GLOSSARY OF TERMS
Following are some words and phrases commonly used when discussing guardianships:
Advance Health Care Directive - An individual instruction or a power of attorney for health care made, in either case, while the individual has capacity. (See New Mexico Uniform Health Care Decisions Act, NMSA 1978, Section 24-7A-1.)
Advocate - A person who assists, defends, or pleads, or prosecutes for another. (See Black's Law Dictionary.)
Agent - An attorney-in-fact under a durable or nondurable power of attorney, an individual authorized to make decisions concerning another's health care and an individual authorized to make decisions for another under a natural death act. (See New Mexico Probate Code, NMSA 1978, Section 45-5-501 (1995).) Also, an individual designated in a power of attorney for health care to make a health-care decision for the individual granting the power. (See New Mexico Uniform Health care Decisions Act, NMSA 1978, Section 24-7A-1.)
Alleged Incapacitated Person - Individual for whom a guardianship proceeding has been initiated. (May also be called the proposed ward.)
Best Interest - That 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 of the effects of one's acts. (See Black's Law Dictionary.)
Care/Case Management - A person who provides client-centered services to the elderly and disabled, and their families. For more details, see Alternatives to Guardianship.
Competency - The mental ability to understand problems and make decisions. (See Black's Law Dictionary.)
Conservatee - A person for whom a conservator has been appointed by the court.
Conservator - A person appointed by a court to manage the property or financial affairs, or both, of an incapacitated person. (See New Mexico Probate Code, NMSA 1978, Section 45-1-201 (1995).)
Court Visitor - A person who is an appointee of the court who has no personal interest in the proceeding for guardianship or conservatorship 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 and occupational therapist, an educator and a rehabilitation worker. (See New Mexico Probate Code, NMSA 1978, Section 45-5-101 (1993).) The visitor interviews the alleged incapacitated person, family members, caregivers, and the proposed guardian and files a report to the court as to the need for guardianship and the appropriateness of the proposed guardian.
Dementia - A category of disorders characterized by the development of multiple cognitive deficits (including memory impairment) that are due to the direct physiological effects of a general medical condition, to the persisting effects of a substance or to multiple etiologies (e.g., the combined effects of cerebral vascular disease and Alzheimer's disease.) (See DSM-IV.)
Developmental Disability - A severe, chronic disability of an individual 5 years of age or older that:
A. Is attributable to a mental or physical impairment or combination of mental and physical impairments;
B. Is manifested before the individual attains age 22;
C. Is likely to continue indefinitely;
D. Results in substantial functional limitations in three or more of the following areas of major life activity:
1. Self-care
2. Receptive and expressive language
3. Learning
4. Mobility
5. Self-direction
6. Capacity for independent living
7. Economic self-sufficiency; and
E. Reflects the individual's need for a combination and sequence of events of special, interdisciplinary, or generic services, supports, or other assistance that is of lifelong or extended duration and is individually planned and coordinated.
Functional Impairment - An impairment that is measured by a person's inability to manage his personal care or the person's inability to manage his estate or financial affairs, or both. (See Ne Mexico Probate Code, NMSA 1978, Section 45-5-101 (1995).)
Guardian - A person appointed by a court to make personal and health care decisions for an incapacitated person who is impaired because of mental illness, dementia, physical disability or injury, or substance abuse. Personal care decisions include, but are not limited to, medical care, nutrition, clothing, shelter, hygiene, education and safety. A guardian's powers should include only those limitations and restrictions on the incapacitated person's decision-making authority as are necessary. All guardians must file an annual report with the court.
Corporate Guardian - A private agency authorized to serve as a guardian for an incapacitated person pursuant to court order.
Full (Plenary) Guardian - A person appointed to make all major decisions regarding the incapacitated person's care and safety. Under New Mexico law, an incapacitated person retains all human, civil and constitutional rights. A guardian has the same authority over an incapacitated person as a parent has over a minor child, although they are not responsible for supporting them financially.
Limited Guardian - A guardian who is appointed by the court to exercise the legal rights and powers specifically designated by a court order when the court has determined that the incapacitated person lacks capacity to do some, but not all, of the tasks necessary to care for his or her person or property. The court specifies the areas in which the incapacitated person requires assistance, and the guardian has authority in those areas only. All other decision-making authority is retained.
Temporary Guardian - A guardian whose authority is temporary (maximum 60 days unless extended by the court) and usually only appointed in an emergency or when the incapacity is expected to be temporary.
Testamentary Guardian - A person named in a will of a legal guardian or parent as the person to serve as guardian after the legal guardian or parent dies. Court approval of the appointment of the person named as guardian is required.
Treatment Guardian - A term used in the New Mexico Mental Health and Developmental Disabilities Code to mean a person who makes a decision on behalf of a client who does not have the capacity to give informed consent to psychotropic medication, psychosurgery, convulsive therapy, experimental treatment or behavior modification program involving aversive stimuli or substantial deprivations. The treatment guardian shall make a decision based on whether the treatment appears to be in the client's best interest and is the least drastic means for accomplishing the treatment objective. The treatment guardian only has the authority set forth in the mental health code, unless the treatment guardian has also been appointed as guardian under the guardianship statutes. Treatment guardians are appointed under the Mental Health Code rather than the Probate Code, and it involves different procedures.
