This glossary is intended as a general, non-technical, guide to terms that may be used in a guardianship proceeding.
A
Adjournment
When a court date is postponed until a later date or time.
Administrator of an estate
A person appointed by the Surrogate’s court to manage and distribute the estate of a deceased person who died without a will.
Advance Directive
A term to describe various legal documents outlining a person’s health care decisions for when they are unable to make such decisions themselves. This includes a Health Care Proxy, Living Will, a Do Not Resuscitate (DNR) or Do Not Intubate (DNI) Order, and MOLST form.
Affidavit
A written statement of facts based on personal knowledge or information and belief.
Affirmation
A formal declaration that a statement is true. Generally used where the person objects to taking an oath.
AIP (Alleged Incapacitated Person)
The person who the petitioner (the person starting the case) believes needs a guardian. Sometimes referred to as the subject of the guardianship proceeding or the respondent. The term “alleged” is used until a judge makes a decision on the case. If the AIP is found by the judge to be incapacitated and needs a guardian, they will be called the IP (incapacitated person).
Annual Report/Accounting
A yearly report by a guardian giving an accounting of all property and finances and the status of the well-being of the person with a guardian. It covers the calendar year (Jan-Dec) and is filed with the court, at the latest, by May of the following year.
Article 81 of the Mental Hygiene Law
A New York State guardianship law that permits the court to appoint a guardian to manage the personal and/or financial affairs of a person who cannot manage for themselves and may be at risk or in danger.
B
Bond
In a guardianship case, a bond is a form of insurance that makes sure IP receives any money lost because of the guardian’s actions or mistakes. The court will often require a bond in cases where a guardian has control over significant income or assets.
C
Certified copy
A copy of a document signed by a government official who has the original. In guardianship cases, you may want a certified copy of the guardianship order and judgment from the clerk. People may ask to see a certified copy as proof that the guardianship is legitimate and in effect.
Commission
Official document from the county clerk authorizing the guardian to carry out the duties and powers listed in the guardianship order and judgement. Guardians can show others the commission along with the guardianship order to prove they can make decisions on behalf of the person with the guardian.
Compliance Conference
Court appearance to update the court on the status of the case or when the guardian has not complied with their duties. Sometimes these will occur with the judge, but may be with other court staff such as a court attorney or referee.
County Clerk
Keeps all legal files and reports on guardianship cases in that county and certifies documents, such as the commission.
Court Evaluator
A professional appointed by the court to investigate at the start of a guardianship case. A Court Evaluator will interview the AIP and people close to them and has the authority to ask for documents. They file a report with their recommendations which the judge uses to help make a decision on whether the person is incapacitated, needs a guardian and who should be the guardian.
Court Examiner
A person named in the judge’s final order and judgment appointing a permanent guardian. The court examiner reviews all reports submitted by the guardian to make sure the guardian is taking care of the incapacitated person and following the judge’s orders. A court examiner can start a compliance proceeding (legal case) to get a guardian to perform their duties or seek removal and/or replacement of the guardian.
D
Decision
The decision of the judge.
Dismissal
A decision by the judge to end the proceeding. A dismissal “with prejudice” means the petitioner (person bringing the case) cannot try to bring the same case to court. A dismissal “without prejudice” means they can.
DNR/DNI (Do Not Resuscitate/Intubate)
A person, or someone on their behalf, can make a DNR/DNI request that doctors must follow if the person experiences respiratory or cardiac arrest. DNR requests no CPR (chest compressions, cardiac drugs, or breathing tube). DNI means chest compressions and cardiac drugs may be used, but no breathing tube.
E
Estate
Total property (money, real estate, other assets) belonging to a person.
Executor of an estate
A person appointed in a will to carry out the wishes and directions stated in the will.
Expert witness
A witness with extensive knowledge and experience in a particular area who can give a professional opinion to help the court understand specialized information.
F
FHCDA (The Family Health Care Decision Act)
A law stating who can make medical decisions if a patient lacks capacity to make such decisions and does not have someone appointed to make them on their behalf. Those covered under this law include any appointed guardian, certain family members, and close friends.
Final Report/Accounting
Before a guardian is discharged, they must submit a final report that covers all activity throughout the guardianship. Where there is a successor (replacement) guardian appointed, the Report/Accounting includes financial activity and an update on the IP’s health and life condition. If the guardianship ends because the IP passed away, the Report/Accounting is only about financial activity. Before the guardian is discharged, any remaining assets must be transferred according to the court’s directions—that may be to a successor guardian or, if the IP passed, to the administrator of the estate or the executor.
