Can someone who holds Court of Protection Deputyship vote on behalf of their nominated person?

[Satsuma]

I know a LPA does not confer this right, but wondered if Deputyship extended to it (both parties are already on the electoral roll and the Deputy has full welfare, personal and financial powers for his wife)?

The law says people with legal incapacity are permitted to vote*, but the chap I spoke to at the council repeatedly referred to LPAs and brushed off my equally repeated mentions that CoP Deputy was not the same thing as LPA - and at one stage quickly retracting his claim that people with dementia would not be allowed to vote when I asked exactly who was going to assess that! So I don't have a huge amount of confidence in his knowledge...

(Unfortunately a very crap council web page meant the correct forms were not able to be signed in time to assign proxy or postal votes for either person for this GE, although they maybe able to arrange that at a later stage.)

_____________________________________
* s73 Electoral Administration Act 2006 explicitly abolished "Any rule of the common law which provides that a person is subject to a legal incapacity to vote by reason of his mental state". The Electoral Commission's guidance on entitlement to register states:

"People with learning difficulties or mental health conditions

5.3 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 or lack thereof. Electoral Registration Officers should therefore ensure that persons with learning difficulties or mental health conditions are included in the register of electors."
____________________________________

MTIA
Sats

[Gengulphus]

I know a LPA does not confer this right, but wondered if Deputyship extended to it (both parties are already on the electoral roll and the Deputy has full welfare, personal and financial powers for his wife)?

I don't actually know, but it seems extraordinarily unlikely to me, for several reasons:

* According to https://www.gov.uk/become-deputy, there are two types of deputy:

"Property and financial affairs deputy

You’ll do things like pay the person’s bills or organise their pension.

Personal welfare deputy

You’ll make decisions about medical treatment and how someone is looked after."

Voting does not seem to me to fit either description, nor to be anything like the examples given of what each type of deputy does.

* Those two types mirror the two types of LPA, and the general impression I get is that they are meant to confer basically the same powers, with the main difference being that in the case of an attorney, the person who now lacks mental capacity has made a formal declaration in the past that they trust the person to do the job, while in the case of a deputy, they haven't. That suggests that being a deputy should generally be a bit more restrictive than being an attorney - the main extra restrictions appear to be essentially closer supervision by the Court of Protection (e.g. the need for a deputy to produce an annual report). In that context, it would be very strange if being a deputy granted the ability to do something that being an attorney didn't - and there could even be the absurdity of people who were already attorneys applying to be deputies as well in order to get the extra powers!

* According to https://www.gov.uk/become-deputy/when-youre-appointed:

"7. When you're appointed

You’ll be sent a ‘court order’ telling you what you can and can’t do as a deputy."

If you've got a court order saying that you can vote on behalf of the person who has lost mental capacity, then quite possibly you can (though there is also the possibility that the court has tried to do something beyond its powers...). Otherwise, the usual rule is that people cannot vote on behalf of other people, and you have no legal document authorising a breach of that usual rule.

* As regards the point you make about a lack of mental capacity not being a legal incapacity to vote, I think it's probably correct - but it's not about physical ability. If the person who has lost mental capacity can still go to the polling station and cast their vote in a legally correct fashion (which I'm fairly certain does not include being accompanied / supervised by anyone else, at least around the time of actually marking the ballot paper), then AFAIAA their vote counts. Likewise if they're able to cast a postal or proxy vote in a legally correct fashion - but I suspect that neither applying for a proxy/postal vote nor actually casting one is within the bounds of what either an attorney or a deputy can legally do on their behalf, again because it is neither a "property and financial" affair nor a "personal welfare" one.

Gengulphus

[PinkDalek]

I know a LPA does not confer this right, but wondered if Deputyship extended to it (both parties are already on the electoral roll and the Deputy has full welfare, personal and financial powers for his wife)? ...

This SD4 How to be a health and welfare deputy (web version) https://www.gov.uk/government/publicati ... s-a-deputy includes:

This guide is for deputies appointed by the Court of Protection to make health and welfare decisions for people who don’t have mental capacity to make such decisions themselves. ...

Decisions no one can make for the person

There are some very personal decisions that no one can make for the person. You can’t:

stop treatment aimed at keeping the person alive (‘life-sustaining treatment’)
decide who the person marries or divorces
prevent the person from having contact with people
decide who the person votes for in a public election

I haven't delved deeper.

