The standard for taking the vote from a conservatee was rewritten in 2015, and the version of the statute operative since 1 January 2024 states the presumption in a single sentence.
The short answer: yes, unless a court has specifically found otherwise. "A person is presumed competent to vote regardless of the person's conservatorship status."¹ A person "shall be deemed mentally incompetent, and therefore disqualified from voting" only if, during one of four listed proceedings — a probate conservatorship of the person, a Lanterman-Petris-Short conservatorship of the person, a conservatorship following a finding of incompetence to stand trial, or a not-guilty-by-reason-of-insanity judgment with a finding of grave disability — "the court finds by clear and convincing evidence that the person cannot communicate, with or without reasonable accommodations, a desire to participate in the voting process."¹ A person "shall not be disqualified from voting pursuant to this section on the basis that the person does, or would need to do, any of the following to complete an affidavit of voter registration": sign "with a mark or a cross," sign "by means of a signature stamp," complete it "with the assistance of another person," or complete it "with reasonable accommodations."¹ A 5150 hold, a 5250 certification, or a psychiatric admission is not on the list at all. And the right comes back: in a probate conservatorship, at each review the court investigator must "review the person's capability of communicating, with or without reasonable accommodations, a desire to participate in the voting process," and unless the court again finds incapacity, "the person's right to register to vote shall be restored."²
The standard, and what it is not
The question is narrow by design. It is not whether you understand the candidates, the measures, or the consequences of a vote; it is whether you "cannot communicate, with or without reasonable accommodations, a desire to participate in the voting process."¹ A person who can indicate, by any means, that they want to vote passes the test. The finding must be made by the court — or, in a Lanterman-Petris-Short proceeding heard by a jury, by a unanimous jury — on clear and convincing evidence, inside one of the listed proceedings; a conservator cannot decide it, and a facility cannot.¹
The accommodation clause does the rest of the work. A person who completes the registration affidavit "with the assistance of another person," who signs it "with a mark or a cross" or "by means of a signature stamp," or who completes it "with reasonable accommodations," "shall not be disqualified" on that account.¹
A hold is not a conservatorship
The section lists the proceedings in which the finding can be made; an involuntary hold under section 5150, a 14-day certification, or a voluntary admission is not among them.¹ A person in a psychiatric facility keeps the right to vote unless a court or jury has already made the section 2208 finding in one of the listed proceedings, and keeps the listed right to receive unopened mail — deniable only for good cause, with the denial entered in the record — which is how the ballot arrives:⁴ for each election, "the elections official shall, no later than 29 days before the day of the election, begin mailing" the ballot materials "to every registered voter."³ The rights list posted on every unit →
Getting the vote back
The statute builds in review for probate conservatorships. At the yearly or biennial review, the court investigator must "review the person's capability of communicating, with or without reasonable accommodations, a desire to participate in the voting process."² If the investigator finds that a person previously disqualified can now communicate that desire, the court holds a hearing, and "unless the person is found incapable of communicating that desire, the person's right to register to vote shall be restored, and the court shall provide notice to the Secretary of State."² The burden stays where it was: incapacity must again be shown by clear and convincing evidence, or the vote returns.²
What to do
- If you are a conservatee and want to vote: register or check your registration; unless a court order disqualifies you, you are presumed competent.¹ If you were disqualified and can now communicate a wish to vote, tell the court investigator at the next review, or your attorney.²
- If you are a conservator: the vote is not yours to give or withhold. The ballot is mailed to every registered voter no later than 29 days before the election;³ make sure the conservatee's registration is active and the mailing address is current.
- If you are in a facility on election day: ask staff for your mail and a place to complete the ballot; ask the patients' rights advocate if either is refused. Who is the patients' rights advocate? →
Worked example
A man under a probate conservatorship has never been told he can vote; his conservator assumed the order removed it. It did not: no court made the finding under section 2208, so he "is presumed competent to vote."¹ He registers, receives a mail ballot at the board-and-care where he lives, and votes. Had a court made the finding, the investigator's next review would have to consider whether he can now communicate a desire to vote, and the right would be restored unless the court again found incapacity.²
Q&A
Q: My father has dementia and a conservator. Can he still vote? A: Unless the court made the specific finding, yes; the presumption is competence "regardless of the person's conservatorship status."¹ Locked dementia care under a conservatorship →
Q: I was found incompetent to stand trial. Did I lose the vote? A: Not by that finding alone. The disqualification can be made only in a conservatorship that follows it, and only on the communication test.¹ Found incompetent to stand trial: what happens now →
Q: Can I get help filling in the ballot? A: The statute's own list of things that do not disqualify you includes completing the registration affidavit "with the assistance of another person" and "with reasonable accommodations."¹
Q: Where does the disqualification get recorded? A: The court notifies the Secretary of State under section 2211.5 — of a disqualification when the conservatorship is established, and of a later disqualification or a restoration at review.¹ ²
Our therapist directory: See its current status →
How the conservatorship begins: Can I petition for an LPS conservatorship? →
Sources
- Cal. Elections Code §2208 (operative 1 January 2024) — "A person is presumed competent to vote regardless of the person's conservatorship status"; (a) a person "shall be deemed mentally incompetent, and therefore disqualified from voting, if, during the course of any of the proceedings set forth below," "the court finds by clear and convincing evidence that the person cannot communicate, with or without reasonable accommodations, a desire to participate in the voting process" — (a)(1) a conservator "for the person or the person and estate" under the Probate Code, (a)(2) the same under Welfare and Institutions Code §5350 et seq., (a)(3) a conservatorship following incompetence to stand trial, (a)(4) a not-guilty-by-reason-of-insanity judgment with grave disability; (b) in a Welfare and Institutions Code proceeding heard by a jury, "the jury shall unanimously find by clear and convincing evidence"; (c) notice to the Secretary of State when the finding is made with the conservatorship order; (d) "A person shall not be disqualified from voting pursuant to this section on the basis that the person does, or would need to do, any of the following to complete an affidavit of voter registration," followed by the four items as quoted; "This section shall become operative on January 1, 2024" — california.public.law. The communication standard dates from SB 589 (Stats. 2015, Ch. 736, chaptered 10 October 2015) — legiscan.com.
- Cal. Elections Code §2209 — (a) for Probate Code conservatorships, the court investigator's duty, at the yearly or biennial review, to "review the person's capability of communicating, with or without reasonable accommodations, a desire to participate in the voting process"; (b) the hearing "to determine if, by clear and convincing evidence, the person cannot communicate, with or without reasonable accommodations, a desire to participate in the voting process," and "Unless the person is found incapable of communicating that desire, the person's right to register to vote shall be restored, and the court shall provide notice to the Secretary of State"; (c) the order of disqualification and notice to the Secretary of State — california.public.law.
- Cal. Elections Code §3000.5(a) — "the elections official shall, no later than 29 days before the day of the election, begin mailing the materials specified in Section 3010 to every registered voter" — california.public.law.
- Cal. Welfare & Institutions Code §5325(e) — the right of a person detained or admitted for psychiatric treatment "To have ready access to letterwriting materials, including stamps, and to mail and receive unopened correspondence"; and §5326, under which the person in charge "may, for good cause, deny" that right, with the denial "entered into the person's treatment record" — california.public.law.
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