GLOSSARY OF TERMS - GUARDIANSHIP & ALTERNATIVES TO GUARDIANSHIP
ADVANCE DIRECTIVE
A written instruction, such as a living will or durable power of attorney for health care, that guides care when an individual is terminally ill or incapacitated and unable to communicate his or her desires.
ADVOCATE
To assist, defend, or plead in favor of another.
ARM'S-LENGTH RELATIONSHIP
A relationship between two agencies or organizations, or two divisions or departments within one agency, that ensures independent decision-making on the part of both.
BEST INTEREST
The course of action that maximizes what is best for a ward and that includes consideration of the least intrusive, most normalizing, and least restrictive course of action possible given the needs of the ward.
CAPACITY
Legal qualification, competency, power, or fitness. Ability to understand the nature and effects of one's acts.
COMPLAINT
means an allegation of wrongdoing by a contractor or a violation of the contract with the office of guardianship and the contractor.
COMPREHENSIVE EVALUATION
is an assessment using a variety of diagnostic tools to determine the appropriate level of intervention, if any, in order to maximize self-reliance and independence for a ward.
CONFLICT OF INTEREST
Situations in which an individual may receive financial or material gain or business advantage from a decision made on behalf of another. Situations that create a public perception of a conflict should be handled in the same manner as situations in which an actual conflict of interest exists.
CONTRACTED GUARDIANSHIP PROVIDERS
means some private/public entity under contract with the Guardianship Program to act as guardian for an adjudicated incapacitated person who has no family or friends willing, able and appropriate to be his/her guardian.
CONTRACTOR
means an entity under a contract with the Guardianship Program to provide some type of guardianship service; i.e., attorneys, court visitors, or guardians.
COURT
An arm of the government, belonging to the judicial department, whose function is the application of the laws to controversies brought before it and the public administration of justice.
COURT
means the district court or family division of the district court where such jurisdiction is conferred.
COURT ORDER
A legal document issued by the court and signed by a judge. Examples include a letter of guardianship spelling out directions for the care of the ward and the estate and an authorization or denial of a request for action.
COURT-REQUIRED REPORT
A report that the guardian is required by statute or court order to submit to the court relative to the guardianship.
DESIGNATED ENTITY
is a person or organization contracted or appointed by the Guardianship Program to conduct the comprehensive evaluations.
DESIGNATION OF GUARDIAN
A formal means of nominating a guardian before a guardian is needed.
DIRECT 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 POA
means the document has language which indicates that it will not be affected by any subsequent incapacity of the principal. Thus, it is considered to be a durable power of attorney.
EMERGENCY
means any situation in which the physical or mental condition, health status or safety of an incapacitated person is at significant risk due to the unavailability of a substitute decision maker.
EMERGENCY/TEMPORARY GUARDIAN
is a guardian whose authority is temporary and who is usually appointed only in an emergency.
ESTATE
Both real and personal property, tangible and intangible, and includes anything that may be the subject of ownership.
EXTRAORDINARY MEDICAL CIRCUMSTANCE
Includes abortion, removal of life support, sterilization, experimental treatment, and other controversial medical issues.
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.
FOREIGN GUARDIAN
is a guardian appointed in another state or jurisdiction.
FREESTANDING ENTITY
An agency or organization that is independent from all other agencies or organizations.
FUNCTIONAL ASSESSMENT
A diagnostic tool that measures the overall well-being of an individual and provides a picture of how well the person is able to function in a variety of multidimensional situations.
FUNCTIONAL IMPAIRMENT
means an impairment that is measured by a person's inability to manage his/her personal care or the person's inability to manage his/her estate or financial affairs or both.
GRIEVANCE
means an allegation of wrongdoing by the office of guardianship or its staff.
GUARDIAN
An individual or organization named by order of the court to exercise any or all powers and rights of the person and/or the estate of an individual. The term includes conservators and certified private or public fiduciaries. All guardians are accountable to the court.
GUARDIAN
means a person who has qualified to provide for the care, custody or control of an incapacitated person pursuant to testamentary or court appointment, but excludes one who is a guardian ad litem.
