Glossary – What do all those guardianship terms mean?
Every state has a department that is tasked with protecting at-risk adults. APS case workers can, and frequently do, recommend guardianship proceedings be undertaken for vulnerable adults.
A progressive mental deterioration that starts slowly and gets worse over time. The onset can occur in middle or old age, and as the disease advances symptoms can include problems with language, disorientation, mood swings, self-neglect and behavioral issues. There is no known cure for Alzheimer’s. Also see: Dementia which is a different condition.
This federal law was signed by President George H. W. Bush in 1990. It specifically protects every U.S. citizen with physical, intellectual or emotional disabilities from discrimination in housing, employment, medical care and government support services.
The state of Minnesota is in the forefront of passage of a law that mandates a specific list of rights for adult wards of the court. Minnesota’s 17-point Bill of Rights includes: the right for a ward to have an attorney of their choice; to communicate with anyone they want; to be consulted before their personal property is disposed of, the right to petition the court directly regarding their desires about where they will live and the care they receive; the right to marry and to object to sterilization, and to be treated with dignity and respect at all times.
The appointed guardian can choose to hire any number of assistants to help care for the ward, be they homebound or in a facility. The guardian also decides each caretaker’s salary, paid for out of the ward’s estate. These caretaker positions can include licensed or unlicensed health care aides, registered nurses, licensed practical nurses, housekeepers, personal shoppers or cooks.
The premiere activist group working to assist family members fighting unwanted or abusive guardianships or conservatorships. CEAR also urges states to enact guardianship reform laws, and the organization frequently appears on Capitol Hill to encourage federal oversight of the system. The founders, Rick and Terri Black, have assisted in thousands of disputed cases and maintain high level contacts at both the state and federal level.
This is defined as “secret or illegal cooperation or conspiracy especially in order to cheat or deceive others.” Critics of abusive guardianship frequently allege that court appointees collude with each other to target potential wards—sometimes undeserving people—for conscription. Further, they maintain bad actors within the system cover up their colleague’s wrongdoings in an unspoken pact that ensures each of them can continue to earn their respective fees. For an illustrative example of this practice see the book’s chapter 5, Mercenary Methods Within the System.
A person appointed by a judge who assumes control of the ward’s finances. This appointee is responsible for determining the value of all holdings in an estate and reporting that to the court. They can hire any number of experts to help them maintain the ward’s estate. A conservator may engage financial auditors, experts in the stock or bond market, trust companies, income tax preparers, real estate analysts, or accountants. They may engage appraisers who determine the value of the ward’s home and property, antiques, artworks, coin or stamp collections, or other possessions of the ward. This person can decide to liquidate parts of the estate if money is needed for the ward’s care but that usually requires court approval. The conservator also pays all bills on behalf of the ward, including the hourly fees for those he or she hires to help service the ward’s needs. If a family disputes a conservators actions the court appointee may hire a lawyer to defend their decisions, a lawyer paid for by the ward’s estate.
This is one of only two positions within guardianships and conservatorships not paid for by the ward’s estate or from generous monthly government payments. Both the court clerk and the judge work for the county or state and are compensated by the taxpayers. Simply put, the clerk is the keeper of the records. Any family member or other interested party worried about a guardianship and contemplating possible legal action should become acquainted with the court clerk and obtain as many official court documents from the clerk as possible.
This appointee often has training in medicine or social work. They are there to help determine whether the guardianship is truly necessary and whether it should be made permanent. They are assigned by the court to interview the petitioner, the potential ward, family members and other relevant individuals (like the targeted person’s doctors or therapists), and report to the court their unbiased findings. Some court visitors and investigators are more diligent and unbiased than others. The ward pays for this service.
A deterioration of mental functions such as memory, concentration, and judgment, sometimes accompanied by emotional disturbance and personality changes. Although the disorder is often mentioned interchangeably with Alzheimer’s disease, it should not be. Not all diagnosed dementia patients go on to develop Alzheimer’s.
Once put into guardianship a ward may not, in most states, hire their own attorney, sign a contract, or negotiate a settlement in a legal dispute. As mentioned in the book, some divorce attorneys have attempted or successfully used guardianship petitions to muzzle uncooperative spouses in contentious divorce proceedings. (See the book’s chapter 9, Weaponizing Guardianship to End a Marriage, and chapter 8, Washington Could Help—But it Hasn’t, pages 127-129)
A guardian has the power to establish a Do Not Resuscitate Order for a ward against their wishes and those of the family. An example of this can be found in chapter 6, Guardians from Hell—and Layers and Judges Too which includes the story of disgraced former Florida guardian Rebecca Fierle, page 73.
