August 15 , 2017 

2:00 p.m. EDT 


>> SHANNON SCULLY: Good afternoon, everyone. This is Shannon Scully with the Vera 

institute of justice. We'll give one more minute for folks to get logged in and set up. 
We'll be back in just about two minutes. 

>> SHANNON SCULLY: All right. Good afternoon, everybody. Again, this is Shannon 
Scully with the Center for Victimization and Safety at the Vera Institute of Justice. I would like 
to welcome you to today's webinar, he decides, 

I would like to welcome you to today's webinar - "Who Decides? The Unique Dynamics 
of Serving Survivors with Guardians" - where we will be discussing how to best serve survivors 
with guardians. We are pleased to bring you this as part of our End Abuse of People with 
Disabilities webinar series. 

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Let's begin. 

Today we are going to look at survivors of -- how to best serve survivors who have 
guardians. For some people with the disabilities, a court 

has appointed them a guardian to help them make important decisions. While the 
rules for guardianship vary by state, there are some considerations to keep in mind when 
serving survivors with guardians. This webinar is designed to provide information on what 
service providers should consider when service users have a guard one. 

This afternoon we're appreciative to have with us Alicia Aiken and John Whitcomb. 

Ms. Aiken worked directly with violence survivors as a legal services attorney for over 15 
years. She was the director of training, pro bono, and client support services for the 
150-person team at LAF, Legal Assistance Foundation, and has been an instructor on the legal 
issues surrounding domestic violence and sexual assault for the University of Michigan, DePaul 
college of law, American Bar Association and National Network to End Domestic Violence, as 
well as numerous state and local nonprofit programs. 

Ms. Aiken received her undergraduate and law degrees from the University of Michigan 
and has practiced in Illinois, Vermont and Michigan. 

In 2003, Ms. Aiken was awarded LAF's Equal Justice Award, and she was honored with 
the Chicago Foundation for Women Founder's Award in 2006. 

Mr. Whitcomb brings over 25 years of experience advocating for individuals with 
disabilities, children, and older adults. He focuses his practice in guardianship and probate, 
mental health law, risk management, elder law, civil rights, and child welfare. 

Mr. Whitcomb is regularly asked to speak with organizations throughout Illinois on 
topics such as guardianship, advance directives, the Americans with Disabilities Act, the Illinois 
mental health and developmental disabilities code, ethical services and the nature of consent 


for people with disabilities, and child abuse and neglect litigation. 

Prior to joining the law firm Monahan Law Group, Mr. Whitcomb was a senior attorney 
with Equip for Equality, Illinois's protection and advocacy agency for people with disabilities, 
where he specialized in litigation involving contested matters of confidentiality, guardianship, 
parenting rights, residential services, and government accommodations for seniors and 
individuals with disabilities. 

Mr. Whitcomb received his undergraduate degree from Oberlin College and his law 
degree from Tulane Law School New Orleans. 

I'd like to welcome both Alicia and John to this presentation, and folks, I'm now going to 
turn it over to you so we can get this going. 

>> ALICIA AIKEN: Thank you very much. I appreciate it. I'm so appreciative of Vera 
for bringing us in to do this and tackling this topic. This is an exciting event for us because 
John Whitcomb and I have known each over for 20 years, have had many conversations about 
these issues but it's the first time we get to teach about them together. Thank you to 
everyone on the webinar for participating with us. 

Let's just jump right into it, and I first want to frame what it is we're hoping to 
accomplish today. It is to assist victim service providers to recognize what are the basic 
concepts of adult guardianship. Guardianship is a word that gets thrown around a lot, 
including by the people you might be serving, but you want to walk into any situation having a 
really clear understanding of what it might actually mean and we're going to give you some 
homework assignments about what you want to go and learn under your state's law or your 
jurisdiction's law to make sure you understand how things are working locally. We'll give you 
the tools to ask the right questions so that you can find your answers locally. 

We're going to give you some simple strategies to figure out whether somebody, an 
adult, does, in fact, have a legal guardian or in some states it's called a conservatorship and 
what is the form of that guardianship. We'll take a look at some of the unique circumstances 
around confidentiality, informed consent, and the federal law that applies to most victim 
service providers receiving either against women act funds,. They all have a similar approach 
to what is the confidentiality of an individual and we'll look at how those laws assess the 
situation when somebody has a legal guardian. 

Then we want to help you to be able to access assistance locally to make sure that you 
can provide services to folks who have guardians, that you can do it well, and within the bounds 
of survivor-centered best practice. 

So we start with just a really simple question is why do we need to understand adult 
guardianship to do survivor services. The basic reasons are I will tell you that unfortunately, as 
I work around the country, working on confidentiality and privacy issues, some people will say, 
we just don't serve people with guardians because we don't know what to do. Some people 
just don't do it but then don't be want to admit they don't do it. It's obviously not okay to say 
to somebody you have been a victim of domestic violence, sexual violence or other violent 
crime but we're not going to help you because we're confused by your legal status. Duty is on 
us as providers to understand what we can do and how we can do it well so that people who 
are in need of help can get it. 

We also want to make sure that when we're giving them help we're doing it in a way 
that is survivor centered. It can be tempting to lose track of being survivor centered in the 


work if we think somebody might have capacity issues, and so we don't want to fall into a trap 
of treating people as if they aren't actually adults, as if they don't actually have some autonomy 
when they're responding to the violence in their lives. And we want to make sure we know 
who is able to give consent and who we are allowed to share information with. 

So with that I'm going to turn it over to John and give him an opportunity to walk all of 
us through some of the basics of competency and guardianship. 

>> JOHN WHITCOMB: So, to be begin with, the word "competent" is used in a variety of 
different areas, and the issue is, is an individual presumed to be legally competent? And the 
answer to that is without a court order, and we'll re beat this again, without a court 
determination, that somebody is determined to be legally competent until they -- when they 
turn 18 years old. So in my practice when I have represented people with disabilities, the 
issue is, they say, well, my son or daughter is in high school until they're 22 and they're a person 
with an intellectual disability so, of course, they're not competent. And the answer to that is, 
do you have a court order? And the reason they're using the age 22 is that's the special ed 
law which has nothing to do with competency. I've heard people tell me, oh, their doctor says 
they're not competent. And I said, the answer to that is have they told a court that they don't 
have capacity? Because only a court can determine that somebody is not competent to make 
decisions. And so the issue is, has the person who is saying that they're -- the person that 
you're dealing with is not competent, do they have a court order that says that they have a 
guardian or not? And has that been determined by a court? So unless there's court papers 
saying that somebody is not competent, they are presumed to be competent as soon as they 
turn 18, regardless of whether they have a disability, regardless of whether they're able to 
communicate with somebody else. The law determines that you are competent at age 18 
unless a court determines that you are no longer competent. 

