According to the Mental Capacity Act (2005), a person’s ability to understand, retain, weigh up and communicate a voting decision does not exclude them from the right to vote in a public election. It is certainly not an action that can be made on their behalf by another person.
This is stated explicitly in the Act, where it says:
Nothing in this Act permits a decision on voting at an election for any public office, or at a referendum, to be made on behalf of a person.
Mental Capacity Act (2005), section 29
This is further clarified within the Electoral Administration Act:
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.
Electoral Administration Act 2006, section 73
In section 5.10 it directs that regardless of capacity or incapacity, the decision of how to vote at an election must be made by the elector (person) themselves. They must not be influenced in how to vote, that their decision must be their own.
What this means in practice then is that anyone who is eligible to vote should be encouraged to participate, and not prevented, even if they are deemed to ‘lack capacity’ in a specific area(s) of decision making.
Promote the vote
Given the very clear legislation on who is eligible to vote, it is therefore quite alarming to see how some organisation and individuals have reportedly refused to enter residents onto the electoral register on the grounds of a (supposed) lack of mental capacity to vote.
Indeed, this remains an ongoing issue, with regular reminders shared by professionals supporting the Electoral Commission to ‘promote the vote’.
For more information, there are a range of information pages and blogs that have been published over time looking into this topic, these include:
- The Electoral Commission, Wales, (October 2025)
- Alzheimer’s Society (April, 2025)
- Mental Capacity law and policy (April 2023)
- Anthony Gold, Solicitors (December, 2019)
- The Small Places, Lucy Series (September 2012)
- The Local Government Lawyer (September 2012)
- The BMJ (August 2010)
If you’d like support with the Mental Capacity Act – from training and consultancy to individual assessments, then we can help. Please contact us to find out more.