Voting And Powers of Attorney

November 6, 2020 Paul Emile Trudelle General Interest, In the News Tags: , , , 0 Comments

I just checked the news, and it appears that “voting” is a hot topic right now.

A question then occurred to me: Can an attorney under a Power of Attorney vote in a public election on the grantor’s behalf?

Under Ontario’s Substitute Decisions Act, 1992,  s. 7(2), a power of attorney may authorize a person “to do on the grantor’s behalf anything in respect of property that the grantor could do if capable, except make a will.” Under s. 46(1), a person may give a written power of attorney for personal care, authorizing the person or persons named as attorneys to make, on the grantor’s behalf, decisions concerning the grantor’s personal care.

However, voting in a public election is considered to be an act that is personal in nature to the individual and not something that can be done by an attorney under a power of attorney.

(Not all voting by an attorney is prohibited: An attorney may have the ability to vote in the place of the grantor in a corporate context.)

According to the website “Probate Stars”, in most US states, voting by attorney is not allowed. In some states, for example, Florida and Arizona (gotta love Arizona), legislation expressly prohibits an attorney from voting on behalf of the grantor.

In other states, voting by attorney is presumed to be not allowed, as voting is considered to be an act that is “personal” in nature, and cannot be delegated. Quoting from a Tennessee appeals court decision of Rich Printing Co. v. Estate of McKeller (citation not given):

 It is axiomatic that an agency may be created for any lawful act and that whatever a person may lawfully do, if acting in his own right and in his own behalf, he may delegate that authority to an agent. It is also axiomatic that authority cannot be lawfully delegated which is illegal, immoral or opposed to public policy, nor can one delegate an act which is personal in its nature, such as designating an agency to perform a personal duty or a personal trust. Of course an elected officer cannot delegate one to hold the office to which he has been elected in the absence of statutory authority so to do, nor to cast his vote for him.

In Ontario, it would appear that this reasoning applies as well.

Even though an attorney cannot vote for the grantor, it may be possible for the grantor to authorize someone to vote on their behalf through a proxy in limited circumstances. For example, there is a reference to proxy voting in the “Voter’s Guide for Ontario Municipal and School Board By-elections 2016-2018”. The Guide confirms that an attorney cannot vote on behalf of the elector, but a properly appointed proxy can.

Thank you for reading.

Paul Trudelle

Leave a reply

Your email address will not be published. Required fields are marked *

SUBSCRIBE TO OUR BLOG

Enter your email address to subscribe to this blog and receive notifications of new posts by email.
 

CONNECT WITH US

TRY HULL E-STATE PLANNER SOFTWARE

Hull e-State Planner is a comprehensive estate planning software designed to make the estate planning process simple, efficient and client friendly.

Try it here!

CATEGORIES

ARCHIVES

TWITTER WIDGET

  • Thompson and Virtual Litigation Today's article explores the questions surrounding the fate of virtual litigation.… https://t.co/nQ4KgbPP2V
  • Last Thursday's article: Applying the new standard for limitation periods. Read the full blog here:… https://t.co/tiPOz7skaK
  • Improving Dispute Resolution for the Last Stages of Life Read today's full article exploring the, Last Stages of L… https://t.co/7fWx7b9PDi
  • Planning for Blended Families Read last Wednesday's blog, which explores the unique challenges presented when esta… https://t.co/7G0LI8QAGX
  • The Slayer Rule and Estates Law Today's article discusses the slayer rule in the context of the March 2021 decisio… https://t.co/5J6DeLh3EG
  • The latest episode of our podcast is now live! Hull on Estates #624 – Worsoff and Virtual vs. In-Person Examinatio… https://t.co/oblkloPaYh