Estate Law Blog

A client comes to my office to discuss guardianship proceedings for her elderly mother. Her mother is no longer able to take care of herself, and without a durable power of attorney it is increasingly clear that court proceedings will be necessary to have her mother adjudicated incapacitated (what was once called mentally “incompetent”).

This is how nearly all of our private guardianship matters begin, and often enough, the consultation includes the whole family. There are always many concerns, and the decision to petition for guardianship is never an easy one. And one concern for many families is that they do not want to see their loved one stripped of all of right to participate in decisions affecting them.

The fundamental right of self-determination is highly valued, with good reason. And no one wants to see a loved one deprived of all of their rights, even when it is clear that a guardianship is needed.

An adjudication of incapacity is an extraordinary remedy, vesting the guardian and not the incapacitated person with ultimate responsibility to determine the best interests of the incapacitated person. It is a comfort for many families, I hope, to learn that a person does not lose all powers of self-determination when it is determined they are mentally incapacitated. I am not thinking only of negative rights – the right to be free from abuse, neglect, and the like – though those rights are certainly in place. I am thinking of the positive right to participate in all of the decisions, large and small, affecting the incapacitated person.

New Jersey law provides that the guardian of an incapacitated person must encourage the incapacitated person to “participate with the guardian in the decision-making process to the maximum extent of the ward’s ability in order to encourage the ward to act on his own behalf whenever he is able to do.”  (N.J.S.A. 3B:12-57)

It is anticipated, and even required, that the incapacitated person’s own decision-making be considered to the full extent the person is able to participate. While the guardian of an incapacitated person must ultimately weigh the decisions and preferences of the incapacitated person against what the guardian believes is in their best interest, an incapacitated person retains the right to participate in all decisions and must be encouraged by the guardian to act on his or her own behalf whenever that is possible.