What is substituted judgment in a guardianship?

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What Is Substituted Judgment In A Guardianship

When thinking about estate planning in New Jersey, most people will focus on wills and trusts. However, there are other aspects to having a comprehensive estate plan that suits an individual’s needs. If, for example, a person is concerned about the possibility of being incapacitated and wants to ensure their affairs are handled in a way they deem appropriate, they will have a guardianship. The guardian will know the protected person’s desires and adhere to them; serve the person’s best interests; provide protection from abuse and exploitation; and shield the person from danger among other key duties. The role also has certain areas of nuance that should be understood. One is substituted judgment.

Understanding the guardian’s role under substituted judgment

In simple terms, a guardian exercising substituted judgment is making the same decisions the protected person would if he or she were able to do so. In some cases, the protected person can understand what is happening. Therefore, any issue must be discussed with them so they can take part in the decision. That can involve a surgical procedure, a financial concern or any other part of their lives. This can be discussed with other family members to gauge what the protected person would want.

This differs from the other option known as a “best interest standard.” The best interest standard is generally used for adults who were disabled from birth or a young age. Adults who became incapacitated will have a history to look back on as a guide to what their decisions might have been if it is currently unclear. Those who were disabled from childhood will not have that. The best interest is just what the term suggests: the person’s well-being should be the primary focus.

Dealing with the complexities of guardianships may require experienced guidance

Guardianships are often overlooked in estate planning, but that does not diminish its importance. People might think serving as a guardian means they will make decisions in the protected person’s stead. In a sense, it does mean that, but there are differences between substituted judgment and best interests. For those who have never been able to express their desires nor look out for themselves, serving their best interests will take precedence. For people who became incapacitated later in life but had previously stated preferences, substituted judgment might be applicable. With guardianships, it is useful to have professional assistance from the outset to tailor the plan to the protected person’s needs.


Michael Ritigstein is a Founding Partner of the firm concentrating his efforts in supporting the firm's litigation, corporate and estate matters. Mr. Ritigstein graduated from the University of Delaware in 1996 and Seton Hall University School of Law in 2000. In 2007 he received a Masters of Law in Taxation with a concentration in Estate Planning, from Temple University's Beasley School of Law.

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