Now, Alicia mentioned that, you know, I'm going to be using the words "guardian" and 
"guardianship" instead of "conservator" and "conservatorship" because that's what Illinois 
where I practice uses, but if there's any issue regarding the specific terms, they are more or less 
used interchangeably. So guardians for adults are always court appointed. You can never 
say, "Well, I was the parent, so now I am -- I was the parent know now I'm the guardian." A 
court of law will have to determine that you have a guardian and there will be a process in 
which that's done. The word "ward" is an old word. Illinois is starting to not use it and uses 
a word I'm not happy with is "people with disability," but wards are individuals with guardians. 
So if somebody says that I have -- I am the guardian, and my loved one is my ward, that is 
saying that they are the guardian as well. 

In all states courts maintain an yawn going oversight of guardians, and that what means 
is that normally, especially for wards with money, they come back to the court and report on 
them yearly. For people who just have guardians of the person, they also do reports to the 
court to say where that person is living and how they're doing, and individual issues can be 
reviewed by the court at any time. So if there's an issue with housing, if there's an issue with 
medical care, those can be reviewed by the court, because in all circumstances the court is the 
ultimate guardian of somebody, meaning that the court has appointed somebody to be the 
guardian for another person, and, therefore, the court controls those decisions, and they're 
giving the ability to make those decisions to the guardian, but ultimately it's the court's 
responsibility that those decisions are made correctly. 


So, in order to determine incompetency, there is a court decision, and normally that 
happens when there's a petition filed and a doctor's opinion is also submitted to the court, and 
if the person agrees that they need a guardian and they agree to the person who is going to be 
their guardian, the court will appoint that person, normally only after reviewing it -- the papers 
that have been filed, but if the person doesn't agree, there will be a hearing, which is just like 
any other trial, and once that occurs, the person is appointed a guardian if the court determines 
that it's necessary and that person will be making the decisions for that person in all areas that 
the court grants. And the reason why I'm sort of saying that it's not -- it's in all areas that the 
court grants, there's different types of guardianship, and those -- and those are on the next 
slide. 

The types of guardianship, most states have a provision that says that guardianship 
should only be to the point necessary to protect the person, and, therefore, the courts are 
mandated to review whether some people are able to make some decisions. So there are 
different types of guardianships because of that. A plenary guardian means generally that 
they can make all decisions. A limited guardian has specific lists in which the guardian can 
make. So if we look at the areas guardianship, there's two different areas. There are 
personal, which the big areas under personal are medical decisions and the ability of where you 
live. So those are the large areas under personal decisions. So that would be a guardian for 
somebody going to the doctor or a guardian for going to where somebody's living 
independently or nonindependently in assisted living. The financial guardian or guardian of 
the state is to handle the person's money and assets, and that can be anywhere from their SSI 
check or some other type of money from VA pensions or that type of guardianship, or 
specifically investments in terms of dealing with investing money, moving money, paying for 
bills, trusts, those types of things are also handled in the -- in the guardianships of the state or 
the financial guardianship. 

So as I stated, courts are required to do the least restrictive alternative, and they can 
choose based on the evidence before them that some people are able to make decisions 
regarding where they live, who they associate with, but they're not capable of higher level 
thinking and, therefore, they shouldn't make doctors of decisions or medical decisions for them 
or whether they can make general decisions but they will have to have assistance with 
somebody else who is going to be their guardian, that they have the right to be informed of 
what their medical -- their medical condition is, what the treatment -- the prescribed treatment 
is, what the specify -- specifically what the side effects of the medication they're taking, but the 
information will be automatically shared with the guardian and the guardian will have to take 
input for the person -- the person with a disability. 

A ward may have decision-making ability in any amount of areas, including finances. 
There's been a number of guardianships that deal specifically only with their finance, like 
somebody's investments are being handled by a guardian but their day-to-day money and bank 
accounts, they're allowed up to $5,000 in a bank account they can deal with as they please but 
they're not allowed to deal with the higher amounts of money that are actually in their 
investments. So the financial guardianship can be divided up as easy. 

The court is supposed to go through and determine from the doctors' determination as 
to the capacity what the best nature of guardianship would be for a person to give them the 
maximum of independence, and so you'll have a lot of guardianships in the limited part that go 


specifically through what a person is able to do and what they are not able to do, and those are 
all articulated in the order. 

Now, there are different lengths of guardianship as well. So in cases where people are 
being exploited or they have medical needs that need to be done immediately, the 
guardianship can be appointed immediately. You can go into court and inform the court that 
you need a temporary guardianship. That is normally after a permanent guardianship has 
been filed. So the way that this would happen is that there's a guardianship in which a loved 
one or a friend or an agency comes in and files a petition for guardianship and says "I would like 
a permanent guardianship but there is immediate harm that's going to occur to the person who 
needs a guardianship," and the court, if they hear evidence, could appoint a temporary 
guardian to allow someone to make the decisions for that person on an immediate basis that 
will there will be a hearing in which that's done. So some of the guardianships can be 
temporary in nature. They could last a period of up to 60 days in most states before the 
hearing takes place for the plenary guardian, and that would be to protect the person. For 
instance, they have an operation that's coming, they're not capable of making decisions 
regarding that operation, they're appointed a temporary guardianship to be informed by the 
doctors as to what the operation is and consent to the line of treatment for that time period. 
So court would give them authority to do that but not to move them to another placement or 
to take control of their money at this time. 

A permanent guardian is sort of a misnomer, but a permanent guardian, or a plenary 
guardian, is appointed for the period of time that it's necessary, whether that's life or until the 
court orders a person to be competent. So normally on these check-in periods, as I talked 
about earlier, where the court comes back and talks to people and learns what's happening 
about their ward, there is a question, either in person or in writing to the guardian, as to 
whether the person still needs a guardian. When I was in private practice, I had a situation 
where we were told that somebody was nonverbal, and I went out to actually see her because 
some of her records indicated that she had spoken to other people, which did not sound 
adequate to me, that if she was nonverbal that she was actually speaking with some people. 
So when I visited her, I walked in and introduced myself, and I asked her if she knew what a 
lawyer was. And her response was, "Somebody who takes your money." And I was not 
only -- not only was she verbal, but she was also pretty funny. So at that point I knew that 
there was something wrong because she had been presented to the court for a number of 
years as not being able to speak and not being able to make any decisions, and I ended up 
having her restored, which is the next point in the slide, which is termination or modification. 
So if somebody gets better, if somebody has a guardianship that is not appropriate for them, 
there are some times that judges in my experience have ordered a plenary or a general 
guardianship when the person had ability to make other decisions. You can go back into the 
court and ask for a modification of the order to show that the person has only need of limited 
guardian and that that limited guardian should be in the areas articulated normally by a doctor 
or the professional who works with that person. It's also possible that that person no longer 
needs a guardian. So there have been cases where people have been in car accidents where 
they've gotten guardianships and then after rehab they no longer need the guardian and the 
guardianship is terminated. Unfortunately I had situations where a person was not able to 
communicate because of -- they were Deaf, big D, or that they had a hearing impairment, and I 


ended up saying all they needed to do was have an accommodation and they didn't need 
guardianship because they were perfectly capable of making their own decisions. So that was 
a case where a court didn't make the efforts to actually communicate with the person and 
ordered guardianship and in the end they didn't need guardianship at all. They just needed 
the ability to be able to communicate with those who ended up making the decisions with 
them. 

I'll turn it over to you Alicia. 

