Glossary of Guardianship Terms

A

Adjudication – The legal process of resolving a dispute.

Advocate – A person who assists, defends, or pleads, or prosecutes for another.

Affidavit – A written statement made under oath. The signature is usually witnessed by a notary public.

Appeal – To bring a case before a higher court to review the decision made by a lower court. 

B

Best Interest – The course of action that maximizes what is best for a ward or respondent and that includes consideration of the least intrusive, most normalizing, and least restrictive course of action possible given the needs of the ward or respondent.

Bond – A promise made by the guardian. The promise protects the ward or respondent from mismanagement of funds by the conservator or guardian.  In the event of mismanagement, the court may decide that the guardian will reimburse any missing money.

C

Capacity – The ability to understand the nature and effects of one’s acts.

Caregiver Authorization – For a minor, a parent can authorize another adult living with the child to make educational or health decisions for the child for up to two years.

Citation – A legal notice used to set forth a deadline to file any objections. Along with the Petition, the Citation must be served upon the incapacitated person and mailed to his next-of-kin and any interested persons. If the address of an interested person is not known, the court may also order that the Citation be published in a specific newspaper, typically depending on the protected person’s location.

Clinical Team Report – This document form is required by the Probate and Family Court in the process of determining whether to appoint a guardian and/or conservator to assume some or all responsibility for an individual with an intellectual disability. A licensed psychologist, registered physician, and licensed social worker, each of whom is experienced in the evaluation of mentally incapacitated persons, must complete this form.

Conservator – A conservator is a person or entity appointed by a court to manage the property, money, business and financial affairs of an incapacitated person.

Conservatorship – Conservatorship is a protective legal process in which the Massachusetts Probate and Family Court may appoint a person called a Conservator, whose role is to marshal and manage the property of an individual who is (1) disabled and who requires a substitute financial decision maker either  (2)  to prevent the property from being wasted or dissipated or (3) so that the financial  support, care and welfare of the person is effectuated and managed.

Court Order – A legal document issued by the court and signed by a judge.  Examples include Letters of Appointment spelling out directions for the care of the ward or respondent.

Court Investigator – A person appointed by the court to provide the court with information concerning a ward, respondent or a guardian. A Court Investigator is a neutral person who is appointed by the court to make a thorough investigation, evaluation, and recommendation of all information relevant to a guardianship proceeding.  See also Guardian Ad Litem.

D

Dementia – Dementia is not a specific disease but an overall term that describes a wide range of symptoms and conditions. Dementia is associated with a decline in memory, thinking skills, and communication severe enough to reduce a person’s ability to perform everyday activities. There are many types of dementia such as Alzheimer’s disease, Vascular Dementia,  Lewd Body disease,  Frontotemporal Dementia and others.

Decisional Capacity – The ability to receive and evaluate information or make or communicate decisions.

Directive Services – These include medical and nursing care, care/case management and case coordination, speech therapy, occupational therapy, physical therapy, psychological therapy, counseling, residential services, legal representation, job training, and other similar services.

Durable Power of Attorney – A durable power of attorney is a legally binding document in Massachusetts where you appoint a trusted person, called an Attorney-in-fact, to manage and protect your money, property, and business affairs if you become disabled or incapacitated. A Durable Power of Attorney can avoid the need for Conservatorship.

E

Estate – One’s estate includes both real property and personal property, tangible and intangible, and includes anything that may be the subject of ownership.

Extraordinary Medical Treatment– The types of medical treatments which Court may consider ‘extraordinary’ requiring a substituted judgment determination includes administering of antipsychotic medication, sterilization, abortion, electroconvulsive therapy, psychosurgery and removal of artificial maintenance of nutrition or hydration..

F

Fiduciary – An individual, agency, or organization that has agreed to undertake for another a special obligation of trust and confidence, having the duty to act primarily for another’s benefit and subject to the standard of care imposed by law or contract.

G

Grievance – An allegation of wrongful doing by the office of guardianship or its staff, including but not limited to: failure to appropriately monitor and supervise contractors, violations of the due process rights of the ward or contractor and failure to comply with complaint produces.

