Limited Guardianship: A Liberating Concept

When a petition for guardianship is filed in NJ, the examining physicians, the court-appointed attorney for the alleged incapacitated person, and the Court are required to consider whether the person lacks the capacity “to care for himself” and to “manage his affairs” in some or all domains. See N.J.S.A. 3B:12-24.1b (the statute) and N.J. R. 4:86-2(b) and 4:86-4(b) (court rules).  The Court can order a limited guardianship.

Once I represented the mother of a young man who eagerly moved to a group home after years of living with his mother in her home. He was a participant of the NJ Division of Developmental Disabilities (DDD).  There was no power of attorney in place, and the mother was petitioning for plenary guardianship over all domains of his life — personal/medical as well as property/financial — because she felt his understanding of information and his decision-making ability were greatly impaired.

He didn’t feel he needed a guardian over the person.  Neither did his team at DDD or his court-appointed attorney. Mom was anxious about letting go.

We talked further with his team at DDD. They felt that he couldn’t understand math and money or issues like rent and property, but that he really understood the basics of his medical conditions. He could recite all the names and dosages of his drugs and when he had to take them. He knew his doctors’ names and what each of them treated. He knew the dates of recent and upcoming appointments. It was a curious divergence among his capabilities. Further, he adamantly didn’t want his mother to be present during his medical examinations.

The attorneys negotiated over how he could retain his autonomy in the personal sphere, with support. He agreed to allow his mother  to talk with his doctors and even go to the visits from time to time so that she would stay up to date about his conditions & treatment, especially if there were a major medical problem. The DDD personnel would make sure he took his medications correctly. In other personal areas, he’d “be his own man.”

The Mom was reluctant and nervous, but agreed to give it a try. She became guardian of the property only. The happy news is that the arrangement worked out very well for all concerned.

Tomorrow … more on limited guardianship.

 

Call me to discuss guardianship and structured shared decision-making … 732-382-6070

 

 

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