It is often assumed that when an incapacitated person needs a guardian, all right of decision-making is taken from the person in need. While the removal of the right of self decision-making may be required in the vast majority of cases, it is not necessarily so. More and more states, including New Jersey, have introduced the “Limited Guardianship”.

A guardian is appointed when two physicians have personally examined an individual and determine that he or she is no longer able to govern their own affairs. A guardian is appointed during the resulting court proceeding. The guardian may then be given authority over the person’s financial affairs, a “Guardian of the Property”, and/or authority over their person (housing, medical decisions etc.), a “Guardian of the Person”, or both, a “Plenary Guardianship”. Although the majority of guardianships are Plenary, it need not be so. A pending case in Virginia illustrates this point.

A 29-year-old woman with Down Syndrome, Margaret, is fighting her parents’ attempt to become her guardian. Before last August, neither of Margaret’s divorced parents wanted to care for her. Margaret moved between friend’s apartments and group homes, before settling in with her employers at their home. Once she secured Medicaid Waiver services, Margaret’s parents filed for guardianship of their daughter.

Margaret is contesting the guardianship. She insists that she should have the right to live where she wants. Her supporters have started a “Justice for Jenny” campaign, and her cause has drawn the interest of national advocacy groups. The Court has yet to reach a decision, but it may well be that this is an appropriate case for a limited guardianship.

© Shanahan & Voigt, LLC 2014

BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services.