>> ALICIA AIKEN: Okay. I'm going to give a quick pause for ASL interpreter. Okay. 
Thank you, John, for laying out one of the things that I have learned over the years from talking 
to John and other experts in this area, is that each though we use the word "guardian" as a 
generic term we think means one thing, it really doesn't. It is -- it's more of an umbrella term 
and it covers a broad variety of possibilities. In much the same way that when we say we 
provide services to domestic violence or sexual violence survivors, that doesn't mean one thing, 
right? It means it's driven by the needs of the individual person who is coming to us. When 
we say we provide services, that's an umbrella term that when we' working with somebody and 
we say, what is it that you need, what is it that you want, we're going to get more specificity. 
So thinking about guardianship in the same way. What are the services we might provide to 
people that are impacted by whether they have a guardian or not? It's pretty broad, right. If 
someone is a sexual violence survivor it could affect who needs to give consent to a forensic 
exam, consent to medical care, mental health counseling, legal advocacy, who can be their 
lawyer. When we're looking at domestic violence survivors, it can also affect the legal 
advocacy decision -- again, John talked about some guardians have the power to decide where 
someone lives. So it might impact whether someone can be in shelter or not, and also what 
kind of medical care, mental health counseling they get, and the existence of a guardianship 
and what are the terms of it can have a real impact depending on your state, people's abilities 
to get a divorce and what that divorce looks like. Then it's just a question of all kinds of 
information sharing that happens while we're working with somebody. If you have a third 
person who is asserting that they are a guardian and they're entitled to get information, you 
then have to think about how to manage the information flow between you and the survivor, 
between you and the guardian, and the guardian and the survivor. So all those things are why 
so many of you signed up for this webinar today so that we could think about these questions 
together in a thoughtful manner. Really what we're going to focus on today is teaching you 
how to assess situations, how to ask the right questions, and how to make some sense of the 
answers that you get. But the law to a certain extent, the law on guardianship, is local to each 
jurisdiction, and the terms can be local, and the actual terms of any individual guardianship are 
going to be very specific to the person who is in need. And so really, we can't give you any pat 
"this answer applies across the board," except in maybe one or two places, and when we can, 
believe me we'll say it, but we're going to give you a process for analyzing the problem when 
questions come up. 

The first question that comes up routinely is, you know, who consents to services. Can 
somebody even consent to get counseling from me, to come to group therapy, to enter into the 
shelter? And so the first thing I always say is that I point out that depending on your 
jurisdiction, if you are providing domestic or sexual violence advocacy services, support groups 
or shelter, those are not necessarily medical treatment or mental health treatment. Again, 


whether it counts as some kind of mental health counseling can depend on what kind of 
professional is offering the services and it can depend on also how your local -- your state or 
jurisdiction defines the work that you are doing, but often the work that you do as an advocate 
is sort -- falls into a different area, from medical services or mental health services. And so 
you want to pay attention to that. Like the rules for consenting to medical care or the rules 
for consenting to mental health counseling may be helpful for you in thinking about 
frameworks for how to people consent to services, but if you are not providing those services, 
then don't assume those rules apply to you in the same way. 

The other important thing to remember about informed consent to services is that that 
is a different question from -- that is a different question from informed consent to share 
information. We'll talk about it in a few minutes. But if an individual is -- has competency, 
individually, to consent to services with you, then that means that they have competency 
individually to consent to sharing information. So we don't want to draw a false distinction 
between, yes, this person walked in the door and I decided that they needed help and I could 
serve them, but now they're asking me to share information in a way that maybe I'm not 
comfortable with or I don't agree with and so that makes me in you are us have. Maybe I 
think they're making bad decisions. I don't think I should allow them to give informed 
consent. If you believe they had informed consent to ask you to provide services and on the 
basis of that you gave those services, then they have informed consent to make -- they have an 
ability to make decisions about what to do with the information that arises from the fact that 
you provided services to them. 

John, do you want to throw something on informed consent to services? 

>> JOHN WHITCOMB: So, the question of whether a guardianship is normally needed, 
whether a guardian can sign or the person can sign, is what the purpose of the document is, 
and I think that we have to look at what the -- look at the document and saying are we asking 
somebody to legally sign their name on this saying that they will take services, or are we simply 
saying that they're a participant or that they were here. Those are different documents you 
have to look at in terms of what you're asking someone to sign. So if someone, because of 
their -- because they have a guardian is not able to legally sign something for legal purposes, 
then their guardian would have to sign that. If they are signing it for another type of purpose, 
then there's no reason to have a guardian sign to show that somebody was a participant in 
something. So I think we have to look at what the documents we have are actually saying and 
then if a person needs to consent to having services for some other reason then I think you're 
looking to know whether they have a guardian and whether the guardian will consent to those 
services. 

>> ALICIA AIKEN: That's such a good point, John. I see a lot of programs around the 
country have that a form that says informed consent or consent to services that they routinely 
use and they hand to survivors at the beginning of the working relationship, but often we don't 
know why we're handing that to survivors. So if you're not providing medical services, if 
you're not providing mental health counseling, if somebody says to you I want to talk, will you 
talk with me, if you don't have any law in your area that says they have to give you specific 
written consent to have a conversation with you, then you really want to question why you're 
handing them an informed consent to services document and most the time we just don't think 
about it one way or the other. We think what's the harm in asking someone to sign it. And if 


somebody does have a guardian, a limited guardian but they want to be able to have a 
conversation with you, you really want to ask the question, does the law require anybody to 
sign some kind of written form consenting to have a conversation. Because if it doesn't, then 
we can let somebody have the conversation with you without signing the form. We don't 
want to let forms to get in the way of survivors getting the help they are asking for. 

When we are talking about informed consent to share information, that is actually a 
little different. Informed consent means somebody giving you actual permission to take a 
specific action. One example that comes up a lot is to disclose to housing that, yes, I have 
sought services of a domestic violence program and therefore housing should treat me as a 
domestic violence survivor in need of a subsidy. Informed consent means the person who is 
asking you to take the action understands what they're asking you to share and understands 
the pros and cons of that decision and has an ability to weigh them. Informed consent is not 
having somebody make the exact same decision that you would make, and it is not having 
people just sign the form where they were told to sign the form. We definitely live in -- what I 
call a form-shoving world right now where people are routinely handed forms that nobody 
understands, including the lawyers who drafted them, and they're instructed to sign at the 
bottom line. I often tell the experience when I had to go with the E.R. with my son and nurse 
brought me a four-page form and said sign at the bottom. When I started to read it she 
became very irritated with me. She said you don't understand. You sign at the bottom of 
the fourth page. I said, no, you don't understand. I'm a lawyer who specializes in privacy. I 
read all four pages first. But that experience of people being confused when you try to read 
the form is very common. Again, what I am trying to say is just because someone signed a 
form doesn't actually mean they understood what the form said or what they were asking you 
to do. That's about the conversations that we have with people. But what I often see is 
where folks are -- people with disabilities or they don't communicate in the style that a worker 
is used to or expects, or they have some kind of capacity issue or developmental disability or 
intellectual disability, sometimes it's really tempting if the person doesn't make a decision that 
you agree with to decide that that must mean the decision is wrong and maybe that means 
they shouldn't be allowed to make decisions and maybe I should be go be finding someone else 
to make a decision for them. We really want to watch out for that tendency, and I think that's 
one of the reasons why John said earlier when we were talking about the term "ward," I will 
check in with you on this, John, when you talked about the fact the state of Illinois is moving 
away from the use of word "ward" and toward the use of the "people with disabilities" because 
it implies people with disabilities all need guardians, and that's not true. Sometimes it causes 
confusion in the field. If courts or statutes are using the term disabilities but then you drill 
down and look at the definition, the definition of a person with a disability a says a person 
whose disability interferes with their ability to make decisions for themselves or to protect 
themselves which is a whole different category. And so, John, I want to check in. Did I 
understand correctly what you were getting at when you said you're not thrilled with Illinois 
using the term "people with disabilities" to refer to all people who have guardians? 

