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Glossary GLOSSARY OF TERMS USED IN GUARDIANSHIPS AND TRUSTS Revised October 16, 1998 ACCOUNTING. A list of the income and spending on behalf of the ward by a guardian or trustee. Washington law usually some trustees and all guardians to file annual accounting and schedule a hearing to approve the accounting. ALLEGED INCAPACITATED PERSON. (AIP) The phrase used in the guardianship statute to identify the subject of the guardianship action. If the court finds the person to be incapacitated, the person is thenceforward referred to as "The Incapacitated Person". ADULT FAMILY HOME. A type of long term care residence. Restricted to 6 or fewer residents. Located in typical residences, with adaptations. Different facilities offer great variety of care, depending on qualifications of provider. Generally considered to be preferred alternative to nursing homes. The most qualified providers can offer more intensive or expert services. Caution is necessary in placement and in monitoring, as quality of care varies from residence to residence and, sometimes, over time. ALLEGED. Stated but not proven. Not yet decided by a court. For example, in a petition for guardianship the proposed ward is referred to as the " alleged incapacitated person". After the court has found this to be so and ordered a guardianship the ward is "the incapacitated person". ANNUITY. A series of payments of predetermined amount, term and frequency; usually acquired as an exchange for funds or other consideration at the outset. Usually very secure, but relatively low yielding, investments. Often sold inappropriately to elders. Often appropriately purchased with proceeds form damage settlements, see Structured Settlement. ASSISTED LIVING FACILITY. A type of long term care facility. Constructed as care facility, usually houses 20-60 residents.. At a minimum offer one meal per day, medication monitoring, and wellness checks. Often provide on site medical clinics and on or off site activities. Rooms are approximately size of typical bedroom, often have microwave and refrigerator. Great variety in services offered ranging from specialty in Alzheimer’s care to minimal assistance to autonomous elders. ATTORNEY-IN-FACT. A person authorized by another to act in his/her place. Generally empowered to manage financial or other affairs. Has a high level of fiduciary responsibility, although many attorneys-in-fact are unaware of this. Commonly referred to as "the power of attorney". See Fiduciary. AUTHORITY. Permission. In guardianship, actions of the guardian are authorized by the language of the order appointing guardian. This order can be general, giving the guardian permission to do all those things the statutes and common law permit; or the order may limit the permission it gives the guardian. BEST INTEREST. The decision standard of second resort. See Decision Standard. BOND. A type of insurance protecting the ward, not the guardian. The ward is insured against intentional misuse of the wards money by the guardian. In the event of payment of a claim against the bond, the issuer of the bond takes action to recover from the guardian. CAPACITY, TESTAMENTARY. The measure of mental ability sufficient for making a will. Generally, having knowledge of the nature and extent of ones assets, the natural object of ones bounty and the desire to create a will. A much lower standard that is required for appointment of a guardian. Not necessarily affected by a finding of incapacity in a guardianship. CAPACITY. Ability. See Incapacitated Person. CASE LAW. Law arising from decisions of courts as distinguished from enactments of the legislature. See Common Law. CERTIFIED COPY. A copy of a legal document made from the original by the court clerk and bearing the clerks seal. This is as official as a document from the court file can be. CO-GUARDIANSHIP. A guardianship in which authority over the person or estate of the ward is shared by more than one person. Co-guardians may share the same authority, or the court may order the respective co-guardians to perform different tasks, with the appropriate authority. Co-guardianships require specific directions to the clerk as to preparation of Letters of Guardianship unless otherwise specifically ordered the Letters will require that both co-guardians sign and approve all documents, directives or financial transactions. These Letters designate "A and B" as guardians. The alternative is to order that the letters shall be made out to "A or B". COMMON LAW. Principles and rules of action that derive from ancient English customs and the decisions of courts to date. CONSERVATOR. A term not used in Washington State. In other states synonymous with Guardian of the Estate, and sometimes with Guardian of the Person as well. COPES. Community Options Program Entry System. A program for people who are eligible for Medicaid (which see). Under COPES a person who is financially