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Let's say that a citizen of the United States is in declining mental health and is not of sound mind or body to care for their own affairs, so the family sought Power of Attorney and received it. Let's also say that before an election and before deteriorating health, they had applied for an option to have a mail in ballot for the general election in November.

If the individual with Power of Attorney receives the mail in ballot, would they be participating in a type of voter fraud by filling out the ballot on behalf of the person, then presenting the ballot to the person for their signature, assuming that person is capable of physically providing their signature, however incapable of mentally comprehending the voting decision?

I know that the individual with Power of Attorney has the right to sign for legal documents on behalf of the person as they should be doing this with their best interest at heart, however is there an explicit exclusion for election ballots? If not then how could one account or check for election fraud?

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    In voting, this is called "proxy", not "power of attorney". "Voting by proxy".
    – Ron Beyer
    Sep 14, 2020 at 13:07
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    @RonBeyer but one would expect the term "proxy" to be employed in cases where the voting system has explicit provision for votes to be cast by others on a voter's behalf, usually with that voter's explicit authorization, usually for the purpose of a specific election. This question concerns whether a general grant of power of attorney extends to an election where there may be (or almost certainly is) no such system and where, in any event, there is no such specific authorization. But if the voter signs the ballot, I suppose neither power of attorney nor proxy is implicated.
    – phoog
    Sep 14, 2020 at 13:43
  • @phoog I don't believe PoA includes the ability to vote by proxy in a public election (you can in elections for private businesses, like shareholders voting). In Wisconsin though, you can fill out a vote for an individual provided that the elector is the one making the decision. I'm not sure about Federal elections though...
    – Ron Beyer
    Sep 14, 2020 at 14:34
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    In case I'm misunderstanding, are you talking about the POA filling in the ballot (1) according to contemporaneous instructions from the voter, or (2) based on the the POA's best guesses as to what the voter would select?
    – bdb484
    Sep 14, 2020 at 16:02
  • @bdb484: I think the latter. OP writes "however incapable of mentally comprehending the voting decision" - implying it is about voting for someone who is mentally incapable of making a decision.
    – sleske
    Sep 15, 2020 at 12:00

8 Answers 8

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No.

Because these laws are controlled by the states, there could theoretically be 50 different answers, but every state I've looked at so far (Arizona, Florida, Massachusetts, New Hampshire, Wisconsin) forbids using power of attorney to cast votes in a public election. In many states, a POA may not even request an absentee ballot for a voter.

The general principle is that the POA can undertake any legal act the agent could undertake, except those "so peculiarly personal that their performance cannot be delegated." States generally treat voting as peculiarly personal.

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    You can add Washington to the list: the declaration you sign on a mail-in ballot explicitly states "power of attorney does not apply".
    – Mark
    Sep 14, 2020 at 21:55
  • Is this essentially "no, by special exemption from the general rule" or is there a general rule which is clearer about peculiar personalities?
    – fectin
    Sep 15, 2020 at 23:53
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    I've downvoted this answer because it fails to discuss whether the acts described in the body of the question actually constitute "using power of attorney to cast votes in a public election," which they don't.
    – phoog
    Sep 16, 2020 at 3:46
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    @phoog Thanks for letting us know!
    – bdb484
    Sep 16, 2020 at 4:38
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    You're welcome. Unexplained downvotes are annoying.
    – phoog
    Sep 16, 2020 at 14:57
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No

Partly because you are conflating some concepts which while conceptually related are legally different things:

  • Power of Attorney - allows another person (the attorney) to deal with the assets of another person.
  • Proxy - allows another person (the proxy) to exercise the vote of another person. Either as instructed or at the proxy's discretion.
  • Guardianship - allows another person (the guardian) to make medical, lifestyle or legal decisions on behalf of another person.

So, to rephrase the question: Does a Proxy extend to voting in an election?

Depends on the election.

For elections in companies, clubs, housing associations etc. the answer is usually yes. The rules of that organisation will set out how proxies must be set up and used. Usually, a legal representative (an attorney if the right to vote is asset-based, a guardian if it isn't), can execute a proxy form and appoint themselves or somebody else as the proxy.

Proxy voting in the United States has been legal in the past but is currently not in any State or Territory for state and national elections. It is prohibited in some state constitutions and so would require a constitution amendment to allow in those but in other it could be made legal again by legislative action.

