NO. 135.  AN ACT RELATING TO REPORTS OF ABUSE, NEGLECT AND EXPLOITATION OF ELDERLY AND DISABLED ADULTS.

(S.224)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  4 V.S.A. § 311 is amended to read:

§ 311.  JURISDICTION GENERALLY

The probate court shall have jurisdiction of the probate of wills, the settlement of estates, trusts created by will, trusts of absent person's estates, charitable, cemetery and philanthropic trusts, the appointment of guardians, and of the powers, duties and rights of guardians and wards, accountings of attorneys in fact where no guardian has been appointed and the agent has reason to believe the principal is incompetent, relinquishment for adoption, adoptions, uniform gifts to minors, changes of name, issuance of new birth certificates, amendment of birth certificates, correction or amendment of marriage certificates, correction or amendment of death certificates, emergency waiver of premarital medical certificates, proceedings relating to cemetery lots, trusts relating to community mausoleums or columbariums, proceedings relating to the conveyance of a homestead interest of an insane spouse, the issuance of declaratory judgments, issuance of certificates of public good authorizing the marriage of persons under sixteen years of age, appointment of administrators to discharge mortgages held by deceased mortgagees, appointment of trustees for persons confined under sentences of imprisonment, fixation of compensation and expenses of boards of arbitrators of death taxes of Vermont domiciliaries, and as otherwise provided by law.

Sec. 2.  14 V.S.A. chapter 123 is added to read:

Chapter 123.  Powers of Attorney

§ 3501.  Definitions

As used in this subchapter:

(1)  “Accounting” means a written statement itemizing transactions taken by an agent pursuant to authority granted by a principal under a power of attorney.

(2)  “Agent” means a person named by a principal in a written power of attorney to act on the principal’s behalf, and is synonymous with the term “attorney-in-fact”.

(3)  “Commercial transaction” means any transaction entered into on behalf of the principal for commercial or business purposes and not primarily for personal, family, or household purposes.

(4)  “Compensation” means payment to the agent from assets of the principal for services rendered by the agent.

(5)  “Disability or incapacity of the principal” means a physical or mental condition which prevents the principal from directing the actions of the agent and would, under common law principles of agency, cause a power of attorney previously executed by the principal to terminate.

(6)  “Durable power of attorney” means a written power of attorney in which the authority of the agent does not terminate in the event of the disability or incapacity of the principal.

(7)  “Gift” means any transfer of anything of value for which consideration of less than fair market value is received.

(8)  “Power of attorney” means a written document by which a principal designates an agent to act in his or her behalf.

(9)  “Principal” means a person who executes a power of attorney designating one or more agents to act on his or her behalf.

(10)  “Revocation” means the cancellation by a principal of the authority previously given by the principal to an agent.

(11)  “Self-dealing” means any transaction, including transfer of property of a principal to an agent, that directly or indirectly benefits the agent or the immediate family of the agent, regardless of whether the agent has provided consideration for the transaction.

(12)  “Termination” means any occurrence or event, including revocation, which, under this subchapter, causes the authority previously given by a principal to an agent to cease.

(13)  “Terms of the power of attorney” means the specific language contained in a power of attorney.

(14)  “Third party” means any person that acts on a request from, contracts with, or otherwise deals with an agent pursuant to authority granted by a principal in a power of attorney.

§ 3502.  Creation of a power of attorney

(a)  Except as provided in subsection (d) of this section, a power of attorney shall, in order to be valid:

(1)  be in writing;

(2)  name one or more persons as agent;

(3)  give the agent power to act on behalf of the principal; and

(4)  be executed as provided in section 3503 of this title.

(b)  Except as provided in subsection (c) of this section, a power of attorney shall be effective on the date the power of attorney is executed as provided in section 3503 of this title.

(c)  A power of attorney may:

(1)  specify the date on which the power of attorney will become effective; or

(2)  become effective upon the occurrence of an event, which shall be specified in the power of attorney, as shall the manner in which the event shall be determined to have occurred.

(d)  Subsection 3503(e) of this title, and the provision in subsection 3503(a) of this title that requires the witness and the notary to be different persons, shall not be applicable to:

(1)  a power of attorney for the sale, transfer or mortgage of real estate executed in conformance with section 305 of Title 27, provided the real estate is specifically identified in the power of attorney and the duration of the power of attorney is no more than 90 days; or

(2)  a power of attorney for a commercial transaction, provided the transaction is specifically described in the power of attorney and the duration of the power of attorney is no more than 90 days.

§ 3503.  Execution

(a)  A power of attorney shall be signed by the principal in the presence of at least one witness and shall be acknowledged before a notary public, who shall be a person other than the witness.