Functional Limitations
Refers to the behaviors or conditions of a person which limit their ability to meet their needs.
G
Guardianship
Guardianship is a legal arrangement where a court grants a person or organization the legal right to make certain decisions for another person who is unable to make decisions for themselves.
Guardian ad Litem (GAL)
A GAL is appointed by a judge to advocate on behalf of a minor child, someone legally incompetent, or someone who cannot understand the legal proceeding or defend their rights. The GAL’s appointment lasts only for the duration of the court case. Their legal powers are much more limited than those of an Article 81 guardian.
H
Health Care Proxy
A document where one person gives another trusted person the authority to make health care decisions on their behalf should they not have the capacity to do so themselves in the future.
Hearing
At an Article 81 guardianship hearing, the judge listens to evidence showing why a person does or does not require a guardian to be appointed for them. This may include witnesses who know the AIP well, experts, and others who can speak to the AIP’s abilities, including the AIP themselves. The court evaluator will make a recommendation about whether a guardian should be appointed. The judge sometimes asks questions. Using this information, the judge decides if the person is incapacitated and needs a guardian, who the guardian should be, and what the guardian’s powers should be. An AIP can also request that this hearing take place before a jury.
I
Index number
The number assigned to each case under the court’s filing system. It is used to easily identify the case and can be found on the top right-hand side of every court document. The person filing papers to start a case must purchase an index number at the clerk’s office (the fee for the index number can be waived in certain situations).
Initial Report
The first report required by an appointed guardian. It is due 90 days after the commission is granted. This report is an overview of the IP’s personal and financial situation at the beginning of the guardianship and of the guardian’s actions to address the issues affecting the IP.
Injunction
An injunction is a legal order that forbids or directs a certain act by a party. You can request the court grant an injunction against another person or entity. For example, the court may grant an injunction to prevent the sale of an AIP’s property, prevent use of a bank account, or to temporarily stop an eviction.
IP (Incapacitated Person)
The legal term for a person found to be incapacitated by the court and who was appointed a guardian. Sometimes referred to as a “ward.”
Interim/Temporary Guardian
A guardian appointed temporarily before the judge makes a final decision or before the permanent guardian is in place. Some people call these Interim Guardians and others call them Temporary Guardians.
J
Jurisdiction
The power of the court to hear a case.
L
Lay Guardian
Term used to describe a guardian who is a family member or friend. A “nonprofessional” guardian.
M
Marshaling
Locating and taking charge of any assets belonging to the AIP or IP.
MHL (Mental Hygiene Law)
Article 81 of the Mental Hygiene Law gives the procedure for appointing a guardian and states the powers the judge can grant to the guardians and the duties demanded of guardians.
MHLS (Mental Hygiene Legal Service)
Mental Hygiene Legal Service (MHLS) is a New York State agency responsible for representing, advocating and litigating on behalf of individuals receiving services for a mental disability. In Article 81 cases, MHLS may be appointed as court evaluators or counsel for the AIP.
MOLST (Medical Orders for Life-Sustaining Treatment)
Form that can be used to record and honor the wishes of a patient regarding life-sustaining treatment. The wishes stated are very specific and can include things like the use of antibiotics, feeding tubes, etc.
Motion
Oral or written request made to the judge asking for something specific in a case. An ex parte motion is an oral or written request to the judge that occurs without notifying the opponent.
N
Notice
Within the context of a guardianship case, notice is a legal document used to inform certain persons (parties) that a guardianship case has been filed or something is happening in a case. Sometimes the court will request a party to send official notice related to other parts of the process as well.
Notice of Pendency/Lis Pendens
Notice filed with the public registry office about a piece of real estate noting that the ownership or title may be linked to a current court case.
O
O&J (Order and Judgment)
Document signed by the judge containing their decision on a guardianship case. It includes the name of the guardian, court examiner, list of granted powers, general duties, and includes a specific list of fees decided by the judge.
Oath and Designation
Sometimes just called the “Designation,” this legal document gives the county clerk the power to accept legal papers on behalf of the guardian, in case the guardian cannot be found. An Oath and Designation also promises the court that the guardian will follow the Order and Judgment faithfully, honestly, and with care, and diligently perform the duties and obligations of a guardian. A guardian must sign the Oath and Designation in the presence of a notary public and once signed, file it in the county clerk’s office before receiving their Commission document.
OCA (Office of Court Administration)
Oversees the administration and operation of the New York State Unified Court System.
