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October 16, 2024

Advocating For the Right to Vote

By Hon. Selena Molina; Magistrate in Chancery

The PDF (including endnotes and footnotes) in which this article appears can be found here.

Gearing up for Election Day, voting rights are on everyone’s mind. But as we think about our own vote—for whom we will cast it, when during our busy days we will visit our polling place, and where that place is, has it changed since our last vote—and we would be remiss not to consider those we protect. For me (and I expect for many readers of this article), that is people with disabilities under a court-ordered guardianship. 

Under Delaware law, the Delaware Court of Chancery is the ultimate fiduciary for individuals under guardianship within our state. We have implemented tools to ensure guardianships are only imposed with clear and convincing evidence of incapacity and that we monitor our appointed guardians, checking in frequently to ensure individuals subject to guardianship are protected and provided for. But the Court relies on others to suggest the more nuanced protections—what rights can and should be retained by the person with a disability and how can the guardianship be limited to permit the greatest extent of autonomy to the individual?

Those proposals should come first from the petitioner seeking guardianship and second from our appointed attorney ad litem. In practice, the weight bears heaviest on the latter. That is because the majority of those petitioning for guardianship in Delaware are self-represented. When presented with a court form that asks what rights can the person with an alleged disability retain, many individuals instinctively answer: none. But, once the attorney ad litem is appointed, they must take a closer look and make more nuanced recommendations to the Court. 

Rarely, however, do I see an attorney ad litem report in an uncontested matter that seeks a specific finding on voting capacity. Under Delaware law, someone “adjudged mentally incompetent,” cannot vote. To be “adjudged mentally incompetent” requires a specific finding in a judicial guardianship that, based on clear and convincing evidence, the individual has a severe cognitive impairment which precludes exercise of basic voting judgment. 15 Del. C. § 1701. But what, precisely, is required for a “specific finding” has not been tested. For example, would an order from me that someone (1) has a disability under Delaware law, (2) has severe cognitive impairment such that they cannot understand or handle their own day-to-day tasks, (3) is fully unable to manage their person and property, and (4) needs a plenary guardianship, be specific enough? Does that person retain the right to vote? What would happen if they showed up at the polling place with their guardian and their guardianship order in hand?

Given this uncertainty, many attorneys ad litem will consider and advocate for the right to vote in connection with contested proceedings. In Delaware, when a person with an alleged disability objects to a petition for guardianship, they have a right to a second attorney, who will represent them and their wishes in all future proceedings. Those second attorneys ad litem are often the ones who bring the question of voting to the table. Through mediation or other negotiation, the parties who can resolve contested guardianship petitions will frequently come to the Court with a proposed limited guardianship, through which someone will consent to guardianship if specific rights, like the right to vote, are retained. Assuming all is in order, the Court will then issue an order approving such limited guardianship, with certain rights expressly reserved and retained. 

I am always thankful when the parties can reach these resolutions and find a workable and agreeable solution. But the right to vote, more broadly, remains on my mind. As we all plan to cast our ballots on election day, I think about the people for whom guardians were appointed under my Court’s more general guardianship orders and whether their votes can and will be heard. I wonder whether, in the lead up to the election, I will be asked to clarify this issue and what the appropriate procedure and standard might be to address any such request. And, looking outward, I implore my fellow fiduciaries and advocates for persons with disabilities to ask these questions and work toward answers in your jurisdictions.  

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