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    Not as often as you think. Most organizations use Robert's Rules of Order, which opposes proxies strongly. It says if your Bylaws do not explicitly permit proxies, and Bylaws specify Robert's Rules of Order for your parliamentary procedure, that is the same as your Bylaws prohibiting proxies. Lots of orgs have Robert's Rules and do not realize by doing so they outlawed proxies.
    – Harper - Reinstate Monica
    Sep 15, 2020 at 1:21
  • I don't think there's any conflation. POA is quite a bit broader than you're describing here, at least in the United States, which is where OP is asking about.
    – bdb484
    Sep 15, 2020 at 6:16
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    I've downvoted this answer because it fails to discuss whether the acts described in the body of the question actually constitute "exercising the vote of another person."
    – phoog
    Sep 16, 2020 at 3:47
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The search might be restricted to Colorado, Idaho, Illinois, Indiana, Kansas, Maine, Michigan, New Hampshire, North Carolina, Pennsylvania and Vermont, since in other states, mentally incompetent people can have their right to vote stripped from them (but it is not automatic). In Ohio, ORC 3505.24 says that

any elector who does both of the following may be accompanied in the voting booth and aided by any person of the elector's choice, other than the elector's employer, an agent of the elector's employer, or an officer or agent of the elector's union, if any:

(A) Appears to vote on the day of an election or appears at the office of the board of elections to cast absent voter's ballots in person; and

(B) Declares to the presiding judge of elections or to the election official who is accepting applications to cast absent voter's ballots in person that the elector is unable to mark the elector's ballot by reason of blindness, disability, or illiteracy.

The elector also may request and receive assistance in the marking of the elector's ballot from two election officials of different political parties. Any person providing assistance in the marking of an elector's ballot under this section shall thereafter provide no information in regard to the marking of that ballot.

Any election official may require a declaration of inability to be made by the elector under oath before the election official. Assistance shall not be rendered for causes other than those specified in this section, and no candidate whose name appears on the ballot shall assist any person in marking that person's ballot.

ORC 3509.08 governs disability and absentee voting. A voter may apply for absentee voting which allows for assistance in voting if they are confined or physically disabled, but not mentally disabled. A mentally disabled person must show up, though they can vote curbside. It is not clear how coherent the voter's required declarations have to be.

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    I've downvoted this answer because it quotes a lot of material concerning in-person voting, which is marginally relevant, while glossing over the statutory section that concerns absentee voting, which is very relevant, and because I could not find any references to mental disability when followed the link to 3509.08.
    – phoog
    Sep 16, 2020 at 3:52
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The situation in is similar to the United States:

Power of Attorney does not extend to voting in a political election.

Some details:

Under German law, the equivalent to power of attorney due to mental health concerns would be a Betreuung (if it applies to all affairs) or a Pflegschaft (only for some areas, such as only for representation in a specific court case).

A Pflegschaft is, as mentioned, only for specific areas where (such as representation in a court case, health decisions, or financial decisions) and simply does not exist for voting in elections.

For a Betreuung, which is typically granted for individuals who have severe mental disabilities or suffer from dementia (and must be ordered by a judge):

Until 2019, someone under a complete Betreuung lost their right to vote. Since this was considered discriminatory towards people with disabilities, this restriction was lifted in 2019. Since then, the law only says (after stipulating that in general a vote must be cast by the voter personally):

(5) Ein Wahlberechtigter, der des Lesens unkundig oder wegen einer Behinderung an der Abgabe seiner Stimme gehindert ist, kann sich hierzu der Hilfe einer anderen Person bedienen. Die Hilfeleistung ist auf technische Hilfe bei der Kundgabe einer vom Wahlberechtigten selbst getroffenen und geäußerten Wahlentscheidung beschränkt. Unzulässig ist eine Hilfeleistung, die unter missbräuchlicher Einflussnahme erfolgt, die selbstbestimmte Willensbildung oder Entscheidung des Wahlberechtigten ersetzt oder verändert oder wenn ein Interessenkonflikt der Hilfsperson besteht.

Bundeswahlgesetz - § 14 Ausübung des Wahlrechts

Translation (no guarantees, legal German is hard to translate):

(5) A voter who cannot read or cannot cast a vote due to disability may use another person's help. The help is limited to technical help to declare a voting decision made and communicated by the voter themselves. Help is not permissible if it uses illegal influence, if it replaces or changes the decision process or the decision of the voter, or if there is a conflict of interest for the person helping.