(b)  If the principal is physically unable to sign, the power of attorney may be signed in the principal’s name written by some other person in the principal’s presence and at the principal’s express direction, provided the person signing for the principal is not named as agent and the power of attorney states another person has signed for the principal and identifies the name of that person.

(c)  A person named as agent under the document may not serve as a witness or notary public with respect to the document.

(d)  The witness shall affirm that the principal appeared to be of sound mind and free from duress at the time the power of attorney was signed, and that the principal affirmed that he or she was aware of the nature of the document and signed it freely and voluntarily.

(e)(1)  No agent, including alternate or successor agents, may exercise authority granted in a power of attorney unless the agent has signed the power of attorney, attesting that the agent:

(A)  accepts appointment as agent;

(B)  understands the duties under the power of attorney and under the law;

(C)  understands that he or she has a duty to act if expressly required to do so in the power of attorney consistent with subsection 3506(c) of this title; and

(D)  understands that the agent is expected to use his or her special skills or expertise on behalf of the principal, if the expectation that the agent does so is expressly provided for in the power of attorney consistent with subdivision 3505(a)(6) of this title.

(2)  An agent may sign at any time after a power of attorney has been executed and before it has been exercised for the first time.

§ 3504.  Scope of authority

(a)  The agent shall have the authority to act on the principal’s behalf as to all lawful subjects and purposes, but only to the extent such authority is given under the terms of the power of attorney, subject to section 3506 of this title and subsections (b) through (g) of this section.

(b)  No power of attorney created under this subchapter may give an agent the authority to:

(1)  make health care decisions, as that term is defined in chapter 121 of this title;

(2)  execute, modify or revoke a durable power of attorney for health care for the principal;

(3)  execute, amend or revoke a will for the principal;

(4)  execute, modify or revoke a living will for the principal;

(5)  require the principal, against his or her will, to take any action or to refrain from taking any action;

(6)  exercise, by delegation, the fiduciary responsibility of the principal as executor of a will or administrator of an estate;

(7)  exercise, by delegation, the fiduciary responsibility of a trustee, unless the instrument creating or amending the trust specifically authorizes the delegation; or

(8)  take any action specifically forbidden by the principal, notwithstanding any provision of the power of attorney giving the agent the authority to take such action.

(c)  No agent may convey lands belonging to the principal or an estate or interest therein unless the terms of the power of attorney explicitly provide the agent has such authority and the power of attorney meets the specific execution requirements of section 3503 of this title.

(d)  No agent may compensate him or herself for duties performed under a power of attorney with funds or property belonging to the principal unless the terms of the power of attorney explicitly provide for compensation.  Reasonable reimbursement for actual out-of-pocket expenditures by the agent for the benefit of the principal shall not be considered compensation.

(e)  No agent may make a gift or a loan to a third party unless the terms of the power of attorney explicitly provide for the authority to make gifts or loans.

(f)  No agent may make a gift or a loan to him or herself of property belonging to the principal unless the terms of the power of attorney explicitly provide for the authority to make gifts or loans to the agent.

(g)  No agent may appoint another person as alternate or successor agent unless the terms of the power of attorney explicitly provide for the authority to appoint an alternate or successor agent.

(h)  A power of attorney may specify that accountings shall be made by the agent at specific times or upon the occurrence of specified events or that accountings be made to specified third parties.  The authority of the principal to request accountings at any time shall not be limited or waived.

§ 3505.  Duties of the agent

(a)  The agent shall have a fiduciary duty to the principal.  The fiduciary duty of the agent requires that the agent, in the performance of his or her duties, shall:

(1)  act in good faith and in the interest of the principal;

(2)  refrain from self-dealing except as provided in the power of attorney pursuant to subsection 3504(d) or (f) of this subchapter;

(3)  avoid conflicts of interest which would impair the ability of the agent to act in the interest of the principal;

(4)  not commingle the funds of the principal with his or her own funds or the funds of third parties, except in an attorney-client trust account in accordance with the rules governing such accounts;

(5)  exercise the degree of care that would be observed by a prudent person dealing with the property and affairs of another person;

(6)  if selected as agent with the expectation he or she has special skills or expertise, use those skills on behalf of the principal, provided the terms of the power of attorney specify that the agent is expected to use special skills and expertise, and provided, further, the agent acknowledges in signing the power of attorney that he or she has been so selected;

(7)  take no action beyond the scope of authority granted by the terms of the power of attorney;

(8)  take no action which violates any provision of this subchapter;

(9)  keep records of all transactions taken under the power of attorney;

(10)  provide accountings upon request of the principal or at such times or in such manner as is specified by the terms of the power of attorney;

(11)  follow the directions of the principal specifically forbidding an action, notwithstanding any provision of the power of attorney giving the agent authority to take such action; provided, however, no third party who acts in reliance on the apparent authority of the agent under the power of attorney shall be bound or limited by the directions of the principal to the agent not set forth in the power of attorney unless such third party has actual notice of the instructions;

(12)  comply with any lawful termination of the power of attorney as provided in section 3507 of this title.

