Who Decides? The Unique 
Dynamics of Serving Survivors 
with Guardians 

Alicia Aiken, J.D. 
Director, Confidentiality Institute 

John Whitcomb, J.D. 
Monahan Law Group 



Learning Objectives 

This session will assist victim service providers to: 
-Recognize the basic concepts of adult guardianship. 
-Acquire simple strategies to determine whether an adult 

has a legal guardian and the form of the guardianship. 
-Identify some unique circumstances around 
confidentiality, informed consent, and VAWA. 
-Access assistance to ensure services are within the legal 
boundaries and survivor-centered. 



Guardianship 



Why Do We Need to Understand 
Adult Guardianship? 

-Increased outreach to survivors with disabilities & 
older adults 

-Need to be survivor-centered when survivor appears 
to have issues with mental capacity 

-Need to know who is able and allowed to give 
informed consent to share information 



Presumed to Be Competent 

-Individuals are presumed legally competent 
-This means that they are able & allowed to make 
decisions for themselves 
-…unless or until court determines otherwise 



Guardianship 

-“Guardians” for adults are ALWAYS court-appointed 
-“Wards” are individuals with guardians 
-Courts maintain ongoing oversight of guardian 
-Individual issues can be reviewed by the court 



Incompetency 

-This is a court’s decision! 

-If a person is found incompetent, it means that the 
court believes that the person is unable to make 
knowing and voluntary decisions and a guardian is 
appointed 



Types of Guardianship 

-The types of guardianship available in a state are 
subject to that state’s laws 

-Limited – court lists which decisions by guardian and 
which by person 

-General or “Plenary” – makes all decisions 

-Personal – empowered to make personal decisions 
and advocate for the individual 

-Financial or “of the Estate” (Conservatorship) – 
empowered to handle the person’s money and 
assets 



Why Are There Different Types of 
Guardianship? 

-Courts are required to choose least restrictive 
alternative when choosing a type of guardianship 

-A ward may have decision-making ability in one area 

(e.g. where to live) but be legally incompetent in 
other areas (e.g. finances) 

Length of Guardianship 

-Temporary – appointed to make immediate and 
often limited decisions 

-Permanent – appointed for life or until court orders 
person competent 

-Termination or Modification – court orders person 
regained competency, ends the guardianship or 
restores some decision-making to individual 



Services and Support Impacted by 
Guardianship 

-Responding to sexual violence: 
-Forensic sexual assault exam, medical care, mental 
health counseling, legal advocacy 
-Responding to domestic violence: 
-Legal advocacy, shelter, medical care, mental 
health counseling, divorce 
-Information sharing of any kind 



Impact of Guardianship on 
Providing Services 



Informed Consent to Services 

Policies and procedures for domestic and/or sexual 
violence services (e.g., support groups, shelter house 
rules) 

-Not statutorily defined medical or mental health 
treatment 

-Individual signing consent form for services is 
competent to give informed consent 



Informed Consent to Share Info 

-Giving actual permission 

-To take a specific action (i.e. disclose to housing that 
I have been the victim of domestic violence) 

-With an understanding of the information that will 
be shared, and 

-An ability to weigh the pros and cons of the decision 



Informed Consent is NOT… 

-Making the same decision you would make 
-Signing the form where told to sign 



How Do We Know If A Person Is A 
Court-Appointed Guardian? 

Ask to see the paperwork! 

-Some family members may believe they have legal 
guardianship when they don’t 



The Paperwork 

-Called “Letter of Guardianship” or “Letter of 
Administration” 

-Find out what it is called in your state 

-Will be issued by the court 

-If there is no paperwork, there is no guardian! 



These Are Not Guardianships 

-“Power of Attorney” means a competent individual 
gave someone legal authority to act on his/her 
behalf 

-Individual also keeps authority to make decisions 

-“Representative payee” means a person was chosen 
to receive federal disability benefits and pay bills 
and manage finances on behalf of a person with a 
disability 

-Parents of an adult with a disability are not legal 
guardians of the adult unless a court appoints them 



How Do We Know What Powers a 
Guardian Has? 

