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Experts Urge Protection of Voting Rights in Nursing Homes

  • September 15th, 2004

Have you ever considered how nursing home residents get to vote, and what happens to their right to vote if they are demented?

The reality is that nursing home residents have a right to vote, although they are vulnerable to fraud by political groups seeking to direct their votes, and they may also be unfairly prevented from voting even if still competent to do so because they are in the early stages of dementia. Nevertheless, fewer than half the states have absentee voting procedures that specifically address the needs of nursing home residents.

Writing in the latest issue of the Journal of the American Medical Association (JAMA), a group of geriatric and legal experts recommends that election officials take steps to prevent political groups from taking advantage of institutionalized voters and to protect the voting rights of patients who are in the early stages of dementia but who are still competent,

The writers warn that voting by people with Alzheimer's disease and other forms of dementia is "an emerging policy problem." About 4.5 million Americans have dementia, and by 2050 the figure is expected to be 15 million, according to The New York Times. At the same time, voting rates are highest among people 65 to 74, and age is the main risk factor for dementia. About 1.6 million Americans are in nursing homes, and another million are in assisted living facilities.

One solution the experts propose is for election officials to supervise voting in nursing homes and other long-term-care facilities and give brief mental tests to residents with dementia to determine whether they are competent to vote. The experts also urge that laws regarding the competence to vote, which now vary by state, be changed to conform to a 2001 court decision that helped define a person's "capacity to vote." In that case, a U.S. District Court in Maine ruled that three women under guardianship because they were mentally ill had been unconstitutionally deprived of their right to vote. Doe v. Rowe (U.S. Dist. Ct., Me., No. 00-CV-206-B-S, Aug. 9, 2001).

While 23 states have laws that address voting by people in nursing homes, the other 27 states do not and may be more vulnerable to voting fraud, says Charles Sabatino, assistant director of the American Bar Association's Commission on Law and Aging. The Fall 2004 issue of the Commission's journal BIFOCAL is devoted to the voting rights of nursing home residents and those under guardianship. It also contains a chart giving voting procedures for nursing home residents in each state. A link to this issue of BIFOCAL can be found on the Commission's home page, or download it in PDF format by clicking on: http://www.abanet.org/aging/261.pdf

For an abstract of the JAMA article and information on obtaining the full text, go to: http://jama.ama-assn.org/cgi/content/abstract/292/11/1345

For an article on the experts' recommendations in The New York Times, go to: http://www.nytimes.com/2004/09/15/politics/campaign/15dement.html. (Free registration required and article may no longer be available free of charge.)

Local Elder Law Attorneys in Ashburn, VA

Jean Ball

Hale Ball Carlson Baumgartner Murphy PLC
Fairfax, VA

Mindy Felinton

Felinton Elder Law & Estate Planning Centers
Rockville, MD

Loretta Williams

Hale Ball Carlson Baumgartner Murphy PLC
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Last Modified: 09/15/2004

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