and medically eligible for state funded nursing home care is eligible to receive assistance with home based care or with care in less restrictive settings such as Assisted Living or Adult Family Home. Exceptions to Policy are available, if specifically requested, to pay reasonable fees for quality care in home like settings. CORPUS. Principle. The funds held in trust. COURT FILE. See "File". COURT ORDER. See "order". COURT CLERK. An office maintained by each county to manage the paperwork of the court system. The clerk is generally not found in a court room, but in a separate office in the county court house. DECISION STANDARD. The criteria by which decisions of a surrogate are measured. The standard of first resort is the Substituted Judgement, by which decision made is the one that the principal would make if s/he were competent. Substituted Judgements can be made on the basis of written statements of the principal, things that the principal has said to others, or religious and cultural beliefs that the principal is known to hold. The Judgement Standard of second resort is the Best Interest Standard. The Best Interest Standard is used when there is insufficient information to make a decision based on Substituted Judgement. The best interests of a person are those actions that a reasonably thoughtful and prudent person would most likely taken for him or her self. EXEMPT RESOURCE. See Resources. FIDUCIARY. A person in a position of trust. Commonly holds assets of another or responsible for protecting the interests of another. Position justifying a high degree of confidence, requiring scrupulous good faith and candor. Black's Law Dictionary, revised Fourth Edition states: Out of such a relation the law raises the rule that neither party may exert influence or pressure on the other, take selfish advantage of his trust, or deal with the subject matter of the trust in such a way as to benefit himself or prejudice the other except in the exercise of the utmost good faith and with the full knowledge and consent of that other, business shrewdness, hard bargaining, and astuteness to take advantage of the forgetfulness or negligence of another being totally prohibited between persons standing in such a relation to each other. FILE, TO. To cause to be placed in the court file. Legal documents are generally filed by attorneys by being given to the court clerk. FILE, COURT. A file folder maintained by the court clerk for a particular case. All documents submitted to the court are placed in the court file in chronological order. The court file is the legal record of all that has been done in the guardianship and is available to the public for review and copying. GERI-CHAIR. Commonly used restraint device used on elders in facilities. Never seen in homes. Basically a reclining chair with a tray that is difficult for the occupant to remove. Rarely described as candidly as here. GUARDIAN, LIMITED . A guardian whose authority over a ward has been reduced or conditioned by the court order appointing guardian. GUARDIAN OF ESTATE. A person given authority by the court over assets of another person. See Fiduciary. GUARDIAN OF PERSON. A guardian having authority to make medical and personal decisions on behalf of another; and who has the right to consent to the release of otherwise confidential records. GUARDIAN AD LITEM. (GAL) 1. Generally, a person appointed by the court to protect the rights of someone considered not fully competent who is involved in a legal matter. Except in juvenile court matters, a temporary position. 2. In adult guardianships, A person, usually an attorney, appointed to advise the proposed ward of his/her rights, investigate the facts alleged in the petition, recommend whether a guardianship is appropriate, recommend a guardian and recommend whether there should be limits on the guardianship. 3. In personal injury actions, an attorney appointed when plaintiff is incompetent, who makes a recommendation on the adequacy of the settlement and on the appropriate distribution of the proceeds. HAMMER, RULE OF. "When the only tool you have is a hammer, everything looks like a nail." Applicable to decision making in human services with disturbing frequency. HEARING. An appearance before a judge in which facts and documents are presented and testimony heard; and at which a judge often signs an order. Differs from a trial in that it is short, less formal, usually less adversarial and oriented to assuring that technical requirements of legal practice have been followed. INCAPACITATED PERSON. "A person may be deemed incapacitated as to person when the superior court determines the individual has significant risk of personal harm based on a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety...a person may be deemed incapacitated as to the person's estate when the superior court determines the individual is at significant risk of financial harm based on a demonstrated inability to adequately