Order to Show Cause (OSC)
An Order to Show Cause (OSC) is a type of motion that is often used for emergency or time-sensitive situations. In Article 81 guardianship, an Order to Show Cause (OSC) is filed with the petition to start a guardianship case. It asks the judge to set a date and time for a hearing to appoint a guardian and leaves space for the judge to appoint a court evaluator and/or an attorney for the AIP. The OSC can ask for immediate action, such as appointing a temporary guardian or an injunction staying (pausing) a pending eviction, foreclosure or sale of property.
P
Part 36 List
A list of professionals trained and qualified for court appointments including, but not limited to, guardians, court evaluators, court examiners, attorneys for an alleged incapacitated person, guardians ad litem, and referees. This list is kept by the court and must follow the Part 36 Rules of the Chief Judge.
Petition
A petition is a legal document used to ask the court to address a legal problem. In Article 81 guardianship, the petition outlines why the person meets the standard for needing a guardian, what powers the guardian should have, and suggests who could be a guardian for the AIP. A petition is filed with an Order to Show Cause to start a guardianship case.
Petitioner
In an Article 81 guardianship, the person who starts the guardianship process by asking the court to appoint a guardian. A petitioner can be anyone concerned with the welfare of an individual, including a relative or friend, an institution like a hospital or nursing home, Adult Protective Services, or even the person who may need a guardian themselves.
PING (Person in Need of a Guardian)
Term used for a person who has been appointed a guardian based on their own consent, not due to incapacity.
Powers
The decisions and actions a guardian can take on behalf of an IP. A guardian has only those powers necessary to address the needs of the individual. These powers can be changed, added, and removed during the duration of the guardianship when a request is made to the court.
Power of Attorney (POA)
A legal document where a person gives another person/entity, known as an agent, power to do certain actions on their behalf. The person giving this power can continue doing these actions as well—it doesn’t limit their own personal decision-making. POA documents are often used to give an agent the power to manage finances and property. In New York, a POA is not used to make health care decisions.
R
Real Property
Real estate – house, land, buildings, etc.
Referee
A referee is someone assigned by the court to review the final accounting for a guardianship. In some counties, the term is also sometimes applied to court employees (known as Court Attorney/Referees) tasked with overseeing guardianship compliance.
Representative Payee
A person or an organization that receives and manages benefits (such as Social Security) on behalf of another person.
Respondent
In an Article 81 guardianship proceeding, this is the Alleged Incapacitated Person.
S
Service
Notifying people of a court proceeding or providing a copy of a document filed as required by law. Service can be done by delivering papers in person, by mail, and sometimes by e-mail, fax, or other methods. The judge will tell the petitioner who to notify and in what way. For more information about service: https://nycourts.gov/courthelp/goingtocourt/service.shtml
SNT (Supplemental Needs Trusts)
Trusts created for a person with a documented disability and is less than 65 years old, allowing access to their money while still qualifying for benefits, such as Medicaid and Supplemental Security Income. (See Trust below).
Standby guardian
A person appointed in the Order and Judgment Appointing Guardian as successor guardian if the guardian is unable to serve, resigns, or is removed.
Statement of Death (Notice or Report of Death)
Written notice the guardian must send to the court examiner and other required persons and file with the clerk reporting the death of an IP. This notice should include a copy of the death certificate and, the place of death and other information.
Successor Guardian
A person appointed as guardian after the current guardian is discharged for any reason.
Supported Decision-Making (SDM)
People can make decisions using informal or formal support of trusted people in their lives. Formal versions of this arrangement generally involve an agreement surrounding how the support will be used to make certain kinds of decisions.
Surrogate’s Court
Surrogate’s Court hears cases related to the property of a person who has died. Surrogate’s Court also hears Article 17A guardianship cases for people with intellectual and developmental disabilities.
T
Temporary Guardian
A temporary guardian can be appointed at the beginning of, or any time during, a proceeding if the AIP is shown to potentially be in immediate danger before a final decision on guardianship is made. This appointment usually includes limited powers and is intended just to address the specific time-sensitive danger. If a judge appoints a temporary guardian before formally deeming the person incapacitated, they also must appoint an attorney for the AIP.
Temporary Restraining Order
Court order for a brief time stopping someone from doing, or continuing to do, something.
Trust
A legal arrangement where property, including money, is administered by someone (called the trustee) for the benefit of another (called the beneficiary). Usually, the beneficiary does not have direct access to the property/money and there are restrictions on how the property or money can be used.
W
Ward
Term sometimes used in legal documents to refer to the person who has been appointed a guardian. Referred to in the Art. 81 law as /Incapacitated Person (IP). It may also refer to a “Person in Need of a Guardian,” (PING). (See “PING” above.)