Sometimes, as a person ages, his or her mental or physical abilities deteriorate to the point that he or she becomes partially or totally incapacitated. Special needs children may also be incapacitated as adults. When this happens, a court appointed guardian may need to be selected to take care of the incapacitated person’s affairs. However, state law defines what duties a guardian can fulfill.
Under New Jersey Statutes §12-24.1(a), if a court deems that an individual is totally incapacitated, and therefore is unable to make any decisions on his or her own behalf or manage his or her affairs, then a general guardian will be appointed by the court. A general guardian has the power to make all decisions on behalf of the incapacitated person.
However, if a person is incapacitated, but is still able to partially care for him or herself, then instead of appointing a general guardian, the court may appoint either a limited guardian of the person or a limited guardian of the estate or both. Under New Jersey Statutes §12-24.1(b), the limited guardian only has the authority to make decisions on issues specified in the judgment. These decisions may include residential decisions, medical decisions and financial decisions, among others. The incapacitated individual will still be in charge of making the decisions of which he or she is capable.
Because guardianship involves the relinquishing of a person’s right to make his or her own choices, it should only be viewed as a last resort. Guardianship may be sought if the incapacitated person did not have a power of attorney in place. Because a guardian is answerable to the court that appointed him or her, rather than to the incapacitated person, it is more important than ever that guardianship is only pursued when no other alternatives are available. Those in New Jersey who believe they have a loved one in need of a court-appointed guardian will want to make sure they understand what this entails, so they can make informed choices.