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Appendix IV: Definitions Related to Guardianship Cases

APS-IH / May 2011

Application (petition) — A written request to a court that it institute a guardianship for a person.

Attorney Ad Litem — An attorney appointed by the court to represent and advocate on behalf of a proposed ward, an incapacitated person, or an unborn person in a guardianship proceeding. Appointment of an attorney ad litem for the proposed ward is mandatory in guardianship proceedings. The attorney ad litem must advocate the wishes of the ward, regardless of whether the attorney ad litem thinks those wishes are in the best interest of the ward.

Bond — An insurance policy that protects the estate of a ward in the event of improper or illegal use of a ward’s estate.

Child — A biological or adopted individual younger than 18 years of age. (Also see “emancipated minor” below.)

Citation — Required notification that a lawsuit has been filed. Citation must be completed as required by the statute or the lawsuit fails.

Court or probate court — A county court in the exercise of its probate jurisdiction, a court created by statute and authorized to exercise original probate jurisdiction (county court at law or probate court), or rarely a district court exercising original probate jurisdiction in contested matters.

Court investigator — In a guardianship proceeding, a court investigator is a person appointed by the court whose duties include investigating the circumstances alleged in the application, supervising the court visitor program, and investigating complaints about existing guardianships. Appointment of a court investigator is required in statutory probate courts.

Emancipated minor — A person under 18 years of age who has the power and capacity of an adult. This includes a minor who has had the disabilities of minority removed by a court of law or a minor who, with or without parental consent, has been married. Marriage includes common-law marriage.

Estate — The real (land or oil and gas) property and personal property of a ward or deceased ward.

Ex Parte — Indicates that an application has been filed by one litigant and a hearing held without notice to the other litigant, usually in an emergency.

Guardian Ad Litem — A person who is appointed by a court to represent the best interests of an incapacitated person in a guardianship proceeding. This individual is usually a non-lawyer who looks at the best interest of the proposed ward, regardless of the proposed ward’s own wishes. Appointment of a guardian ad litem is optional.

Guardian of the estate — The personal representative given responsibility and authority only for managing the assets of the ward (paying bills, selling property, and managing finances).

Guardian of the person — The personal representative given responsibility and authority only for the health, well-being, and personal needs of the ward, not for his financial affairs.

Guardianship program — A local, county, or regional program that provides guardianship and related services to an incapacitated person or other person who needs assistance in making decisions concerning the person’s own welfare or financial affairs.

Incapacitated person — An adult individual who, because of a physical or mental condition is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs; a missing person; or, a person who must have a guardian appointed to receive funds due the person from any governmental source. (A minor is also a legally incapacitated person.)

Minor — A person who is younger than 18 years of age and who has never been married or who has not had the person’s disabilities of minority removed for general purposes.

Permanent guardianship — This type of guardianship gives the guardian full or limited authority over a client, depending on the level of incapacity of the ward. The guardianship remains in place indefinitely unless terminated by the court, subject to yearly review.

Personal property — All property owned by the ward that is not land, a house or oil, gas, or other mineral rights. This includes debts owed to and by the ward, a cause of action to sue for damages, cash, and so on.

Personal representative or representative — Includes a guardian and a successor guardian.

Property — Includes both real and personal property.

Proposed ward — A person alleged to be incapacitated in a guardianship proceeding.

Real property — Land owned singularly or with others, the house on the land, oil, gas, or other mineral properties.

Service — Legal term used for properly delivering a summons, subpoena, or citation upon a person in a legal proceeding. The type of service required depends on the applicable statute. Service includes personal service by the sheriff’s office, by a process server, and by certified mail, return receipt requested, or by fax. Proper service is determined by the regional attorney.

Temporary guardian — A guardian appointed for up to 60 days when there is imminent danger to the person or to the estate of the ward.

Venue — The court which has jurisdiction to try a case, usually based on location of the ward in guardianship cases.

Ward — A person for whom a guardian has been appointed by a court.

Waiver — The act of voluntarily relinquishing a right which a person has, most often a waiver of citation (or notice) of a lawsuit or a hearing.

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