This has been an often used device to get a judge to declare an immediate (albeit temporary) guardianship by declaring that the targeted person is in immediate danger. Because of the emergency nature of the petition, the court rarely takes time to vet the accuracy of information provided in the petition. Investigation has shown that these petitions often contain exaggerations, unsubstantiated charges of wrongdoing or downright lies. Generally, no witnesses are called to authenticate emergency petition information. Once established, temporary guardianships are almost always made permanent. (See also Petition for Guardianship below and the book’s Introduction, page 3 for further explanation of Emergency Petitions for Guardianship)
These are legal documents that everyone should prepare to clearly state what they want to happen at the end of their life. Included is a Last Will and Testament, a Power of Attorney, any trust designations, etc. They should include explicit instructions. For example: as you age do you want to stay in your own home at all costs or go to a nursing home? Who do you want to act as guardian in the event you become incapacitated? Do you want heroic measures to be taken to keep you alive or do you prefer a standing Do Not Resuscitate order? Which is your preference burial or cremation? (Also see Estate Documents)
As soon as a person is guardianized or conserved their estate is confiscated. The estate is everything of value owned by the ward including their home, its contents, vehicles, parcels of land, stocks and bonds, checking and savings accounts, heirlooms – everything. The estate will then be tapped by the court appointees to pay for all the services the ward receives. If and when it is necessary any or all of these possessions can be sold by the guardian or conservator to finance the ward’s care. The judge is supposed to approve all such sales in advance.
These are additional legal documents that clearly spell out what is contained within a person’s estate – be it a home, cars, parcels of land, valuable heirlooms, stocks or bonds or other investments. It names the chosen heirs to the estate and specifically notes what they will inherit. This is considered an important document when combined with a person’s Last Will and Testament and their Power of Attorney. (Also see End of Life Documents above and Trust/Irrevocable Trust below.)
All guardianship and conservatorship cases are conducted under equity court rules, be they presented in so-called Probate Court, Surrogate Court, Chancery Court or Orphan’s court. Equity Courts are a part of the judicial system that operate under completely different standards. Unlike a civil or criminal court, in an equity court a citizen’s right to due process is not guaranteed, jury trials are not allowed, and an equity court judge has wide discretion to issue rulings based on their own opinions and not established law. See the book’s chapter 3, The Players, pages 38-39)
In determining incapacitation of a potential ward a medical professional might determine the person has a ‘loss of executive function.’ This is the set of cognitive processes that are necessary for someone to adequately control their behavior and daily activities. For example, an impaired person might put on their jacket before their shirt or slip on their shoes before their socks. This is just one measure that is noted during a competency interview.
There is no federal agency which keeps track of how many Americans are living under court control in a guardianship or conservatorship situation. Also, most states do not keep an up-to-date database of wards, guardians or conservators which could help inform needed changes to the broken system. Reform activists complain that the government keeps track of missing children and motor vehicles but not those declared to be its most vulnerable citizens. For decades the Government Accountability Office has repeatedly reported to the U.S. Congress on the urgent need to establish a national data base. (See the book’s chapter 8, Washington Could Help—But it Hasn’t, for more detail on past GAO findings)
There are no federal laws, regulations or guidelines governing guardianship or conservatorship. Each state controls its own distinct system.
It is a little talked about reality that players within the guardianship system – from lawyers and guardians to conservators and nursing home administrators – give and get fees for passing information to each other about potential wards of the court. This is seen as standard operating procedure and is not illegal. Critics complain such fees encourage targeting and conscription of citizens who should not be guardianized. (See the book’s chapter 5, Mercenary Methods Within the System for more information on finder’s fees arrangements.)
Judges have routinely ordered guardianship and conservatorship cases sealed from the public and ordered all participants to stay silent on the proceedings. Violators can face hefty fines for disobeying the order. Since these hearings deal with the mental or physical health of the ward, judges issuing wide ranging gag orders do so under the auspices of the federal Health Insurance Portability and Accountability Act (HIPAA) which protects sensitive health information from being disclosed without the patient’s consent or knowledge. Critics of the secretive system say the lack of transparency allows inappropriate behavior by court appointees to be hidden from the public and left unpunished.
This is the person the judge appoints to be in control of all of the ward’s personal and medical decisions. They can be a family member, a close friend or a total stranger who offers the service for an hourly fee between $200 and $600 an hour. The guardian decides where the ward can live, who will care for them, who they can visit with and where they can travel. In addition, the judge can decide to anoint this person as a “plenary guardian” which means they have the additional responsibility of acting as a conservator with control over all the ward’s finances as well. Anyone appointed to a plenary post is in a very powerful position as they will control every aspect of the ward’s life. If a family disputes a guardian’s actions the court appointee may hire a lawyer to defend their position. That lawyer is paid for by the ward’s estate.
