Being appointed as a guardian over a person should be seen as a last resort, but sometimes if a person is incapacitated, it is necessary. New Jersey recognizes two types of guardianship. One is guardian of the property. This individual takes care of the incapacitated person’s financial affairs. The other is the guardian of the person. This individual takes care of the incapacitated person’s care planning and non-financial affairs.
The guardian of the person is to help the incapacitated person remain as independent as possible. The guardian of the person must listen to the incapacitated person’s opinions, if they can express them, and to act in a way that meets these preferences if it is safe to do so. Guardians will make decisions either by using substituted judgment or the best interest standard.
When a guardian makes a decision on behalf of the incapacitated person using substituted judgment, they are doing so based on what the incapacitated person would have wanted if they could make such decisions on their own. If possible, the guardian should discuss the decision with the incapacitated person to try to ascertain what their preference is. It can also help to discuss the situation with relatives and friends, who may have insight into the incapacitated person’s preferences.
When a guardian makes a decision on behalf of an incapacitated person using the best interest standard, they must base their decision based on what they believe is necessary to protect the incapacitated person’s best interests. This may be necessary if the incapacitated was never able to express preferences regarding their care or if their preferences would cause serious harm.
In the end, guardians are often placed in a position of having to make tough choices regarding the incapacitated person. No matter how they come to their decisions, they must be prepared to defend their choices if necessary. Thus, it is important to have as complete an understanding of the incapacitated person’s life and preferences as is possible, so that appropriate actions can be taken.