GUARDIAN AD LITEM
means an attorney appointed by the court to represent and protect the interests of an incapacitated person in connection with litigation or any other court proceeding.
GUARDIAN OF THE ESTATE
is a guardian who possesses any or all powers and rights with regard to the property of the individual.
GUARDIAN OF THE PERSON
is a guardian who possesses any or all of the powers and rights granted by the court with regard to the personal affairs of the individual.
INABILITY TO MANAGE HIS/HER PERSONAL CARE
means the inability, as evidenced by recent behavior, to meet one's needs for mental or physical health treatment or care resulting in personal neglect of medical care, nutrition, shelter, hygiene or safety so that physical injury, illness or disease has occurred or is likely to occur in the near future.
INCAPACITATED PERSON
Any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause to the extent that the person lacks sufficient understanding or capacity to make or communicate responsible decisions.
INCAPACITATED PERSON
means any person who is found by a court to be impaired to the extent that he/she lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his/her person or management of his/her affairs.
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.
INTERESTED PERSON
means any person who has an interest in the welfare of the alleged incapacitated adult to be protected, and may include the Guardianship Program.
LEAST RESTRICTIVE ALTERNATIVE
A mechanism, course of action, or environment that allows the ward to live, learn, and work in a setting that places as few limits as possible on the ward's rights and personal freedoms as appropriate to meet the needs of the ward.
LEAST RESTRICTIVE FORM OF INTERVENTION
means only those limitations necessary to provide the needed care and rehabilitative services, and that the adjudicated incapacitated adult shall enjoy the greatest amount of personal freedom and legal rights.
LETTERS
means letters of guardianship, which provide proof that the guardian of the adjudicated incapacitated adult is a court appointed guardian.
LIMITED GUARDIAN
means a guardian appointed by the court to exercise limited authority for the incapacitated person as specified in the court order.
LIMITED GUARDIAN
is a guardian appointed by the court to exercise the rights and powers specifically designated by a court order entered after the court finds that the ward lacks capacity to do some, but not all, of the tasks necessary to care for his or her person or property, or after the person voluntarily petitions for appointment of a limited guardian. A limited guardian may possess fewer than all of the legal rights and powers of a plenary guardian.
LIMITED GUARDIANSHIP
means the court shall appoint a limited guardian if it determines that the incapacitated person is able to manage some but not all aspects of his/her personal care. The court shall specify those powers that the limited guardian shall have and may further restrict each power so as to permit the incapacitated person to care for himself commensurate with his/her ability to do so. A person for whom a limited guardian has been appointed retains all legal rights except those that have been specifically granted to the limited guardian by the court.
PETITIONING ATTORNEY
means the attorney who files a petition on behalf of the interested person and represents the interested person and identifies the proposed guardian.
PLENARY GUARDIAN
is a person appointed by the court to exercise all delegable rights and powers of the ward after the court finds the ward lacks the capacity to perform all of the tasks necessary to care for his or her person or property.
PLENARY GUARDIAN OR FULL GUARDIAN
means a guardian appointed by the court to exercise all legal rights and powers of the incapacitated person after the court has found that the incapacitated person lacks the capacity to carry out all the tasks necessary to care for his or her person.
PLENARY GUARDIANSHIP OR FULL GUARDIANSHIP
means the most restrictive form of guardianship and is authorized by a court only when an alleged incapacitated person is found to lack capacity to carry out all of the tasks necessary to care for his or her person and only after less restrictive options have been ruled out .
POWER OF ATTORNEY (POA)
means a document created while a person (principal) has capacity, which grants revocable authority to another person (agent) to act on behalf of the principal in specified areas.
PRE-NEED GUARDIAN
is a guardian who is formally nominated before a guardian is needed.
