Terms Used in Guardianships and Trusts

 

Here are links to a couple of specialized glossaries:   Legal Terms        Social Security

The glossary follows this update. In 2019 the Washington legislature passed SSB 5604, effective on January 1, 2021.  The guardianship statutes that have been in place for some time (RCW 11.88, RCW 11.92) are repealed and a new statute will become effective. Among the results of this change is a change in the terms that are used in guardianships, which are summarized below.

 

“Effective 1/1/2021”	“RCW 11.88, 11.92”	“Definition”
“Respondent”	“Alleged Incapacitated Person. (AIP)”	“The phrase used in the guardianship statute to identify the subject of the guardianship action.”
“Visitor”	“Guardian ad Litem”	“A person appointed by the court to investigated the need for a guardian. Usually a lawyer.”
Guardian	Guardian of Person	a  person  appointed  by  the  court  to  makedecisions with respect to the personal affairs of an individual.
Conservator	Guardian of Estate	A  person  appointed  by  a  court  to  make decisions  with  respect  to  the  property  or  financial  affairs  of  an individual.
Full/Limited Powers		Guardians and Conservators with all authority available under the statute have “Full” powers. If the authority has been conditioned or restricted in some way, they have “Limited” authority.
Person subject to a Guardianship/ Conservatorship	Incapacitated Person	A person for whom a court has appointed a guardian or conservator.
Letters of Office	Letters of Guardianship	A  document  issued  by  a  court certifying a guardian’s or conservator’s authority to act.
Special  Agent		A new role created by the legislature. A person appointed to protect the assets of the Respondent pending the outcome of the matter; or who is appointed as part of a “Protective Arrangement”, which see.
Protective Arrangement		New. A protective order to allow actions on behalf of the Respondent that is short of a guardianship. Apparently intended for short term or low impact activities such as benefit applications, medical consent or financial protections.
Supported Decision Making		New. Assistance  from  one  or more persons of an individual’s choosing in understanding the nature and consequences of potential personal and financial decisions, which enables the individual to make the decisions, and in communicating a decision once made if consistent with the individual’s wishes.

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Glossary

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ACCOUNTING. A list of the income and spending on behalf of the protected person by a guardian or trustee. Guardians and trustees are required to prepare and distribute accountings annually. Guardians and some trustees must obtain court approval of the accounting.

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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.

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ALLEGED. Stated but not proven. Not yet decided by a court. For example, in a petition for guardianship the reference is to the “alleged incapacitated person”. After a court has found this to be so and ordered a guardianship the incapacity has been proven and the term becomes “the incapacitated person”.

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ANNUITY. An income stream for purchase. A series of payments of predetermined amount, term and frequency; usually acquired as an exchange for funds or other consideration at the outset. Usually secure, conservative, almost risk free investments. Sometimes sold inappropriately to elders. Often appropriately purchased with proceeds form damage settlements, see Structured Settlement.

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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 usually size of typical bedroom, but can be much larger. Great variety in services offered ranging from specialty in Alzheimer’s care to minimal assistance to autonomous elders.

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ATTORNEY-IN-FACT. An agent authorized by another to act in his/her place via a Power of Attorney document. Generally empowered to manage financial or other affairs. The agent 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.

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AUTHORITY. Official permission. The power or right to do something. 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.

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BEST INTEREST. The decision standard of second resort. See Decision Standard.

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BOND. A type of insurance protecting the estate, not the guardian, which is often required of fiduciaries who have court reporting duties. The estate is insured against intentional misuse of assets by the fiduciary. In the event of payment of a claim against the bond, the issuer of the bond takes action to recover from the fiduciary.

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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.

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CAPACITY. Ability. See Incapacitated Person.

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CASE LAW. Law arising from decisions of courts as distinguished from enactments of the legislature. See Common Law.

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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.

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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.

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COMMON LAW. Principles and rules of action that derive from ancient English customs and the decisions of courts to date.

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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.