This person is an attorney assigned by the court to represent the ward. But there can be confusion regarding the precise role of a GAL depending on the state and the courtroom involved. Traditionally, a lawyer takes direction from their client. But in the case of guardianship where the client has been declared incapacitated, what then? Does the lawyer follow the doctrine of “zealous advocacy” for that client or, as some judges instruct the GAL, should they act to help the court determine what is in the “best interest” of the ward? It’s a gray area, not fully or uniformly defined from state to state.
Before any guardianship or conservatorship can begin a judge must find that the targeted person is “incapacitated” and is no longer able to take care of themselves. Once that designation is declared it is very hard to get the judge to reverse the ruling, even in the case of a temporary traumatic brain injury or psychological episode that is successfully treated later.
This is a program that exists in every state. Law firms are encouraged to pool client funds – usually nominal amounts like retainers, client refunds, or government checks – in an interest-bearing account. The interest is then supposed to be passed on to the state’s bar association to provide free legal assistance to the poor, to fund legal education, and to make improvements in the state’s justice system. There are suspicions that some conservator attorneys park ineligible funds in IOLTA and surreptitiously withdraw them later. Since the system is so secret it is nearly impossible for outsiders to track IOLTA funds. (For more on the potential for or suspected IOLTA misuse see chapter 1, The Floodgates Open, page 14)
This is the person who legally begins a guardianship or conservatorship and is the final word throughout. They also have the power to terminate the arrangement or choose a different, less restrictive remedy to assist the vulnerable person, such as a Supported Decision-Making program. (For more on SDM see chapter 17, Possible Solutions to Improve the System, page 250) The judge is also tasked with appointing and approving all the other players in a guardianship or conservatorship including the guardian, the guardian ad litem, the conservator, the court visitor or investigator and the qualified health care professional. In some states judges who rule on guardianship or conservatorship cases do not need to be a trained attorney.
This description has been used by unhappy family members to describe what has happened to their guardianized loved one. While kidnapping can be defined as someone being held against their will, this designation is not legally accurate when used in a court ordered situation. In the case of guardianship or conservatorship a judge has issued an order conscripting the ward into the system and that is legally binding.
This document lays out in detail exactly what someone wants to happen after they die. A will need not be written by a licensed lawyer but it is only valid once it is notarized. It is highly recommended that an attorney be consulted to draw up this document. (See Estate Documents above, and Power of Attorney and Trust/Irrevocable Trust below. For more on steps that can be taken to protect one’s wishes refer to the book’s chapter 16, Guarding Against Guardianship.)
Local police departments, sheriff’s offices, District Attorneys and Attorney Generals are generally reluctant to become involved in guardianship related complaints. To do so could be politically sensitive since they could be seen as circumventing a sitting judge. These agencies generally respond to family grievances about a guardian or other court appointee by saying, “It is a civil matter and a judge has ruled. We only investigate criminal cases.”
There are several different types of lawyers who populate the guardianship and conservatorship system. When there is family dissention over what to do with an elderly relative someone invariably turns to an elder law attorney for advice. There are also estate lawyers who help draw up documents spelling out a person’s desires about their personal wealth and its distribution. (See End of Life Documents above) Attorney-conservators focus on managing a ward’s finances and real estate lawyers may be called upon if there is a dispute over a home, business building or other property. All these types of lawyers have been known to routinely tout the benefits of guardianship or conservatorship as a preferred solution to a problem involving a vulnerable person. Then there is a legal specialty called the litigator. This type of attorney might be called upon to try to terminate a guardianship or conservatorship as a litigator’s goal is to come up with the best negotiating strategy in difficult situations and choreograph a settlement. (See more about litigator strategies in chapter 2, The Case Heard Round the World, page 32, the litigator’s case that freed Britney Spears, and chapter 17, Guarding Against Guardianship, page 239)
Frustrated family members who are unhappy with the guardianship or conservatorship of their loved ones may consider taking their story to the local or national media to try to force a change in the situation. This is a decision that should not be taken lightly. Depending on the judge, such publicity could backfire on those seeking to advertise their loved one’s plight. Advice on this can be found in the book’s chapter 16, Guarding Against Guardianship, pages 237-238)
A judge will likely ask for a qualified medical professional to observe and examine the ward and provide the court with a report spelling out the mental capacity of the patient. This is most often called a Medical Certificate of Capacity. It is advised that concerned family members seek such a baseline certificate for their loved one on their own before proceeding to a guardianship hearing. This pre-arranged certificate could prove the targeted person does not warrant conscription into guardianship or conservatorship.