PRUDENT INVESTOR RULE
All investments must be considered as part of an overall portfolio rather than individually. No investment is inherently imprudent or prudent. The rule recognizes that certain nontraditional investment vehicles may actually be prudent and the guardian who does not use risk-reducing strategies may be penalized. Under most circumstances, the ward's assets must be diversified. The guardian is obligated to spread portfolio investments across asset classes and potentially across global markets to both enhance performance and reduce risk. The possible effects of inflation must be considered as part of the investment strategy. The guardian shall either demonstrate investment skill in managing assets or shall delegate investment management to another qualified party.
PRUDENT PERSON RULE
An investment standard that considers the reasonableness of an investment based on whether a prudent person of discretion and intelligence, who is seeking reasonable income and preservation of capital, would make that investment.
QUALIFIED HEALTH CARE PROFESSIONAL
means a physician, psychologist, nurse practitioner or other health care practitioner whose training and expertise aid in the assessment of functional impairment.
RFP
means the request for proposal which is the process under State Procurement Code where an individual or non-state agency entity may be awarded a contract to provide services.
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.
SOCIAL SERVICES
These services are provided to meet social needs, including provisions for public benefits, case management, money management services, adult protective services, companion services, and other similar services.
SPRINGING POA
means the document contains language which indicates that it only becomes effective upon the incapacity of the principal. Thus, it is considered to be a springing power of attorney.
STANDBY GUARDIAN
is a person, agency, or organization whose appointment as guardian becomes effective without further proceedings immediately upon the death, incapacity, resignation, or temporary absence or unavailability of the initially appointed guardian.
SUBSTITUTE JUDGMENT
means the standard of decision making for guardians of adults that requires the guardian to ascertain what the decision would have been if the ward were able to make the decision themselves and then make the decision based upon that knowledge.
SUBSTITUTED JUDGMENT
The principle of decision-making that requires implementation of the course of action that comports with the individual ward's known wishes expressed before incapacity, provided the individual was once capable of developing views relevant to the matter at issue and reliable evidence of those views remains.
SUCCESSOR GUARDIAN
is a guardian who is appointed to act upon the death or resignation of a previous guardian.
SURROGATE DECISION MAKER
means the individual authorized by the Uniform Health Care Decisions Act to make health care decisions for a patient.
TEMPORARY GUARDIAN
means a person appointed by the court at an expedited hearing to serve as guardian for an alleged incapacitated person. The temporary guardian has specific powers granted by the court to prevent harm to the alleged incapacitated person during the time of his or her appointment.
TEMPORARY GUARDIANSHIP
means that when a petition for guardianship has been filed alleging that immediate and irreparable harm will result to the alleged incapacitated person if the normal notice and time requirements of a guardianship proceeding are kept, the court may appoint a temporary guardian for the alleged incapacitated person without notice to the alleged incapacitated person. The temporary guardianship shall last not more than sixty days although the court can extend the guardianship for an additional thirty days. A hearing shall be held to determine whether the guardianship will be permanent.
TESTAMENTARY GUARDIAN
means a guardian appointed by will or other writing of a parent or spouse guardian
TESTAMENTARY GUARDIANSHIP
means a guardianship that is passed from a spouse or parent guardian to another person through a will or other writing.
TREATMENT GUARDIAN
means a person, appointed by the court pursuant to the Mental Health and Developmental Disabilities Code (NMSA Section 43-1-15), who can make substitute decisions for an incapacitated person regarding mental health treatment, including the use of psychotropic medications, for a specified period of time, not to exceed one year per court appointment.
TREATMENT GUARDIANSHIP
means a form of guardianship tailored to grant the guardian authority to make decisions regarding mental health treatment for individuals determined by the court to lack the capacity to provide informed consent for mental health treatment.
"VISITOR" OR "COURT VISITOR"
means a person who is an appointee of the court who has no personal interest in the proceeding and who has been trained or has the expertise to appropriately evaluate the needs of the person who is allegedly incapacitated. A "visitor" may include, but is not limited to, a psychologist, social worker, developmental incapacity professional, physical or occupational therapist, an educator or a rehabilitation worker. WARD - A person for whom a guardian has been appointed. Synonyms include Conservatee, Disabled Person, Protected Person, and Incapacitated Person.