This makes it abundantly clear that only the person eligible to vote may make the actual voting decision.

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The acts you describe in the body of the question do not fit with the acts implied by its title.

Does Power of Attorney extend to voting in an election?

This implies that the attorney-in-fact is contemplating signing the ballot envelope on behalf of the voter. The power of attorney grants the attorney-in-fact the power to act on behalf of the principal.

would they be participating in a type of voter fraud by filling out the ballot on behalf of the person, then presenting the ballot to the person for their signature?

Here, because the principal is signing the ballot, the principal is purportedly acting for himself or herself. The power of attorney is not implicated. Anyone can prepare documents and present them to someone else for a signature. Whether doing so is lawful or not in any case does not depend on power of attorney. Rather, the question would be whether it is prohibited to induce someone to sign a legal document when the person is not competent to understand the document, or to assist someone in voting despite the person's mental incapacity. In some states, people with mental incapacity are not qualified to vote, so if this case is in one of those states it would be necessary to establish whether that disqualification applies to the person.

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  • Downvoter, please explain. Is it because of my statement that the power of attorney isn't relevant? It isn't: a person who has power of attorney has no greater or lesser right to encourage someone to sign a document. It allows a person to sign a document on someone else's behalf, but that is not what the question is about.
    – phoog
    Sep 15, 2020 at 23:39
  • The POA is pretty obviously relevant, as the OP wants to know whether it relieves the agent of criminal liability. You have rejected the premise of the question, which is bound to provide an unhelpful answer. Note the number of upvotes.
    – bdb484
    Sep 16, 2020 at 2:00
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    @bdb484 the POA is as relevant to the legality of the acts contemplated in the question as is the fact of either party being a licensed driver or holding a library card. Of course the POA is relevant to the question, since that's what the question is about, but it's analogous to a question like "does a street musician's license extend to whistling while walking down the street?" Anyone can do that. I haven't rejected the premise of the question; I've just pointed out that the contemplated act is one that does not require authorization, which is precisely why the other answers are misleading.
    – phoog
    Sep 16, 2020 at 3:39
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    @bdb484 consider the question "does power of attorney extend to writing checks?" where the body of the question describes the attorney-in-fact preparing checks for the account holder to sign. Even though power of attorney does extend to writing checks, answering "yes" to that question is misleading because anyone can prepare checks for the account holder to sign.
    – phoog
    Sep 16, 2020 at 3:41
  • And that's where you miss the point. Given the title, it's pretty obvious that the important part of the question is the legality of "filling out the ballot on behalf of the person." You've instead homed in on "presenting the ballot to the person for their signature," which is clearly not the point.
    – bdb484
    Sep 17, 2020 at 0:44
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"Sound of mind" has been covered, but re: "sound of body":

I voted in person but early in the 2016 election in the state of Virginia due to a physical injury and I had someone else with me in line helping me. The election officials offered me a second form for my helper to fill out if I needed my helper to physically help me with voting. I didn't read the other form or use my helper while actually voting, but the explanation of the form was that my helper would be agreeing to only help as I told them to, and not to do anything based on their own opinions or feelings. So if I said push the button for X, they could push the button for X, but they couldn't push the button for Y even if they really wanted to.

The procedure for absentee (by mail) ballot in Virginia is similar. You need to complete a "Request for Assistance" before someone physically helps you with marking your ballot and there are other details, e.g. if the person who is voting (not the helper) is blind, that needs to be indicated.

Even returning the ballot has special procedures and limits on who can do that for you in many states.

(Btw, I'm fine now, it was just bad timing on throwing my back out.)

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I don't think so. I'm pretty sure that POA only extends to financial and legal affairs, so that would not extend to voting. For example: in Arizona, Title 16-102 states

A power of attorney or other form of proxy is not valid for use by a person in any procedure or transaction concerning elections, including voter registration, petition circulation or signature, voter registration cancellation, early ballot requests or voting another person's ballot.

Therefore, it directly prohibits that.
I'm pretty sure that other states have similar laws about it.

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In , this is explicitly excluded in the Mental Capacity Act 2005 which established lasting power of attorney. Section 29 states:

  1. 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.
  2. “Referendum” has the same meaning as in section 101 of the Political Parties, Elections and Referendums Act 2000 (c. 41).
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