>> 

>> JOHN WHITCOMB: The issue has been that they originally changed "ward" to 
"disabled person" and then they changed it to "people first" language, but to change that "all 
wards are now people with disabilities" is not -- or a person with disability is not in my -- in my 


mind appropriate or -- for either category, either the people who need guardians or for more 
generally the people with disabilities. It comingles terms that shouldn't be comingled and so 
you have an issue where the general public understands, oh, if you have a guardian you're a 
person with disabilities, which a raises a ton of issues, especially among the disability 
community. So I would prefer not using that term and using "person in need of guardianship" 
rather than a "disabled person." 

>> ALICIA AIKEN: You heard it here first. From now on it's called the Ping, a person in 
need of guardianship. 

>> JOHN WHITCOMB: I would just like to add that depending on the setting in which this 
is done, so there was a question asked about whether guardianship applies in mental health 
facilities and in Illinois and a majority of states, although some states have some specific rules 
on this, guardianship and mental health law, meaning someone who is being committed into a 
facility or someone who is having -- having to have medication prescribed for them against their 
will, those situations are normally handled by a mental health code in those states and not by 
guardianship. A guardian cannot consent to those. And so there is -- when you start asking 
whether someone who is in mental health can consent to services, you have to talk about what 
types of services those are, and whether their guardian can do it. So medical records can be 
allowed by that -- that person, and since some people will be receiving domestic violence 
services in those situations, things get really murky regarding for people who are receiving 
mental health services and other services at this same time. And so the majority of facilities 
that deal with this, the good ones will differentiate between the types of services that a 
guardian can consent to and those that the person even with a guardian can consent to, but it 
sometimes gets comingled and I want us to be aware of that. 

>> ALICIA AIKEN: John, now seems like a good time to address a couple questions that 
have come up in the Q&A. One person works with crime victims who are in jail, and the 
question was: If somebody was incompetent to stand trial, does that mean that they are 
unable to consent to receive domestic violence services or counseling? 

>> JOHN WHITCOMB: The answer to that, as far as I understand, is, no, it's the same 
thing, that if they are unable to make those decisions because they don't have the medical 
capacity to make those decisions, the person would have to go to guardianship court and get 
them to get a guardian to do that. Simply by determining they're incompetent to stand try 
does not stand in the face of their ability to consent to anything on their own without having a 
trial with a judge making a decision and the court issuing guardianship papers saying that that 
person is not able to make their own decisions and are incompetent to make either personal or 
financial decisions. 

>> ALICIA AIKEN: All right. Let's jump to, John, the question that I know people are 
asking, which is -- you have told us guardianship can be all over the map but how do we know if 
a person is a court-appointed guardian for someone? 

>> JOHN WHITCOMB: In all states there are paperwork -- the most basic ones are 
orders, but because the court has determined that orders may be long and somebody may not 
understand the legalese, most states have -- have what are called letters of guardianship, 
letters of office in order to determine the guardianship, letters of administration in some states. 
So you want to see the paperwork, and you want to know that the paperwork is valid, which is 
always the problem. Because as I stated earlier that once you see the paperwork you have 


someone saying they are a guardianship, you have to read the paperwork, and because some 
people have shown up and said I am the guardian, and you read the paperwork and they were 
the guardian of that person when they were a minor, and once they turn 18, those -- that 
paperwork was no longer valid and they had to go back to court and get a guardianship for an 
adult person. And if they didn't do that, the guardianship of the minor does not transfer after 
they're age 18. It's not an automatic. So you want to be reading the paperwork to see if it's 
a guardianship of an adult. You want to see if they have paperwork that actually gives them 
the power. I've had clients who said my guardian is making decisions and I was supposed to 
have the decision-making regarding my medical treatment, and the doctor is listening to my 
guardian, and we got their paperwork, and we read their paperwork, and the paperwork said 
that the person was able to apply for benefits for that person, they were able to choose where 
they live, they were able to communicate with their social worker. It did not say that they 
were able to make their medical decisions. But because that person had a guardian, limited, 
the doctor assumed that they would be dealing with the person who said that they were the 
guardian and not with the person who had the disability. And so the -- the actual paperwork 
we'll go through. 

The other thing that we listed earlier that people should be aware of is that you can 
have someone who has a temporary guardianship that in most states lasts 60 days, and so they 
will get letters of office for the temporary guardianship for 60 days. So they will look like 
guardianship papers but when you read them it will say they're limited for a time period. So if 
it's outside that time period, those guardianship papers are not appropriate as well. You need 
to find out specifically what kind of guardianship in your state -- the different types and the 
extent to -- how long the temporary lasts, how long the minor guardianship is normally 18, can 
that be extended in some states in my feeling is that it cannot, but they will all be issued by 
court. If there is no paperwork, there is no guardian unless the person goes to court and 
actually gets a temporary. So if they say, all those things I said in the beginning, you know, I'm 
their parent, my son is a person with an intellectual disability, he is not going to be able to 
understand this, if the parent does not have guardianship papers, they do not have the ability 
to make decisions for that person. 

>> ALICIA AIKEN: We have somebody who just sent in a question which does a nice job 
putting a fine point on this. It says, if I am clear, once an individual turns 18, even if they're 
physically or intellectually have a disability, if there is not a court-appointed guardian, then 
they're not under a guardianship, right? And that's right. Here is an example -- what? 
That's right, right? 

>> JOHN WHITCOMB: Yes. 

>> ALICIA AIKEN: I'm going to give an example that might help you wrap your head 
around it. I have a disability. I have a pretty severe hearing impairment. I have a disability, 
when I was under 18 my parents were my guardian. They were my guardian no matter what, 
regardless of my disability, and they did an awful lot of things for me to make sure that I got the 
medical care I needed, I got hearing aids I needed, the educational services I needed. But the 
day I turned 18 I became an adult who was presumed to be competent to make decisions. 
And my parents took a look at the situation and said, this person doesn't need a guardian. Or 
if they thought I did need a guardian, it didn't have anything to do with my hearing impairment 
they were like this person doesn't need a guardian, this is an adult who has an ability to manage 


her disability as she moved forward in her life. The day I game 18 I became a competent adult 
able to make my own decisions. If my parents disagreed with that they would have to go to 
court, or someone else would have had to go to court and proof to the court that I was not 
competent to make my own decisions, and then convince the court and get a court order. So 
just because someone walks in the door and they either disclose to you or you perceive that 
they have a disability does not mean they aren't competent to make decisions or that they 
automatically have a guardian or that they automatically need a guardian. 