This is a public-interest organization formed by victims and family advocates against unlawful and abusive guardianships. The group is in the forefront of supporting passage of the Uniform Guardianship Conservatorship and Other Protective Arrangements Act known as UGCOPAA. This proposal comes from the Uniform Law Commission with the idea that if every state passed it the nation would have one uniform law to protect at-risk citizens under guardianship or conservatorship control. (See the book’s chapter 17, Possible Solutions to Improve the System, beginning on page 260 for a full discussion of this proposed law. NASGA explains why it believes every state should pass it. Other activists explain why they are opposed.) NASGA maintains a voluminous online archive of abusive and exploitative guardianship cases.
This is an agency within the federal Department of Health and Human Services. In its online Elder Justice Toolkit, the Center warns of the “immense” power of unchecked guardians. But, again, there are no federal laws, regulations or rules governing the guardianship or conservatorship system.
This group describes itself as being the leading national resource for professionals working within the system. Its website says the organization is “leading the way to excellence by establishing and promoting nationally recognized standards [and] encouraging the highest levels of integrity and competence through guardianship education.” The NGA is known for its formidable grassroots lobbying efforts, deploying members from its state chapters to buttonhole lawmakers on committees that consider new laws that would reform guardianship procedures.
The DRN Works in Washington, DC to improve the lives of people with disabilities by guarding against abuse; advocating for basic rights; and ensuring accountability in health care, education, employment, housing and transportation. The organization says it is the nation’s largest provider of legal advocacy services for people with disabilities.
The overmedication of wards to ensure compliance has been widely alleged and confirmed in states across the country. Court appointed guardians (who are not required to have any specific medical training) have the power to order medications be given to calm anxious wards. For an example of how this practice can prove deadly see the book’s chapter 6, Guardians From Hell—Lawyers and Judges Too, beginning on page 79 for the story of Louise Falvo. More on the topic can be found in the book on pages 8 and 92.
This is the document that starts the guardianship proceeding. It can be initiated by anyone—a relative, friend, business associate, former lover, an angry neighbor, a nursing home or hospital, Adult Protective Services, or a total stranger. (See the book’s Introduction, page 4) It is most often written and presented to the court by a lawyer. The petition spells out in detail why the targeted person should be guardianized for their own protection. It is routine for a judge to accept the validity of the lawyer’s petition (as an attorney is considered an “officer of the court”) and a guardianship case is officially opened. It may be declared to be a temporary guardianship at first, but after investigation most are then established as permanent guardianships. (See also Emergency Petition for Guardianship above and the book’s Introduction, page 3.
This is the phrase that describes the one court appointed person who acts as both a guardian and a conservator for the ward. Anyone so designated is in a very powerful position as they will control all personal, health and financial affairs for the conscripted person. (Also see The Guardian above)
This is the person you designate to handle all your legal affairs if you become incapacitated or at the time of your death. It’s important that you have ultimate trust in this person as anyone who has power of attorney holds a formidable position. They can, literally, affect every aspect of your life—even while you are alive—if they are unscrupulous. It’s important to name a successor to your POA in case you want to remove the original choice or if that person pre-deceases you. An example of how designating the wrong person as POA can negatively affect a person’s life see the book’s chapter Guardians From Hell—And Lawyers and Judges Too, page 91-93, for the story of Rita Cole.
Traditionally, the mission of a Probate Court has been to oversee the settlement of an estate after someone dies. But more recently, probate judges have been assigned to oversee a range of different cases, including those involving guardianship and conservatorship that involve living people and their estates. In these circumstances the issue is no longer a settlement of a person’s estate but the control of the ward’s estate. The word “probate” is often used to describe the court in which guardianship proceedings take place. But in many states this is not correct. In some jurisdictions guardianship and conservatorship cases are held in Surrogate Court, Chancery Court or Orphan’s Court.
In determining whether to make a temporary guardianship a permanent arrangement the judge may order a ward to submit to various medical examinations to determine their competency. A psychiatric evaluation is one such exam. (Also see Medical Certificate of Capacity above)
The qualifications of this appointee differ depending on the state. They may be a licensed physician, like a family doctor, or they may be required to have an advanced degree in clinical psychology or neuropsychology. They normally spend a few hours with the targeted person interviewing and testing their cognitive ability, speech, judgment, memory, and “executive function” (e.g., their ability to carry out daily tasks in proper order). The psychological examiner is required to write a report for the judge to consider before a final ruling on capacity and permanent guardianship is issued. Such evaluations may be ordered more than once during the course of the court’s control.