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CORPUS. From Latin for “Body”. The assets held by a fiduciary such as bank accounts, investments or property as distinguished from income.

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COURT FILE. See “File”.

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COURT ORDER. See “order”.

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COURT CLERK. An office maintained by each county to manage the paperwork of the court system. The Court Clerk is generally not found in a court room, but in a separate office in the county court house, and does not work for the judge.

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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.

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DISABLED ADULT CHILD. A not well known Social Security Medicare benefit. A person who was disabled before the age of 22 becomes eligible for Social Security and Medicare after their parent has retired or has died (assuming the parent paid into Social Security). Showing proof that the disability originated before the age of 22, can be difficult since eligibility apply is not until the parent is retirement age. Good record keeping is a must for parents of children whose disability is likely to be long term. This is not a needs based benefit.

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EXEMPT RESOURCE. See Resources.

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FIDUCIARY. A person in a position of trust. Guardians, conservators and trustees are fiduciaries. Commonly holds assets of another or responsible for protecting the interests of another. Position justifying a high degree of confidence, requiring scrupulous good faith, transparency, and candor. A fiduciary duty is the highest standard of care in equity or law. A fiduciary may have no conflicts of interest and may not take advantage of the relationship.

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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.

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FILE, COURT. At one time a file folder maintained by the court clerk for a particular case. Court files are now held and accessessed on computers. 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 case and is available to the public for review and copying.

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GERI-CHAIR. A 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.

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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.

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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.

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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.

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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; and has in turn been replaced by the term “person subject to a guardianship or conservatorship”.

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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.

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INVENTORY. 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.

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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.

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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.

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LIABILITY. An obligation or potential obligation. Risk. In accounting, a debt or amount owed.

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MEANS TESTED. See Needs Based.

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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.

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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.

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MEDICARE. A type of medical insurance. Available upon retirement or disability to anyone eligible for Social Security Retirement or Social Security Disability. Differs from Medicaid.

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NEEDS BASED. Used to describe programs such as SSI and Medicaid which are available only to people who are indigent. Same as means tested.

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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.

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ORDER. A legal document signed by a judge. A command or directive to parties to a legal action by a court.

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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.

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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”.

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PETITIONER. The person signing a petition. The person starting the process. In guardianship, may or may not be the proposed guardian.

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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. Often used in estate planning to be used in case the principal becomes disabled, to avoid the future need for court action.

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PROTECTED PERSON.A term used in some state laws, but not Washington, to refer to the subject of a guardian. Also used as a generic term.

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PROTECTIVE PAYEE. Same as Representative Payee.

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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.

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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.

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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.

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RESOURCES. Net worth. In means tested public entitlements, resources are money or other assets that have been acquired by the recipient. Distinguished from Income, which is money or assets received during a given 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 or car owned by the recipient, meaning its value is not counted in determining eligibility.

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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.

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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“, which see.

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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.

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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.

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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, often the life of the person receiving funds. Proceeds can be directed to a Special Needs Trust, which see. Structured settlements vary widely in when they begin making payments, in the amounts paid, which often increase over time, and when payment begin. See also, Annuity.

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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.

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SUBSTITUTED JUDGEMENT. See Decision Standard.

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SURETY. The insurance company that provides the a bond, which see.

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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 terms of the trust, the duties of the trustee and the the claims the beneficiary may make are set out in the trust document. In everyday speech “The trust” usually means either the trust document itself or the assets of the trust.

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TRUST ACCOUNT. A term mused in long term care for 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.

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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.

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TRUSTEE. The person or organization designated by the trust document as the manager of funds. See Fiduciary.

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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).

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TRUST, LIVING. A living trust is one that is created and funded during the lifetime of the Trustor.

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TRUSTOR. The person whose funds are placed into trust.

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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).

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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.

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TRUST, TESTAMENTARY. A testamentary trust is a trust created and brought into being by a person’s will. Often contains “special needs” provisions.

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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.

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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.

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WARD OF THE COURT. This phrase is not used and has no special meaning in relation to adult guardianships in Washington.

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