Guardian ad Litem - An attorney appointed by the court to represent and protect the interests of a minor or an incapacitated person in connection with litigation or any other court proceeding. (See New Mexico Probate Code, NMSA 1978, Section 45-1-201 (1995).)
Incapacitated Person - Any person who demonstrates over time either partial or complete functional impairment by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that he is unable to manage his personal affairs or he is unable to manage his estate or financial affairs or both. (See New Mexico Probate Code, NMSA 1978, Section 45-5-101 (1995).)
Incapacity - A person's lack of ability to understand the nature of the effects of their actions.
Interested Person - Any person who has an interest in the welfare of the person to be protected under the article of the New Mexico Probate Code dealing with the protection of persons under a disability. (See Ne Mexico Probate Code, NMSA 1978, Section 45-5-101 (1995).)
Least Restrictive Form of Intervention - The guardianship or conservatorship imposed on the incapacitated person must represent only those limitations necessary to provide the needed care and rehabilitative services, and that the incapacitated person enjoy the greatest amount of personal freedom and civil liberties. (See New Mexico Probate Code, NMSA 1978, Section 45-5-101 (1995).)
Letters of Guardianship/Conservatorship - Formal document issued by the court granting the guardian or conservatorship authority to act on the incapacitated person's behalf.
Petition - A formal, written request presented to a court. For example, in a guardianship or conservatorship proceeding, a petition is the document filed to initiate the process for appointment of a guardian or conservator.
Power of Attorney - A document created by an individual with capacity (the "principal") that gives someone else ("the agent") the legal authority to act on their behalf, as their attorney-in-fact.
Durable Power of Attorney - A power of attorney that remains in effect even after the person who created it becomes incapacitated. Defined in New Mexico Probate Code, NMSA 1978, Section 45-5-501 (1995).) For more information on durable powers of attorney, see Alternatives to Guardianship.
Limited Power of Attorney - A power of attorney that gives legal authority to handle only certain areas of a person's life, such as for sale of a specific parcel of real estate.
Springing Power of Attorney - A power of attorney that is created by a person who has capacity but only comes into effect when they become incapacitated.
Principal - A person who creates a power of attorney giving someone else the legal authority to act on their behalf.
Qualified Health Care Professional - A physician, psychologist, nurse practitioner or other health care practitioner whose training and expertise aid in the assessment of functional impairment. Their duties include examination and evaluation of the alleged incapacitated person and submission of a report to the court describing the nature and degree of their incapacity, if any, and their level of functioning. (See New Mexico Probate Code, NMSA 1978, Section 45-5-501 (1995).)
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. (For more information on representative payees, see Alternatives to Guardianship.)
Restoration of Legal Capacity - An incapacitated person can be restored to full legal capacity if the court becomes satisfied that they no longer need a guardian. The incapacitated person can initiate a review of guardianship status by sending an informal letter to the judge.
Substituted Judgment - The principle of decision-making which requires implementation of the course of action which comports with the individual's known wishes expressed prior to the appointment of the guardian or conservator, provided the individual was once capable of developing views relevant to the matter at issue and reliable evidence of these views remains. Current opinions and desires of the individual shall be examined and are relevant to a determination of their views prior to appointment of the guardian.
Surrogate - An individual, other than a patient's agent or guardian, who is authorized under the New Mexico Uniform Health Care Decision Act to make health care decisions for a patient when no written advance directives are available. The priorities for surrogates under New Mexico law are: (1) patient's spouse; (2) significant other in long-term relationship with patient; (3) adult child; (4) parent; (5) adult sibling; then (6) grandparent. If none of these are available. health care decisions can be made by an adult who is familiar with the patient's personal wishes and values and has exhibited special care and concern. (See New Mexico Uniform Health Care Decisions Act, NMSA 1978, Section 24-7A-1.))
Trust - An estate planning tool in which a person designates someone (a "trustee") to handle their assets upon their incapacity or death. Trusts should only be set up with the assistance of a licensed New Mexico attorney.
Revocable (Living) Trust - Because a person is able to name someone (a "trustee") to act for them in the event of their incapacity or death, it can be an alternative to guardianship and/or probate.
Special Needs Trust - A trust can be established for a disabled person who is receiving SSI benefits without jeopardizing their eligibility for such benefits. The funds are not paid directly to the disabled person, but are paid to others on their behalf.
Trustee - One who, having legal title to property, holds it in trust for the benefit of another and owes a fiduciary duty to that beneficiary. Generally, a trustee's duties are to convert to cash all debts and securities that are not qualified legal investments, to re-invest the cash in proper securities, to protect and preserve the trust property, and to ensure that it is employed solely for the beneficiary in accordance with the directions contained in the trust instrument. (See Black's Law Dictionary.)
Ward - A person for whom a guardian has been appointed. (See New Mexico Probate Code, NMSA 1978, Section 45-5-101 (1995).