Let's shift -- go ahead. 

>> JOHN WHITCOMB: So our office represents a lot of hospitals as well when they seek 
guardianship for people who are in the hospital who may or may not have guardians. And 
they want to know whether they have a guardian so that they can determine whether -- who is 
going to be making the decisions, and one of the issues that comes up is that sometimes people 
say I -- I am the guardian, and they present an order that's from 20 years ago, 25 years ago, and 
you don't know whether that's good or not. Or the person has guardianship papers but one of 
the other family members is saying those papers are no good anymore. So you have papers in 
front of you. One of the questions we also had is there a way to check this? In most 
jurisdictions, the court is moving more to an online basis where you can check whether the 
guardianship is still valid. For instance, I practice in Chicago. So we can go to the clerk of the 
circuit court of cook county where Chicago is located, and look up to see whether the 
guardianship is valid, and it won't actually have the court papers, we'll have to order those, but 
it will have what happened in court. So you can see whether it's been modified. You can see 
who the guardian is, whether that person has been replaced. Sort of the whole line. I've had 
guardianships in which the person with a disability has had five different guardians over a 
period of time. At some point all those people will have letters of office. So there is a way if 
you suspect that the guardianship papers are not is if you can check locally to see if your court 
that handles the guardianship or conservatorship will have it online so that you can actually 
check to see whether the guardianship is appropriate. 

>> ALICIA AIKEN: Okay. Excellent. Let's shift gears for a moment and talk about the 
confidentiality law that is going -- sorry, looks like I -- I jumped ahead on my slide. 

>> JOHN WHITCOMB: There's also some things that people are asking about -- let me 
just go through a couple of things that aren't guardianships. A power of attorney gives a 
competent person, a person with capacity, to nominate somebody else to make decisions on 
their behalf. And so that person -- so, first off, the person has to have the capacity to do a 
power of attorney. And as we know, anybody over 18 is assumed to have capacity and 
competent to make the legal authority to give those away. The individual can give that to 
somebody else, and so that's a document that allows another person to make decisions. The 
thing about power of attorney is that the agent is never allowed to override the person -- the 
person who signed the power of attorney's decision regarding a variety of things, especially 
medical. So if you have a power of attorney and the power of attorney is saying I want -- I 
want this, I'm the agent and I want to see these forms and the person who the actually signed 
the document to begin with, unless it says it's valid for life, again, you'll have to read that, they 
cannot say that they overrule the person who signed the power of attorney to begin with. A 
representative payee normally from Social Security or the Veterans Administration are the most 
common of that, is a person who was chosen to receive federal disability benefits and pay bills 


and manage his finances on behalf of the person. The agencies determine that the person 
receiving those benefits would be better off with somebody managing that amount and they 
will be controlled by that. With you neither of these terms make those people guardians. 
And parents of adults with disabilities are never legal guardians unless the court appoints them 
so. So, again, somebody can say that they're the parent and the person is with a disability, but 
unless they have those legal papers it does not make -- the ability to make decisions. Again, 
we want to emphasize that you want to see the paperwork, and part of seeing the paperwork is 
asking the person you're serving, is this paperwork good? And I think we're going to get into 
that next. 

>> ALICIA AIKEN: Thank you. 

>> JOHN WHITCOMB: So remember once you see the paperwork there are -- you want 
to know whether the guardian has the power to get or release information that you are 
receiving. The plenary or guardian is typically -- can -- if you have a general guardianship the 
general guardianship allows the person to sign informed consent. If you have a limited 
guardian you look at the description to see whether the decision-making power is actually in 
that paperwork. So you want to go through and see whether it comes into that. So there 
could be a general description of the ability to consent to medical procedures. If you are not 
providing medical procedures and you are providing some other procedure, you want to make 
sure that it is covered in a limited guardian, which means read the document. 

>> ALICIA AIKEN: The watch word is read the paperwork, read the paperwork. That's 
how you figure out what the rules are. That's how the guardian figures out what the rules are 
and that's how the person who has a guardian figures out what the rules are. 

So let's shift a bit and talk about the privacy and confidentiality rules that apply when 
you are providing victim services. Again, almost -- not all, but most programs around the 
country are receiving funding from at least one of these least federal sources, the violence 
against women act, family violence pre-venture services acted or victim of crime act. It's very 
exciting to me because this is the first year where I can say all three of those laws are following 
essentially the same rule when it comes to your requirements and how you protect information 
when you work with violence survivors and crime victims. And the big headline is not you in 
providing services shall protect the confidence tally and privacy of people receiving services. 
That means you're always thinking first about this person's ability to control information, 
to -- what is your promise to them to protect what they tell you, to not volunteer it, to put 
them at the center of deciding how information about them does or does not flow. And you 
can still put people in the center of that even when they have a guardian, even if the guardian 
has some power, people still get to know what's happening and how some participation in their 
own information flow. On the question of what is a release have to do, the federal law says 
that the grantee, which is -- you guys providing services -- shall not disclose individual client 
information without the informed, written and reasonably time-limited consent signed by the 
person. So if I walked in and I was asking for services, I'm an adult, I am competent, I do not 
have any kind of guardian, although I am a person with a disability, I have an ability to sign a 
consent form that says I would like you to share information about me with someone else. If a 
person, and this is what the federal law says, if a person is -- has been determined that they do 
not have capacity legally by a judge then a guardian signs their consent form. Essentially what 
that means is the guardian steps into the shoes of the person and makes the decision about 


sharing information for them and signs the consent form to give permission to share 
information. However, the violence against women act, which has been statutorily updated 
more recently than FVPSA and VOCA has an important line if it which is I think I think you follow 
whether you're receiving -- that has a really important line in it that says if the person could 
come to you and receive services from you without the consent of their guardian, meaning 
either their guardian didn't -- legally you're allowed to work with them without their guardian 
knowing about it or their guardian said, no, I don't them to receive services and the person said 
I want them so I'm going to get this help anyways, whether you like it or not, if they were 
allowed to do that and the person signs their own release of information form, if they want 
information released, without the guardian needing to sign it approve it or be involved. That 
essentially gets at what John has been talking about, this idea that guardian as a term, it's really 
an umbrella term and you might have someone who has a guardian but it's a limited guardian 
who only has power over financial decisions. When somebody comes to you for sexual assault 
advocacy and counseling services that's not a financial decision and so they're allowed to come 
to you on their own and you don't have to engage with the guardian about it and so they sign 
their own form if they want you to share information. 

