New Jersey Administrative Code
Title 10 - HUMAN SERVICES
Chapter 43 - GUARDIANSHIP: NEED, APPOINTMENT, CONTINUITY
Subchapter 1 - GENERAL PROVISIONS
Section 10:43-1.1 - Philosophy

1. An adult individual with developmental disabilities may or may not require appointment of a guardian to act on his or her behalf. A conclusion that a guardian is required shall be founded upon a sound clinical basis and shall be regularly reviewed, in accordance with 10:43-8.1;

2. Guardianship is the removal of a person's fundamental right of self-determination and, therefore, shall be a solution of last resort. The staff of the Division of Developmental Disabilities shall make efforts to seek solutions that are the least restrictive and intrusive to a person's liberty and that preserve to the maximum extent possible the individual's autonomy while providing the needed protections. Restricting a person's decision-making authority shall be limited to only those areas in which the person has demonstrated a lack of capacity as determined by a clinical assessment;

3. The ability to make decisions depends upon the complexity of the decisions to be made and the potential consequences of those decisions. All decisions are not complex, nor are all decisions simple. Most of the daily decisions that people make do not require a high degree of abstract thinking. They are about making everyday choices that relate to their immediate needs;

4. Decision-making is a continuum of reasoning ability from a simple preference to a choice between alternatives (often defined by others) to weighing pros and cons, risks and benefits and anticipating possible consequences. A person moves back and forth along this continuum relative to the demands of the decision to be made;

5. Restricting a person's right to make decisions also may restrict the opportunities to develop decision-making skills. The ability to choose is expressed in many ways. It is a skill that is difficult to acquire without practice and difficult to express without opportunity. In order for an individual to learn to make decisions, he or she needs real opportunities to make decisions with real consequences. Taking away a person's right to make decisions further limits that person's opportunity to acquire decision-making skills;

6. Decisions may be expressed by verbal or non-verbal language, written communication or behavioral action; and

7. Guardianship is not appropriate for those individuals who are deemed capable of making and expressing all of their own decisions. Limited guardianship is appropriate for those individuals who are deemed capable of making and expressing some, but not all, decisions. General guardianship is appropriate only for those individuals who are deemed incapable of making or expressing any decisions.