A guardianship is a legal action whereby a third person with standing is authorized by the Court to make decisions for an incapacitated individual. The legal test for incapacity is the inability to govern oneself or manage one’s affairs. N.J.S.A. 3B:1-2. It may apply to individuals with physical or mental illness or disability, as well as those who are chronic substance abusers. In New Jersey, the action is brought in the county Chancery Court, Probate Part.
The Guardian is that third person once vested with the court’s authority to decide, while the adjudicated incapacitated person is called the Ward. The authority granted may be full or limited, depending upon the capabilities of the Ward. For example, if a Ward needs help solely with his or her finances, a limited Guardianship for this specific purpose is warranted. Limited Guardianships should be employed to ensure self-determination as feasible. However, should a Ward be fully incapacitated, then a full Guardianship may be warranted.
A proceeding for third-party decision-making authority may be involuntary (Guardianship) or voluntary. A voluntary proceeding is called a Conservatorship, but in reality, it is rarely seen perhaps because of the flexibility of Guardianships.