Now, this federal law that I talked about is -- runs with your organization's grant funding 
from the federal government. You probably also have some state law that controls how 
information is shared by your profession in your jurisdiction. So you may have state-based 
privilege, depending on whether or not you are a victim counselor or an advocate or a mental 
health provider or a lawyer. You're going to have some kind of local -- the majority of states 
have privilege for advocates as well as the vast majority of states have privilege for social 
workers. All the states have privilege for mental health providers and for attorneys. So you 
have to make sure you know what your state law says about a ward -- again, the word "ward" is 
outdated but the person who has a guardian, what is their right to access services without a 
guardian's consent or knowledge. You don't necessarily have to have a law that says we give 
people with guardians to get these services. One question you are looking at this is the kind of 
thing somebody with capacity has to consent to receive medical care is a big area where you 
really have to affirmatively consent to having your doctors do surgery on you or otherwise, you 
know, provide you medical care. Then your state law may also have some specific rules about 
what the guardian's role is in consenting to disclosure of information. So this is your 
homework assignment, is to understand what your state law says in terms of who can come 
and get services from you and in terms of if somebody does have a legal guardian what is that 
guardian's role in consenting to disclosure of information. 

For the federal law that I was referring to a moment ago, you have in the files for 
download section there is the VAWA and FVPSVA statutory regulation and victims of crime act 
regulation. All three cover this requirement of a written consent. As I said only the violence 
against women act actually says -- I apologize -- the violence against women act and the VOCA 
regulation, because that's very new, both of those specifically say if somebody has a guardian 
but they were allowed to get services from you alone without the guardian participating, 
consenting or approving, then that person is allowed to make a decision about sharing 
information and they can sign their own form. What that means is that if somebody came to 
you and started getting help from you and they had a guardian but you didn't need to talk to 
that person or engage with that person at all, if the survivor starts making information sharing 


decisions you don't agree with, you don't then get to say, well, they have a guardian, I think we 
should go talk to the guardian. Because if they could get services from you without the 
guardian being involved, then the guardian is not in the middle of your working relationship and 
so the guardian doesn't make the decision about sharing information. The person, the 
survivor makes it for themselves. 

Which then raises a question people often ask, do we need a release of information 
from the survivor to give the guardian information? And that really depends on what the 
guardian's powers are. Again it goes back to what does the paperwork say? What are they 
allowed to do? So if the guardian has authority to decide whether or not the survivor gets 
services from you, then that guardian is again standing in the shoes of the survivor, and when 
they're standing in the shoes of the survivor, they're the one who makes the decision about 
information being shared and so they would need to see the information to make an informed 
decision. We can't ask them to decide whether or not to release information without knowing 
what it's in it. If the guardian has the authority to decide whether a survivor works with you, 
then that guardian -- you don't need a release of information for that guardian to know what 
you have or what's in your records or your files or what might be shared, because they are 
actually the person, and I'm using air quotes right now, they are standing in the shoes of the 
person, so they have to see the information to make an informed decision. But if the guardian 
does not have authority to decide whether the survivor gets services from you, then they're not 
in the middle of your working relationship. You're just working directly with the survivor and 
the survivor got to make their own decisions about whether or not to come to you and whether 
or not to get services from you, then that survivor makes their own decision about who gets to 
know what is shared, who gets to see their file or records with you, and that includes whether 
their guardian sees it. So a survivor makes their own decision. That's really the question 
you're asking, is the guardian standing in the shoes of the survivor here or is the guardian 
outside of my working relationship with this survivor? 

John, do you have anything you want to add on that point? 

>> JOHN WHITCOMB: No, I think you stated it perfectly. That the guardian would only 
stand in the place of the survivor. So you need to determine whether you would give this 
information to the -- and whether they could -- the survivor could consent, and if they could, 
the guardian would stand in their place. If you don't need to do that. And the guardian is 
without that authority, they would be considered any third party. 

>> ALICIA AIKEN: So that raises the question, this is sort of the next question people 
tend to ask here, which is, can we speak as freely with the guardian as we would with the 
survivor? John, how would you answer that question? 

>> JOHN WHITCOMB: I think we're getting into why we're speaking to the survivor at 
this point. So the question is, what are the roles, and whether the guardian is the perpetrator 
at this point. So you need to have at least that type of information before you can answer 
that question. 

>> ALICIA AIKEN: Okay. Again, it goes back to what is the role of the guardian, are they 
standing in the shoes of the survivor, or are they standing outside of your working relationship 
with the survivor. Always go back to that question and then that determines how you 
communicate with them. Although, even if the guardian is standing in the shoes of the 
survivor, you still want to do everything in your power to be survivor centered. So just 


because the guardian is allowed to come in and tell you, hey, tell me everything you discussed 
today, the survivor should get to know that that's happening. And the reality is that that 
might change what the survivor is willing to tell you or not tell you, but that's them making their 
privacy choices about what to share or not share. We're not in the business of tricking people 
into sharing information so that it can get disclosed to a guardian. So we want to make sure 
that the people know, hey, this is what your guardian is asking me to tell them. How do you 
feel about that? It may be that under the law I have to tell your guardian what you tell me, 
but you get to make your choices about what you tell me. I want you to know what I'm 
writing down in the records that I keep. I want you to know what's here. And so what 
someone else might see. Also, ask people, do you want to be present when I talk with your 
guardian? Do you want your guardian present when you talk with me? Those can be 
different things. Right? To have the guardian sitting in the room while the survivor receives 
services from you is a different thing from the survivor meeting with you alone and then saying 
I understand now that everything that I tell you is now going to be shared with my guardian. 
Again, this only applies if you have done the work of reading the paperwork and understanding 
the guardian's role and you have concluded that the guardian, in fact, has power over whether 
the survivor works with you and is the one who consents or says, no, they're not going to get 
services. If it is the guardian who does it and they are standing in the shoes of the survivor, 
then you're looking at these questions about how do I support the survivor and still center the 
survivor even though they also have a guardian who is here and present and getting 
information. So this is not what you do -- I want to emphasize. We spent the whole kind of 
first half of the webinar talking about how do you determine whether somebody is even in this 
position. For the relatively narrow category of people who are in fact going to be guardians 
who have this much power and it is going to be narrow and rare, then how do you handle that 
in a way that centers the survivor as a full person with some level of decision-making power 
and autonomy even though they have been determined that they don't have the legal authority 
to make some decisions in their lives. 

So then that tends to raise the question for people once we say to them, lots of people 
just because they have communication issues or they are a person with an intellectual disability 
or a physical disability, that does not mean that they have a guardian. So then people start to 
get a little bit nervous, what do I do if I'm talking to somebody and they don't seem to 
understand what I'm saying to them, and I know for certain that they do not have a legal 
guardian. What do I do in that situation? John, what are your thoughts? 

>> JOHN WHITCOMB: So, I think that you have to do everything that you can, that's 
possible, to communicate with that person. So the issue is, do you know what the 
communication problems -- are they a person with a hearing impairment or are they Deaf? Is 
there a cognitive disability that you know of? Is there a way that you can ask somebody how 
to adjust the way you communicate? Is writing things down and passing notes, is bringing 
notes? Is bringing in an ASL interpret or a captioner a better way to communicate with the 
person? Is having someone else in the room who is able to adjust your language and tell you 
that you need to explain something so that somebody else would do -- does the person with a 
disability consent to have that person there? And then you adjust how the communication is 
done in order to be as able as you can to communicate with that person. And so it's trial and 
error, and it may be frustrating, it may take more time, but it's -- it is required both in the 


provision of services and it's actually what the American with disabilities act says that you're 
supposed to do. You're supposed to adjust your ability to communicate in order to make it so 
that the person receiving services can communicate with you. 