Ask to see the paperwork! 



How Do We Know if a Guardian Has 
Power to Get or Release Info? 

-“Plenary” or “General” guardian typically assigned 
to exercise the ward’s informed consent rights 

-Check paperwork in case exceptions articulated 

-If Limited Guardian, look at the description of 
decision-making power in the paperwork 



VAWA / FVPSA / VOCA 

-To ensure safety of victims of violence and their 
families: 

-Grantees shall protect the confidentiality and 
privacy of persons receiving services. 



VAWA / FVPSA / VOCA on Releases 

-Grantee shall not disclose individual client 
information without: 

-The informed, written, reasonably time limited 
consent, 

-signed by the person, or 

-in the case of legal incapacity, the guardian 

-If a person could receive services without consent of 
his/her guardian, then person signs release of 
information without guardian 



Your State Law 

-Find out how your state law addresses: 

-1) A ward’s right to access services without 
guardian consent or knowledge. 

-2) A guardian’s role in consenting to disclosure of 
information. 



Do We Need A Release To Give a 
Guardian Info? 

-A guardian with authority to make decisions about 
your services stands in the legal shoes of a survivor 
-So no release is needed to share information 
-A guardian without that authority is legally the same 
as any other third party 
-So a release is needed 



So, can we speak as freely with the 
guardian as we would with the 
survivor? 



Information Sharing with Guardian: 
Always Be Survivor-Centered 

-Give notice to the survivor 
-Discuss options with the survivor 
-Let the survivor see the records you are sharing 
-Have the survivor present when you discuss 

anything with the guardian 



What If Person Appears Unable to Understand 
The Information & Does Not Have a Legal 
Guardian? 

-Is it a communication problem rather than a 
cognition problem? 

-Can you adjust how you communicate? 

-Can the person identify a trusted person whose 
presence is necessary to facilitate understanding & 
decision-making? 



What If it is an Emergency Situation and 
There’s No Chance to See Paperwork? 

-Always be survivor-centered 
-Does survivor identify person as guardian? 

-Does survivor want person to receive information 
or help in decision-making? 

What if the Guardian is the Abuser? 

-VAWA/FVPSA/VOCA do not allow an abusive 
guardian to sign a release of information 

-Courts can investigate and remove guardians 

-Courts can issue orders protecting wards from an 
abusive guardian 

-Determine whether your state law requires a call to 
Adult Protective Services 

-Consult/Refer to local Protection & Advocacy legal 
program 



Some Real Life Scenarios 



What Should You Do If… 

A survivor is in your shelter & someone is banging on 
the door claiming to be the guardian? 
-What does law require? 
-What is good practice? 



What Should You Do If… 

A survivor with a guardian asks to have a meeting 
alone with advocate & guardian insists on being 
present? 

– What does law require? 
– What is good practice? 

What Should You Do If… 

A survivor is in the ER preparing for a SANE Exam and 
a guardian appears and objects? 

– What does law require? 
– What is good practice? 

The Process 

1. Is this actually a legal guardian with the right or 
authority? 
2. Is this guardian abusive to the ward? 
3. Can I educate the guardian about domestic / sexual 
violence & survivor-centered practice? 
4. How do I support the ward to know what is 
happening with information? 
5. Do we need outside help or technical assistance to 
handle this? If so, who do we contact? 

Resources 

National Clearinghouse on Abuse in Later Life 

ncall@wcadv.org 

NNEDV Safety Net & Confidentiality Institute 

safetynet@nnedv.org 
alicia@confidentialityinstitute.org 

National Disability Rights Network (and your state’s P&A) 

www.ndrn.org 



Questions or Comments? 



Thank you! 

Please take a moment to complete our online 
survey about this webinar. 

Please don’t forget to tune into the next End 
Abuse of People with Disabilities webinar, 
“You Report? Everyone Reports? Mandated 
Reporting Obligations When a Survivor Has a 
Disability” on October 17, 2017 at 2 pm ET. 
Click here to register.