Guardian – An individual or organization appointed by a court to make some or all personal and medical decisions for an incapacitated person, only as ordered by the court.

Corporate Guardian – A corporation that is named as guardian for an individual and that may receive compensation in its role as guardian with court approval. Corporate guardians may include banks, trust departments, for-profit entities, and nonprofit entities.

Family Guardian – An individual who is appointed by the Court as guardian for a person to whom he or she is related by blood or marriage.

Guardian Ad Litem – A person appointed by the court to make an impartial inquiry into a situation and report to the court.

Individual Professional Guardian – An individual,  appointed by the Court as guardian who is not related to the by blood or marriage.

Successor Guardian A guardian who is appointed to act upon the death or resignation of a previous guardian.

Temporary Guardian – is a guardian whose authority is temporary and who is usually appointed only in an emergency,

Testamentary Guardian – is a person named in a will to act as a guardian. A testamentary guardian may be appointed by a parent of a minor or disabled child, by the spouse of an incapacitated person or by a current guardian.

Guardianship- a legal process where the court can appoint a guardian to preserve the rights of an incapacitated person. Under the law, a Limited Guardianship is preferred whenever possible. Below are types of guardianships:

Full guardianship

The court can appoint a guardian with all of the authorities allowed by statute, including  making usual and customary medical treatment decisions as well as housing and other personal decisions.

Limited guardianship
As the name implies, a limited guardian’s authority is not plenary (full), and there are areas in which the individual retains the authority to make their own decisions.  The number of potential types of limited guardianships in any       particular case depends only upon the imagination of the parties and the approval  of the judge.  A guardian can be appointed with only very limited authority (such as only having the authority to consent to medical treatment) or the guardian  could have broader authority though limited in one or more areas (perhaps  indicating that the individual retains the right to vote or perform other activities).A limited guardianship can be narrowly tailored to be as least intrusive as necessary, with the shape of the limited guardianship in any case depending upon           the specific facts involved.

Rogers guardianship
A Rogers guardian is a guardian (either limited or full) who also has the authority  to monitor the administration of antipsychotic medication.  If the judge approves  an antipsychotic medication treatment plan, the individual can be provided  antipsychotic medication, though only with the medications and dosages allowed by the treatment plan and only until the plan expires.  Typically, antipsychotic medication treatment plans expire annually unless they are reviewed sooner by the court.  Even if a treatment plan does expire, the underlying guardianship continues unless the court terminates it.

Temporary guardianship
A temporary guardian can have any of the authorities of the other types of   guardians, but the authority is strictly time limited – usually to 90 days.  Before  lapsing the temporary guardianship can be extended or the temporary guardian   can be appointed as a permanent guardian.  It is also an option to have one  person(s) serve as temporary guardian and then have another person(s) serve as the permanent guardian.

H

Health Care Proxy – A Health Care Proxy is a legally binding document in Massachusetts that allows a competent person to appoint a trusted person as a Health Care Agent. If in the future a person is not able to make or communicate effective decisions, the Health Care Agent steps in to carry out the person’s choices for treatment and makes medical decisions on the person’s behalf. A Health Care Proxy can avoid the need for a Guardianship.

Hearing – A hearing is a court proceeding presided over by a judge. The judge “hears” the petition or request for action that has been filed. In a Guardianship hearing, the judge reviews the necessary documents that were filed, listens to arguments of the parties, and issues a decision in the form of a court order.

I

Incapacitated Person – An incapacitated person is an adult who has a clinically diagnosed medical condition that results in an inability to receive and evaluate information or make or communicate decisions. The adult lacks the ability to make effective some or all decisions about his or her everyday personal care, health and safety. If the Massachusetts court determines the adult is an incapacitated person and guardianship is appropriate, it may appoint a Guardian to advocate for the adult’s autonomy and make personal and medical decisions on the adult’s behalf. See also Respondent.

Incapacity – A person’s inability to receive and evaluate information or make or communicate decisions.

Indigent – A person with little money and property. If a petitioner or proposed guardian is indigent, the court may waive court fees, the cost of publication and other costs associated with a guardianship.