>> ALICIA AIKEN: Fantastic. So one of the other questions that we tend to get is, what 
if it's an emergency situation and there's no chance to see the paperwork? Or what if I don't 
have a lot of time and I have to ask -- act quickly? What you do is you always start from being 
survivor centered. This person is coming to you for help. How do you center them in your 
response to them? Is that person saying to you this person standing next to me is my 
guardian, I want you to treat them as my guardian, I want you to share information with them. 
If you are really in an emergency situation and you cannot confirm the paperwork you might 
say to that person, under our local law, if the person is your guardian, and I -- they stay in the 
room with us, then it's still all protected. If the person is not your guardian and they're in the 
room with us, then other people might be able to force us to share it, right, and that's a local 
law question that you need to know what your local law says. But if you say to the person, if 
you want this person here, you want this person to hear this, then I'm going to fulfill your 
wishes because that's what you want. If somebody is coming in and saying this is an 
emergency situation, I am the guardian, I want -- I want you to go against the survivor's wishes 
and I'm not prepared to show you any paperwork whatsoever to show you that I have the local 
authority to do that, ask some serious questions about whether or not they really have the legal 
authority if they're not prepared to show it to you and if it's the opposite of what the survivor in 
the room is telling you what they want and they say that person is not my guardian. So you 
start by talking to them and figuring out what they want and what they want. If they are 
saying I want you to share the information with this person or I want this person to help me 
make decisions, then you survivor centered determine whether that person is a legal guardian 
or not. 

The other big question that comes up is what do we do if the guardian is in fact the 
abuser, which definitely happens to people? The federal law on confidentiality and consent to 
share information is very specific that an abusive guardian, if you determine as a service 
provider that the guardian is the abuser, that person is not allowed under federal law to sign a 
release of information to get at somebody's information. And then John can talk about the 
powers that a court has to deal with a guardian who is in fact abusive to the person they're 
supposed to be helping and protecting. 

>> JOHN WHITCOMB: So when I was with the protection and advocacy agency, which 
was -- in the state of Illinois, one every our roles was if we were informed that there was an 
abusive guardian that we would go into court and see another guardian for that person, 
whether that would be another individual from that person's family or whether that would be a 
state agency or whether that would be a friend who stepped forward. So the issue is that you 
need to consult or refer -- every state has a protection and advocacy agency. Some are of 
them are in state governments, most are independent. And they represent with disabilities in 
protecting them in including in guardianship. So you need to consult and find out who they 
are. Most state law regarding adult protective services does not -- you can call an adult 
protective services, they can come in and interview the survivor to -- regarding what the 
guardianship situation is, and they may take action as well. You should know who your adult 
protective services for each state is. And then finally, as I state in the beginning, the court is 


the ultimate guardian. So if you need to inform the court, and most states, including the one 
that I am in, says we will accept a letter informing us what's going on, or another situation, you 
can inform the court that the person, the survivor in front of you, is accusing the ward of being 
an abusive guardian, and as the -- we indicated, you can get a temporary guardian removing 
temporarily the plenary guardian in order for. Court to investigate whether the guardian is 
doing appropriate actions. And the court will make a determination and during that time in 
which they're making their determination normally they will temporarily appoint another 
person or entity to be the temporary guardian to make decisions during that time and then if 
they determine that that guardian was not appropriate, they would remove them if they 
determined that the guardian had acted appropriately they can reinstate that guardian at that 
time. 

>> ALICIA AIKEN: Okay. So what we're going to do now is we want to have some 
opportunity for -- to address more of your questions, which you guys have done a great job of 
sending in. We also want to walk through a couple very common scenarios that come up. 
So, John, I'm going to ask you for thoughts: What should somebody do if there is a survivor 
in -- let's say a domestic violence shelter, and someone is banging on the door of the shelter 
claiming to be the guardian? 

>> JOHN WHITCOMB: The first thing you should do is, do you have papers that 
determine that you are the guardian? And at the same time as this is occurring, I think the 
best practices would be that you have staff asking the person, is this your guardian? Are they 
currently your guardian? And to the survivor there. So it's twofold. You're wanting to see 
paperwork from the person who is knocking on the door, banging on the door, claiming to be 
the guardian of whether they're actually the guardian, and at the same time we're asking the 
survivor, do you know who this person is? Is this person your guardian? Are they currently 
your guardian? And you also want to know, which is the conversation part, is this 
person -- the abuser why -- why are they banging on the door rather than doing an appropriate 
contact with everyone? So you're going to investigate the situation and the first step is asking 
the survivor and at the same time you're asking for paperwork from the person claiming to be 
the guardian. 

>> ALICIA AIKEN: And the other question sometimes is they say how are we supposed to 
have a conversation with the person at the door if we don't know if we're allowed to admit that 
this survivor is inside or not? And that question is easily handled by just adding the word "if" 
to the beginning of your sentence. So it's if you are telling me that you are the guardian of a 
person who you think is inside this shelter, can you please show me your paperwork, your 
letters of office, showing that you are that person's guardian. I'm not telling you the person is 
inside or not. I'm saying to you are telling me someone is inside and that you have the right to 
communicate with me and to know whether they're inside. If you think that's true, then you 
show me the paperwork. So just -- just put it in front of it. If you think this person is inside 
and if you think you have the power to make decisions for them, can you show me that 
paperwork? Because if they show you the paperwork that shows they are the plenary 
guardian with all decision-making authority for a person not in fact inside, then you can say to 
them, you have shown me that you are the guardian and you have the right to have 
information about this person if they were inside. They're not here. But you don't want to 
have a different response whether the person is inside or not inside because then what you are 


doing is you are essentially giving away who is in and who is not when that's not an appropriate 
thing to be doing. 

>> JOHN WHITCOMB: I guess the next question would be: A survivor is in the shelter 
and someone is -- sorry -- a survivor with a guardian asks to have a meeting alone with the 
advocate and the guardian insists on being present. Do you allow the meeting to occur? 
What is the law require? What is the good practice? 

>> ALICIA AIKEN: From my perspective, again it goes back to being two questions, one is 
what exactly are the powers of the guardian? What's the authority of the guardian? And 
then what does it look like to center the survivor here, even if the guardian has authority to be 
in on that meeting? Again, it's going to be relatively rare that someone is coming to you for 
services and in fact has a guardian that has such a broad set of powers that they are allowed to 
prevent you from having a conversation with someone without them being in the room. And 
some much this is going to depend on what your profession is. Are you the profession of 
advocate or are you the profession of mental health provider? Or the profession of -- you 
need to be looking at those questions in your jurisdiction for your profession, what are the rules 
about your ability to meet with people, talk with people, what constitutes providing services, 
and, you know, really paying attention to those things that you can facilitate survivors 
communicating with you comfortably and freely. But also you need to take a step back and 
talk to the guardian in the same active listening way that you would talk to a survivor. Can 
you help me understand what's going on here? What are you worried will happen if I meet 
with the survivor alone? What are you concerned about? What are the things you think is 
important for me to know? Is there some kind of middle ground here? Is it possible there 
are things you want to tell me with the survivor in the room hearing you tell me but then there 
are some things that you would be comfortable letting the survivor discuss with me without 
you being in the room? You're looking to navigate the situation by determining where people 
are coming from, what are the problems they are trying to solve and what is it that's possible in 
terms of finding a way to support the person who has been victimized by someone else rather 
than making them feel like an object. 