manage property or financial affairs." RCW 11.88.010. The term incapacitated replaced the use of the terms incompetent and disabled, in the guardianship statute. INFORMED CONSENT. Permission for health care or other personal services given by a person who is aware of alternatives, risks and outcomes of the treatment or service. INVENTORY. In guardianship, a list of the funds and possessions of a ward. Washington law requires the filing of an inventory within 90 days of appointment of a guardian. LEAST RESTRICTIVE ALTERNATIVE. A Due Process right to receive services in a manner which intrudes to the smallest degree possible on a person's autonomy and personal choice; and with only those restrictions necessary to protect the person. LETTERS OF GUARDIANSHIP. A document issued by the court clerk certifying that a guardianship of person and/or estate has been ordered for a particular individual, naming the guardian and indicating whether limits have been placed on the authority of the guardian. LIABLE. Bound or obligated. A Liability is something owed to another. Exposed to risk. MEANS TESTED. See Needs Based. MEDICAID. A needs based medical assistance program administered by the state. Recipients must be disabled and have total assets, with some exclusions, of $2,000. Medicaid pays for medical care, prescription medicine and for some residential care. Differs from Medicare. MEDICAID LIEN. In court ordered Special Needs Trusts, which see, a provision required by federal law which requires upon the termination of the trust due to beneficiary’s death or regained capacity that costs paid through the Medicaid program must be reimbursed to the state. MEDICARE. A form of prepaid medical insurance. Available upon retirement to anyone those eligible for Social Security Retirement or Social Security Disability. Differs from Medicaid. NEEDS BASED. Used to describe programs such as SSI and Medicaid which are available only to people who are indigent. Same as means tested. NOTICE. Information. Usually refers to a legal document that informs a person of some activity, such as a hearing, scheduled to occur in court. Some people are entitled by stature to notice of actions in particular matters. Virtually any one can request to receive notice of activity in a guardianship. ORDER APPOINTING GUARDIAN. A legal document signed by a judge showing that the court has determined a person to be in need of a guardian, naming the guardian and setting forth the authority of the guardian. See Authority. ORDER. A legal document signed by a judge. A command or directive to parties to a legal action by a court. PETITION. A legal document that sets forth facts, initiates a court action and seeks a specific order from the court. In guardianship, the legal paper that starts the guardianship in court is called "the petition". PETITIONER. The person signing a petition. The person starting the process. In guardianship, may or may not be the proposed guardian. POWER OF ATTORNEY. The voluntary and competent designation by one person of another to transact personal business. Involves no court action. Creates a fiduciary relationship, . PROTECTIVE PAYEE. Same as representative Payee. PUBLIC ENTITLEMENT. Benefit programs managed by government, eligibility for which is set out in various statutes, rules and regulations. Public entitlements may or may not be Needs Based. SSI and Medicaid are needs based. Social Security and Medicare are not. RCW. Revised Code of Washington. A consolidated and codified arrangement of all the laws passed by the Washington Legislature that are in effect at any one time. Published by West Publishing Company, a private business. REPRESENTATIVE PAYEE. A person delegated by the Social Security Administration, DSHS or other government agency to receive the income of another person. Involves no court proceeding. RESOURCES. Net worth. In means tested public entitlements, resources are money or other assets that were acquired by the recipient in a previous month. Distinguished from income, which is money or assets received in the present month. A person who receives income this month and spends it has no change in resources. A Resource may be "exempt", such as a house owned by the recipient, meaning its value is not counted in determining eligibility. RESPITE CARE. Care provided to a disabled person in order to give a break to the regular care giver. A basic necessity to preserve any full time care giver's sanity. Also, name of the state program that was the forerunner to COPES. SOCIAL SECURITY DISABILITY (SSDI). A disability insurance program providing income to people of less than retirement age who have paid sufficient premiums in form of payroll deductions and have become disabled. Also available to "disabled adult children", that is adults who were disabled prior to age 18 and whose parents are retired on SSA. Recipients become eligible for Medicare after a waiting period. Not based on financial need. Part