This section of the federal criminal code provides for additional penalties and a civil cause of action for acts performed as part of an ongoing criminal conspiracy. RICO has been cited in several guardian/conservator related court cases in which redress has been attempted. Generally, the plaintiff’s underlying argument maintains that a group of court insiders banded together to cause the complainant to be either unfairly guardianized or exploited and abused by the conspiring players. To this author’s knowledge the RICO argument has never been successful in court. (See chapter 7, How Do the Bad Actors Get Away With It? and chapter 9, Weaponizing Guardianship to End a Marriage for examples.)
This is a program designed to help vulnerable citizens without the all-encompassing grip of guardianship. As its name suggests, Supported Decision-Making helps those in need make good life choices. As one attorney who urges judges to consider the program stated, “People who use Supported Decision-Making work with friends, family members, and professionals to give them the help they need and want so they can understand their situations and choices they face and make their own decisions.” A heartwarming story about the pioneering case that highlighted SDM’s success can be found in the book’s chapter 17, Possible Solutions to Improve the System, page 250, the case of Jenny Hatch.
This California based non-profit organization focuses on improving civil rights for those with disabilities, public education on the topic and reform of existing laws in California and elsewhere. The Institute’s founder and executive legal director, Thomas Coleman, believes that the minute a judge declares a citizen to be “incapacitated,” they are automatically protected by the federal Americans with Disability Act. He also believes the guardianship/conservatorship system routinely ignores the protections afforded under the ADA.
These are pre-planned estate documents that are designed to keep a person’s estate out of probate court after they die. Briefly, a trust ensures your assets will be distributed as you wish, and in a timely fashion without court interference. Investopedia.com explains an irrevocable trust this way: “The purpose of an irrevocable trust is to move the assets from the grantor's control and name to that of the beneficiary. This reduces the value of the grantor's estate in regard to estate taxes and protects the assets from creditors.” Also, an irrevocable trust may not be modified without the permission of the beneficiaries. Consulting a qualified estate planner is imperative when deciding what is best for you – a simple Last Will and Testament, a trust, an irrevocable trust or a living will. (Also see Estate Documents, Last Will and Testament and Power of Attorney above.)
This is a proposed law created by the Uniform Law Commission (ULC) in Chicago. It is a 258-page document, hammered out after years of studying guardianship and conservatorship practices in all fifty states. The ULC’ s goal is to provide one unified law that covers all protected persons that every state could pass. For a detailed debate on the merits of the UGCOPAA see the book’s chapter 17, Possible Solutions to Improve the System, beginning on page 260. For more on the Commission itself see the book's chapter 11, Turning a Blind Eye: Where’s the Legal Community?, page 163.
A guardian has the power to limit visitation—or any outside communication—with the protected person. For example, if a guardian determines that an adult child of an elderly parent is part of a “dysfunctional” family, or if they “upset” the ward by openly discussing the court ordered arrangement, then they can be banned from visiting, telephoning or writing to the ward. Sometimes a guardian will ask the judge to approve the action, sometimes it is a unilateral decision. The barred visitor may challenge the ban in court but that will likely cause them to have to hire a lawyer, and the guardian is allowed to hire their own attorney to defend their decision before the judge. The guardian’s lawyer will be paid out of the ward’s estate.
At the conclusion of a guardianship or conservatorship it is standard operating procedure for the court appointee to demand the family sign a waiver of liability before closing out the estate and distributing the inheritences. This agreement protects the guardian or conservator from any future civil lawsuits based on their activities while serving as a court appointee. Read the book’s chapter 12, The Cowgirls vs. the Conservator to fully understand how demand for such a waiver can thwart a family’s attempt to seek closure of an estate and recover damages after the death of their loved one.
Once a judge has declared a citizen to be incapacitated and ordered they be placed into guardianship or conservatorship that person becomes a ward of the court. They are stripped of their civil rights and placed under the control of court appointees who will make all personal, medical and financial decisions for them. Once designated as a ward it is very difficult to have that status terminated.
This is a state-by-state program set up by the American Bar Association. WINGS is a project designed to bring together concerned citizens (called stakeholders) from all groups affected by guardianship and
conservatorship—family members, guardians, judges, lawyers, nursing home administrators, home healthcare aides, and others—to discuss flaws in their local system and come up with legislative recommendations to fix it.