John, I have a question for you, which is our last scenario. What should somebody do 
if, for instance, they're with a survivor in the emergency room and preparing for an SANE exam 
and somebody appears and says I'm the guardian and says I object to the sane exam being 
conducted? 

>> JOHN WHITCOMB: Again, you have to look for the paperwork. The paperwork 
determines what the guardian can actually say. You have to talk to the survivor to determine 
whether, again, the guardian is the abuser. Most medical decisions will be made by a plenary 
guardian or the guardian if the -- if the limited guardian says that. But the number one thing 
as always is to have a conversation. Why would you not want to have the sane exam done? 
Why would you not let the medical professionals determine what has to be done? What are 
your concerns if it's determined that the guardian is an appropriate guardian and not the 
abuser? You want to have a conversation with that person to determine what exactly is going 
on and to determine whether it's appropriate. It may be appropriate to call protective 
services at that point and saying I have a victim who is asking to have a sane exam at this time. 
The guardian is saying no. I don't believe that that's an appropriate determination and the 
guardian will not tell me why they are not allowing this you. And so you're going to have a 


conversation and bring in other professionals in order to have that decision at least looked at a 
little more closely in order to make sure that the survivor gets appropriate care. 

>> ALICIA AIKEN: When you are looking the that adult protective services questions you 
can include the survivor in that. If the survivor is like I -- how do I get what I need, what I want 
here, what I think is best for me, they may want to reach out to adult protective services or 
have you help them reach out to adult protective services to get help with -- especially if 
the -- the issue is [ INAUDIBLE ] or that the guardian is the assailant or sometimes it's not that 
the guardian is the assailant but that the guardian has a vested interest in protecting the 
assailant. They're no longer acting in the best interest of the survivor, which is what a 
guardian is required to do -- actually I just said that, is that legally correct, John? It's a mix, 
right, of the best interest and also the survivor's wishes, is what the guardian is required to take 
into account. 

>> JOHN WHITCOMB: Yes, that is absolutely right. There's been a lot of questions 
about what do we do if we find out later that somebody has a guardian? Or we already 
provided services and then we find out that they have a guardian. So my best advice is that 
you have a process in which you actually ask the person, the survivor, whether they have a 
guardian or not. If you determine that -- if they say, I don't have a guardian, and you have no 
knowledge that they have a guardian, they are presumed to be competent until you get 
information to the contrary. And so the issue goes back to that once you're presented with it, 
you determine whether they are valid guardians, and there's been some questions about how 
do we do that? And so in most states guardians are issued in the probate court or in 
guardianship court. In the counties where somebody resides. So that's normally where you 
start with. So if someone says, I moved from one part of the state to another part of the state 
and my aunt may be guardian, I don't know, she lives down -- where I used to live, your inquiry 
would be in the county where she used to live, and you know, there are ways to do this the 
legal process and then there are ways to say what's your aunt's name, do you have a phone 
number for her, we're going to find out whether she is your guardian. But once you've been 
informed there is a guardian, you have a duty to actually find out whether there's 
been -- whether it's true or not and whether there's paperwork and what are the extent of 
those duties. 

>> ALICIA AIKEN: So what we've given you on this slide is essentially the process of the 
questions that you will go through when these guardianship issues or potential guardian issues 
come up in your work with survivors. In the interest of time I'm going to focus on the last one, 
which is: Do we need outside help or technical assistance to handle this? If so, who do we 
contact. I think for me, you know, it is so important, just like you are probably already 
relatively familiar with who your local legal aid lawyers are, you want to get familiar with who 
your local protection and advocacy lawyers are. That's the P&A, is the shorthand term John 
and I have been using. You can reach out to the national disability rights network to help you 
figure out who is the organization in your state. Sometimes they have really obvious names 
like disability rights California, and sometimes they have clever names like equipped for 
equality in Illinois. So it's not obvious that's what they do. Every state has protection and 
advocacy lawyers who are there to provide free legal services for persons with disabilities to 
help them protect their autonomy and their civil rights. Now, your local P&A pay not be doing 
direct republication of people in -- representation of people or they might be doing why it but 


they know the law in your area on what kind of services can be provided, how our courts are 
doing guardianship, what is our local lingo. So your other homework assignment, I think, is 
after this call, go out and find out who is your protection and advocacy and schedule a meeting 
where you can do some cross teaching, where they teach you what they know about these 
issues in your jurisdiction and you teach them what you know about survivor-centered services 
and practice, and you build that relationship so that when an issue comes it feels like a crisis in 
the moment, you know who call to ask for help or for connection to other local resources. 

Also here on the resources pages, the national clearinghouse on abuse in later life, 
National Network to End Domestic Violence safety net & confidentiality project. If you have a 
technical assistance question on confidentiality issues, whether a guardian or not, if you email 
both safety net and me at confidentiality institute we have about eight people fielding those 
questions and making sure you get good answers as quickly as we reasonably can. And that, 
especially since a few minutes after our end time, is the end of the webinar. Thank you, John, 
so much for doing this with me. I recruited John to do this on a pro bono basis and his 
expertise and knowledge has been invaluable. Thank you so much. 

>> JOHN WHITCOMB: You're welcome. Thank you for such a great partner. 

>> SHANNON SCULLY: And thank you, Alicia and John, for coming and doing this webinar 
for us today. It was incredibly informative and we're grateful to have you here. I know many 
of you had questions in the Q&A pod an I want to be respectful of time. What we will do is I 
will work with Alicia and John in going through these questions and just make sure that 
everybody got their questions answered. If you for some reason have a question that comes 
up, you can email us at CVS@Vera.org and we can work with both John and Alicia and 
others -- some of the other experts we know in the field that Alicia gave examples to try to get 
that answered. So again our general email here at Vera, the Center On Victimization and 
Safety is CVS@vera.org. Please take a moment to look through some of the additional 
materials we have here on the screen. We have an online webinar survey that we would like 
you to take. You can do that by going to the pod that says survey, clicking on the "who 
decides" and click "browse to" and that will open up into another window. It's a Survey 
Monkey questionnaire. And you can also register for our next End Abuse of People with 
Disabilities webinar, which is titled "you report? Everyone reports? Mandated are reporting 
and obligations when a survivor has a disability." That is going to be on October 17th, 2017 at 
2:00 p.m. Eastern Standard Time. You can click on the link to register for that. And if you are 
unable to, we will be standing out more information about that webinar as it approaches. 
Again, thank you to Alicia and John, and I will leave the webinar open for a few more minutes 
so you can take advantage of some of the materials on our screen. Thank you and have a 
good afternoon. 

>> ALICIA AIKEN: Thank you.