Glossary
of 10 Terms
Power of Attorney
A document
appointing an individual to be an agent for decision-making. The Power of Attorney is strictly
governed by the terms in the document.
Some Powers of Attorney provide for effectiveness only upon the
principal’s incapacity while others are effective immediately upon signing, even
if the principal still has capacity to make their own decisions. Sometimes states use the term durable to
indicate that the power of attorney lasts or is effective even though the
principal no longer has the capacity to make decisions on their own. Often, a power of attorney becomes
suspended or revoked when a court determines that the person no longer
has capacity to make decisions.
Health Care
Surrogate
This is a
person named by an individual, typically required to be in writing. The agent named is authorized to make medical decisions for
the principal when they become unable to
make their own medical decisions.
Each state provides for different decision-making powers by the health care surrogate, as well as the different
levels of proof as to the principal’s
incapacity to make their own medical decisions.
There often is a requirement of
one or two doctors’ opinions that the principal can no longer make medical decisions on their own. Another name is a medical power of attorney.
Incapacitated or
Incompetent
Each state
has its own definition for incapacity or incompetent. The definition is typically a legal term
that is determined with medical evidence. Often, the definition encompasses the
functional ability to act. There is
typically no bright line or litmus test for capacity. The court generally must gauge the person’s overall
ability to function in each of the
various areas of life. Many states
provide for capacity or incapacity to be
determined as to each right, thereby allowing a person to have either full or limited incapacity.
Fiduciary
Fiduciary is a term used to describe the
highest level of care and duty of one person to another. A guardian is a fiduciary. Other types of fiduciaries include
powers of attorney, health care surrogates, and trustees under a trust.
Plenary Guardian
A guardian
who is appointed with authority over all of the delegable rights of a person is said to be a plenary or total
guardian.
Limited Guardian
A guardian
who is appointed with authority over less than all of the delegable rights of a
person is said to be a plenary or total guardian.
Conservator
The
conservator is like the guardian of the property, and deals with the various property rights of an individual. These would include the right to contract, to transfer or dispose of property,
to apply for government benefits, sue and
defend lawsuits, and otherwise deal with financial interests such as businesses and investments. The standards for appointment sometimes differ from a guardian.
Examining
Committee
The group
of individuals who examines the person alleged to be incapacitated.
The committee submits a report to the court regarding that person’s capacity level. Each state defines who is to examine the
ward. The committee typically
includes people with some medical background
or expertise in aging and mental capacity. The number of the committee varies by state.
Interested Person
Each state
typically defines who interested parties are in a guardianship proceeding.
They typically include heirs, natural parents, and next of kin. The interested parties may change depending on
the nature of each case. Additional
parties that could be considered interested parties include creditors or people who are co-owners on
various assets such as joint bank
accounts.
Guardianship
Estate
This term generally refers to the assets
and financial rights of the ward that are subject to the guardianship and
guardian’s control. Typically, the
guardianship estate is established by the filing of an inventory listing the
assets as well as the sources of income and liabilities. Many times, trust assets are considered
outside of the guardianship control and are not considered part of the
guardianship estate.
Ward
A person who has been determined by the
court to lack capacity in some or all areas of their life and needs supervision. The ward is the person subject to the
guardianship.
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