Informed Consent – A person’s agreement to allow something to happen that is based on a full disclosure of facts needed to make the decision intelligently, i.e., knowledge of risks involved, alternatives, etc. A person’s agreement to allow something to happen made with knowledge of risks involved and the alternatives. A patient’s knowing choice about a medical treatment or procedure, made after a physician or other healthcare provider discloses whatever information a reasonable prudent provider within the medical community would give to a patient regarding the risks involved in the proposed treatment or procedure.

Interested Person – Individuals who, set out specifically in the Massachusetts law, have a right to notice regarding a guardianship or conservatorship petition. See the Notice requirements  for adult and for Minors for a list of who is defined as a interested party and must receive proper notice.

Intellectual Disability - An Intellectual Disability (ID) is defined as a person with sub average intellectual functioning existing concurrently with limitations in adaptive skills.  This term incorporates various intellectual and developmental deficits and conveys an understanding that the condition is relatively permanent and not expected to substantially improve over time.

L

Least Intrusive – A mechanism, course of action, or situation, which allows a respondent the greatest opportunity for autonomy with a minimum of intervention.

Least Restrictive Alternative – A mechanism, course of action, or environment that allows the respondent to live, learn, and work in a setting that places as few limits as possible on the respondents rights and personal freedoms as appropriate to meet the their needs.

Letters of Appointment – Formal document issued by the court containing or attesting the grant of some power, authority, or right.

M

Medical Certificate – This form is required by the Probate and Family Court in the process of determining whether to appoint a guardian and/or conservator to assume some or all responsibility for an incapacitated person who does not have an intellectual disability. A Medical Certificate must be completed and signed by a licensed physician, psychologist, nurse practitioner or psychiatric nurse.

Medical Orders for Life Sustaining Treatment-  A Medical Order for Life Sustaining Treatment (MOLST) is a medical document that can be used by seriously ill patients to indicate their wishes for life-sustaining treatment. This is not a legal document, but a voluntary medical care document that may be suitable for some adults nearing the end of life in exercising their right to accept or refuse medical treatments. After discussions with your clinician, the patient and the clinician can sign a MOLST form to convert the patient’s wishes for life-sustaining medical treatments into a clinician’s medical orders that can be honored by health professionals in any setting statewide.

N

Notarize – The process where a notary public verifies the signature on a document. The signing must be done in the presence of the notary public.  Generally, notary publics can be found at banks.

Notice – Written communication seeking to make its recipient aware of a fact or thing, as required by law or contract.

O

Oath – A sworn statement.

Order – Decision made by a court.

P

Petition – A formal, written request presented to a court or other official body.

Protected Person – A person who is alleged in a legal petition for conservatorship to be incapacitated or is someone for whom the Court has appointed a conservator.

Pro Se – A party who acts as his or her own attorney. Also called a ‘self-represented’ party.

R

Representative Payee – An individual, agency, or organization named by a governmental agency to receive government benefits on behalf of, and for the benefit of, the beneficiary entitled to such benefits.

Respondent – A person who is alleged in a legal petition to be incapacitated. A Respondent has specific rights under Massachusetts law.

S

Self-Determination - A doctrine that states the actions of a person are determined by that person. It is free choice of one’s acts without external force.

Subpoena – An order requiring a witness to appear and testify in a court proceeding.

Substituted Judgment – A substituted judgment standard in applied by the court when a guardian seeks the court’s permission for extraordinary treatment. ‘Substituted judgment’ means the Court substitutes itself for the incapacitated person and attempts to determine that person’s actual interests and preferences, and how he or she would make the decision regarding antipsychotic medication if competent. The Court must take into account all of the factors and concerns that likely make up the particular person’s decision-making, including the following: the person’s expressed preferences regarding treatment, the person’s religious convictions, the impact of the decision on the person’s family, the probability of adverse side effects, and the prognosis for the person with and without treatment.

Surety Bond – A bond endorsed by the guardian as well as a corporate or personal surety.  The guarantor(s) are liable to the respondent’s estate for any financial wrongdoing by the guardian.

W 

Ward – A minor child for whom a guardian is sought or has been appointed.