The NJ Guardianship statutes and court rules give examples of areas of decision-making that can be excluded from the guardian’s control and reserved to the person under guardianship. A case called Matter of M.R., 135 N.J. 155, 638 A.2d 1274 (NJ 1994) discussed the idea that a person under guardianship may still have the capacity to make certain decisions such as with whom she wanted to live. The statute and court rule now specifically address these issues. For instance, a guardianship judgment could preserve the person’s right to vote; to decide where to live; to make a Will; to control a certain amount of money; to decide who to socialize with; to decide whether to have a smoke or a drink.
The court-appointed attorney has the responsibility to be the lawyer and advocate for their client. If their client is able to communicate, the attorney can explore these potential issues to see if they are important to the client. If they are, it may be possible to negotiate them with the Petitioner’s counsel without too much of a fight. If an agreement can’t be reached, the lawyer can arrange a special evaluation of mental capacity & awareness, so as to prove that a limited guardianship would be sufficient.
Here is a sample of an actual reservation of rights in a 2011 judgment: ” The Guardians of the Person shall ensure that XYZ is able to participate in decisions as to her social activities such as travel, shows and entertainment; association with friends; all personal care such as hairdressing, bathing, meals; nail care and choice of clothing; whether to participate in physical exercise or therapy (unless same is ordered by her physician); whether to attend family gatherings; and the ability at all times to confer with and express her opinions to doctors and nurses who are taking care of her, except where her decision or non-decision presents a substantial risk to her health or welfare, such as consumption of alcohol. The Guardians are authorized to limit access by persons who the Guardians find pose a hazard to XYZ’s emotional or physical welfare.” XYZ was also given free access and use of $1,000 a month to spend as they pleased.
Creativity on the part of everyone involved can produce limited guardianship arrangements that preserve & protect autonomy as well as safety. Call us to discuss guardianship issues ……732-382-6070