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This website contains general information about Guardianship Law and related legal areas, and is not tailored to anyone's particular situation. You assume all risk of acting on information contained in this website. No attorney-client relationship exists unless Weiss Law executes with a client, a written engagement agreement.
Capacity is not necessarily an all or nothing proposition. There is a broad spectrum of capacity ranging from maintaining full capacity to lacking all capacity to make decisions. The reality is that many issues of capacity fall somewhere along this spectrum.
The New Jersey courts have recognized this spectrum of capacity in a landmark New Jersey Supreme Court case first recognizing the use of "limited" guardianship in 1994. The New Jersey legislature ultimately caught up to the court and enacted the Limited Guardianship statute specifically outlining how limited guardianship can be crafted and implemented throughout New Jersey.
The New Jersey Limited Guardianship Statute is found at N.J.S.A. 3B:12-24.1(b). The statute sets forth that if a person is only partially incapacitated, the court must make specific findings in one of two ways:
The guardian is vested with only specific authority and the ward retains all other capabilities. This tool can be very effective for example in assisting a person living with mental illness who requires decision making assistance in only certain areas of his or her life but is otherwise functioning in some regard.
The ward retains specific delineated areas of decision making and the guardian is vested with all other decision making. This tool can be very effective for example in assisting individuals with developmental disabilities who may be gainfully employed and have the ability to manage some minimal finances but who require decision making assistance in several other aspects of their lives.
Nina Weiss has extensive experience in crafting limited guardianship under both scenarios. Limited Guardianship is an optimal tool in serving to strike the proper balance between protecting our loved one living with diminished capacity while recognizing their rights and abilities to make certain decisions, thus preserving their autonomy to the maximum extent possible.
For more information on least restrictive alternatives and standards for guardians, visit the National Guardianship Association website here.