance.  While a guardian has authority to protect the interests and rights of the person with the disability and to make decisions on his or her behalf, certain fundamental rights are not taken away from a person with a disability even though a legal guardian has been appointed, if that person is not deemed incompetent.

Littman KrooksN.Y. ELEC. LAW § 5-106(6) states that no person who has been adjudged incompetent may vote in New York. The key word here is incompetent.  New  York’s Article 17A guardianship law is silent as to declaring a person incompetent. Rather, they are determined as a person with a developmental or intellectual disability in need of a guardian. Moreover, Pursuant to N.Y. MENT. HYG. LAW § 33.01, receipt of services for mental disability shall not deprive persons of the right to register and vote if otherwise qualified. It’s important to note there is no legal test for registering and voting but the individual must understand the nature of voting and decisions to be made. Similarly, persons who are not adjudicated incapacitated, but rather consent to being in need of a guardian under New  York Article 81 guardianship law, may also engage in voting so long as they meet the other requirements mandated by the law.

Speak to your child or family member with a disability about their right to vote and be sure to assist in registering in time to allow that person to vote come election day. Deciding if a guardianship is appropriate for you loved one is a difficult process, and there many decisions to be made with respect to the rights of an individual, and how a guardianship will effect those rights, such as voting. The lawyers at Littman Krooks LLP will happily assist you in providing answers to difficult questions with respect to commencing a guardianship proceeding and determining a plan of action that best suits you and your loved one.

(The last day to register to vote for general election should be postmarked by October 14, 2016 and received by October 19, 2016; or handed in-person by October 14, 2016).

Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.


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