of the Social Security system, premiums are paid through the payroll deduction. SOCIAL SECURITY RETIREMENT (SSA). A retirement income program available to those who have paid sufficient premiums in form of payroll deductions. Recipients are virtually always eligible for Medicare. Not based on financial need. SSI (Supplemental Security Income). A needs based program providing up to about $500 per month to people who are disabled and impoverished. SSI recipients are usually also eligible for Medicaid. It is possible to be eligible for both SSI and either SSA or SSDI, when retirement income is under the SSI amount. STRUCTURED SETTLEMENT. a method by which proceeds from a personal injury action or other settlement are invested in annuities which pay a certain amount for a specific amount of time, usually the life of the person receiving funds. Proceeds can be directed to a Special Needs Trust, which see. See Also, Annuity. Structured settlements vary widely in when they begin making payments, in the amounts paid, which often increase over time, and when payment begin. SUBROGATION. A process by which a person or organization which has incurred costs as a result of a person’s injuries shares in the recovery. Usually takes form of insurance companies or Medicaid seeking part of the settlement in a personal injury action. SUBSTITUTED JUDGEMENT. See Decision Standard. SURETY. The insurance company that provides the guardians bond. TRUST. Funds or property held by one person (the Trustee) for the benefit of another (the Beneficiary). There are many, many different types of trusts. Trusts vary widely in their purposes and provisions. The trust document, or trust agreement, contains these provisions. Trusts with the same name, for instance Craven Trusts, often vary depending on the specific provisions written into the trust. TRUST ACCOUNT. Funds belonging to a nursing home resident held by the facility. Not a trust in the formal sense used in the other definitions in this glossary. TRUST ADVISORY COMMITTEE. A device used in some trusts by which a committee of professionals and family is created in the trust document with the duty to advise the trustee on how money should be spent. TRUST, CRAVEN . A Craven Trust is a Special Needs Trust created by one person for the benefit of another. Originally and most often part of a person will which creates a trust for the benefit of a child with disabilities. Lev Craven is the name of the first person to have created a special needs trust for his child. TRUSTEE. The person or organization designated by the trust document as the manager of funds. Responsible for investments and for decisions on spending. See Fiduciary. TRUST, GRANTOR. A grantor trust is a trust in which funds of the beneficiary are placed into trust. Under the law a persons own funds can be placed into a special needs trust by an order from any court, including a guardianship court. Settlement trusts are also considered to be grantor trusts. By federal law, any Grantor Trust with special needs provisions must include a Medicaid Lien (which see). TRUST, LIVING. A living trust is one that is created and funded during the lifetime of the Trustor. TRUSTOR. The person whose funds are placed into trust. TRUST MANAGER. Also called trust Financial Manager. A person designated in some trusts who has the specific role of managing investments. Always an investment professional such as a broker or financial advisor. In these cases, the trustee has duty to oversee the Trust Manager and to otherwise have legal responsibility for the trust. TRUST, SETTLEMENT. A Settlement Trust is a Special Needs Trust created from the proceeds of a personal injury or other court action. Sometimes called Dussault Trust. Must include a Medicaid Lien (which see). TRUST, SPECIAL NEEDS A Special Needs Trust is a type of trust by which funds can be set aside to be used for the extra and supplemental needs of a beneficiary while preserving the beneficiary’s right to receive needs based government assistance such as Medicaid or SSI. The source of funds may be a relative, a personal injury damage settlement, a marital separation, or, under certain circumstances, an incapacitated person's own funds. Special Needs Trusts are used in a variety of situations and are also referred to as Dussault Trust, Craven Trusts. TRUST, TESTAMENTARY. A testamentary trust is a trust created and brought into being by a person’s will. Often contains "special needs" provisions. TRUST, THIRD PARTY. A third party trust is a trust which is funded by someone other than the trustee or the beneficiary. Testamentary trusts are an example of a third party trust. WARD. A person having a guardian. This term does not appear in the Washington guardianship statute and is more of a lay person's word, but is commonly used by attorneys and judges. WARD OF THE COURT. This phrase is not used and has no special meaning in relation to adult guardianships in Washington. |