Is
Guardianship Necessary?
by
Herbert D. Hinkle, Esq. and Ira M. Fingles, Esq.
Herbert D. Hinkle
Law Office
2651 Main Street
Lawrenceville, New Jersey 08648
(609) 896-4200 or (215) 860-2100
Frequently, families
ask whether guardianship is necessary and express concern that they
might be taking away important rights from their sons and daughters
with disabilities. Here are my thoughts:
In both Pennsylvania
and New Jersey, the standard for guardianship concerns the capacity
to govern oneself and manage oneās affairs. If a person lacks
this capacity, he or she cannot make decisions.
For example, suppose
John is moderately mentally retarded, age 30 and has no guardian.
John needs surgery. If successful, Johnās life expectancy and vitality
will increase. If unsuccessful, John might die. John has a very limited
understanding of how the human body works. He cannot balance the pros
and cons and often will sometimes say what he thinks others want him
to say.
John lacks the
capacity to make a decision and cannot give legally valid consent,
even though there is no guardian. A legal vacuum exists. Sometime,
doctors and hospitals will accept the consent of the parents, but
his is not legal and it does not always happen. If the parents disagree
with each other, or if there are no parents living, the situation
can be even more chaotic.
Another example:
Recently, parents removed their son from a residential program in
which he was regressing. The parents asked the state to consider placement
in a more expensive, but also more suitable program. The state declined
to consider placement, advising the parents that their son is his
own guardian and when asked where he wanted to live, he failed to
mention this program.
Legally, this
is absurd. There is no such thing as being your own guardian. A person
either has the capacity to make informed decisions or not. But, to
deal effectively with the situation, the parents are now seeking guardianship.
I agree with the
late Elizabeth Boggs, who observed that someone without the capacity
to make decisions does not lose anything under guardianship, rather
guardianship enables a concerned person to help the incapacitated
person to express his/her best interests.
Good practice
means that a guardian should consider the preferences of the ward
and allow the ward to make decisions to the extent able. Limited guardianship
is indicated in some cases to legally demarcate the decisions reserved
to the ward.
A few other myths:
guardianship does not terminate the right to vote. Likewise, the failure
to obtain guardianship does not make it easier to obtain state services.
On the other hand, once a parent becomes guardian, he/she can name
a successor under both a power of attorney and a will. In New Jersey
this is binding; in Pennsylvania, it is not binding, but persuasive.
Many related topics
are discussed in other articles on this website.
Copyright 2000
H.D. Hinkle. All rights reserved.
Mr. Hinkle maintains
a multi-state law practice with offices in Lawrenceville, Florham
Park, and Marlton, NJ, and Yardley, Pa. Mr. Hinkle and his colleagues
Ira Fingles, and Paul Prior lecture and write frequently on topics
of law, aging, and disability, and are available
to speak to groups in New Jersey and Pennsylvania
at no charge. Call (609) 896-4200.