[Urbandreamer]

This SD4 How to be a health and welfare deputy (web version) https://www.gov.uk/government/publicati ... s-a-deputy includes:

I hope that this is obvious, but this is a new power granted by recent legislation and NOT covered by the old "Enduring power of At.." which only covered financial matters.

I mention this as my wife and I have realised that we need to do something about these new rights and put in place the documentation.

Our old documents can not cover these new rights.

I also suspect that the court may not be empowered to grant these new rights to a financial deputy, but can not say for sure.

[carrie80]

(Unfortunately a very crap council web page meant the correct forms were not able to be signed in time to assign proxy or postal votes for either person for this GE, although they maybe able to arrange that at a later stage.)

Are you sure it's too late to apply? The postal vote deadline has passed, but I think they should have until 31 May to apply for a proxy vote:
https://www.yourvotematters.co.uk/how-d ... g-by-proxy

The form isn't explicit about mental capacity, but my reading is that the voter would need sufficient capacity to sign the form and express a voting preference to their proxy.

[Satsuma]

Many thanks to all who took the time to reply and unpick my confusion, it is greatly appreciated. I believe I can now rec my fellow Lemons so will do that too!

I did try searching online but had not found the document linked to by our resident expert in finding links PinkDalek

The issue is compounded because the gentleman's family are not local and it is they who he wishes to vote on his behalf (i.e. so it has to be postal), and there simply isn't enough time left for us to get the postal vote forms signed by all relevant parties and back to to the stupid local council before the tomorrow deadline. Had their website information actually been written by somebody competent, this would have been sorted already

We will arrange for postal votes in future.

Sats

[PinkDalek]

This SD4 How to be a health and welfare deputy (web version) https://www.gov.uk/government/publicati ... s-a-deputy includes:

I hope that this is obvious, but this is a new power granted by recent legislation and NOT covered by the old "Enduring power of At.." which only covered financial matters. ...

I tried to make it obvious that the link I provided was about Court of Protection Deputyship, being Satsuma's subject matter.

You are talking about the Health and Welfare Lasting Power of Attorney, which became effective in October 2007, and, although being an Attorney may be similar, it is not the same as a Deputyship.

I mention this as my wife and I have realised that we need to do something about these new rights and put in place the documentation.

Our old documents can not cover these new rights.

Yes, that makes sense if one is rightly concerned about these things. However, re your

I also suspect that the court may not be empowered to grant these new rights to a financial deputy, but can not say for sure

the Guidance LP4 is all all about How to be a health and welfare deputy:

https://www.gov.uk/government/publicati ... eb-version

[Gengulphus]

We will arrange for postal votes in future.

Maybe I'm missing something, but I'd have thought one needs a proxy vote to vote on behalf of someone else. Once one has a proxy vote, one can apply for a postal vote to make it easier to use the proxy vote - that's actually explicitly stated in the application for a proxy vote (*). But as far as I can see, any attempt to vote on behalf of someone else without having their proxy vote is the criminal offence of personation (see http://www.legislation.gov.uk/ukpga/1983/2/section/60).

That doesn't entirely rule out voting for someone for whom one is deputy, if they have enough mental capacity to appoint one as proxy although not enough for some other purposes, or if they have fluctuating mental capacity and one manages to get them to appoint one as proxy at a time when they do have good mental capacity. But it will rule it out in many cases, and it suggests taking some care to ensure that they really do have sufficient mental capacity to make the proxy appointment.

(*) There are several different forms of that application, depending on the reason for the proxy vote and available from https://www.gov.uk/government/publications/proxy-voting-application-forms. For example, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/410967/Proxy_voting_form_disability.pdf says:

"What happens after I’ve returned this form?

* Your proxy must go to your polling station to vote on your behalf. If your proxy cannot get to the polling station, they can apply to vote for
you by post. They can apply to do this until 5pm 11 working days before the poll."

Gengulphus

[Satsuma]

Apologies, that probably should have said we will get a postal vote (singular) in future. As has been outlined here, the Deputy cannot just assume voting rights for their Deputee (if that is even a word!).

[Gengulphus]

... their Deputee (if that is even a word!).

If it isn't, it ought to be! ;-)

Gengulphus