(b)  Nothing in this section shall be construed to limit other duties imposed on the agent by statute or common law.

§ 3506.  No duty to exercise authority unless

              specifically provided

(a)  Except for the duties imposed on agents by this subchapter and except as provided in subsections (b) and (c) of this section, an agent has no duty to exercise any authority granted in a power of attorney, regardless of whether the principal is disabled or incapacitated or otherwise unable to act.

(b)  Acting for the principal in one or more transactions does not obligate an agent to act for the principal in a subsequent transaction, but the agent has a duty to the principal to complete any transaction the agent has commenced.

(c)  If the power of attorney explicitly provides that the agent has a duty to act for the principal as to specified transactions or types of transactions and the agent has specifically acknowledged and accepted such duty to act in signing the power of attorney, the agreement to act on behalf of the principal is enforceable against the agent regardless of whether there is any consideration to support a contractual obligation.

§ 3507.  Termination; revocation

(a)  Subject to the provisions of subsection (c) of this section, a power of attorney shall terminate upon:

(1)  the revocation by the principal, as provided in subsection (b) of this section;

(2)  the divorce of the principal and spouse, where the spouse is the agent;

(3)  the death of the principal;

(4)  the disability or incapacity of the principal, except as provided in section 3508 of this title;

(5)  the resignation or death of the agent, unless an alternate agent is named in the power of attorney or by the agent;

(6)  a termination date specified in the power of attorney, if any;

(7)  the occurrence of a termination event explicitly specified in the power of attorney; or

(8)  the order of a court of competent jurisdiction.

(b)  A principal who is not subject to an involuntary guardianship under subchapter 12 of this chapter may revoke a power of attorney, whether durable or not, at any time by notification to the agent orally, or in writing, or by any other act evidencing a specific intent to revoke.  An agent must comply with his or her principal’s revocation notwithstanding the actual or perceived disability or incapacity of the principal.

(c)  The occurrence of a terminating circumstance listed in subsection (a) of this section does not terminate a power of attorney, whether durable or not, as to the agent or other person, who, without actual knowledge of the terminating circumstance, acts in good faith under the power of attorney.  Any action so taken, unless otherwise invalid or unenforceable, binds the principal and his or her heirs, devisees, and personal representatives.

(d)  When an agent has acted in good faith under a power of attorney without actual knowledge of the occurrence of a terminating circumstance, an affidavit may be executed by the agent at any time, stating at the time of doing an act pursuant to the power of attorney, he or she did not have actual knowledge of the occurrence of the terminating circumstance.  The affidavit shall constitute conclusive proof of the nontermination of the power of attorney at that time, in the absence of fraud.  If the exercise of the power requires execution and delivery of any instrument that is recordable, the affidavit may also be recorded and shall be cross-referenced to the other instrument.

(e)  A power of attorney coupled with an interest in a commercial transaction shall not be subject to revocation if the power of attorney states that it is irrevocable. 

§ 3508.  Durable powers of attorney; when power of

              attorney not affected by disability

(a)  A durable power of attorney is created by an explicit term in the power of attorney that “This power of attorney shall not be affected by the subsequent disability or incapacity of the principal,” or similar words showing the intent of the principal that the authority given the agent is intended to be exercisable notwithstanding the principal’s subsequent disability or incapacity.

(b)  If the principal intends that the power of attorney become effective upon the principal’s subsequent disability or incapacity, the power of attorney shall state that fact, and specify the manner in which the disability or incapacity is to be determined.

(c)  All acts done by an agent pursuant to a durable power of attorney during any period of disability or incapacity of the principal shall have the same effect as if the principal were not disabled or incapacitated.

§ 3509.  EFFECT OF SUBSEQUENT INVOLUNTARY GUARDIANSHIP

              ON POWER OF ATTORNEY

(a)  On motion filed in connection with a petition for appointment of an involuntary guardian or on petition of a guardian if one has been appointed, the probate court shall consider whether the authority of an agent designated pursuant to a previously executed power of attorney should continue undisturbed or be limited, suspended or terminated.  The court may issue an order limiting, suspending or terminating the power of attorney only upon determining that to do so would be in the best interests of the ward.

(b)  Upon a finding by a probate court that appointment of a guardian is warranted, pursuant to a petition for involuntary guardianship under subchapter 12 of this chapter, if the principal has nominated a guardian in a previously executed power of attorney or other document, the probate court shall appoint as guardian the person so nominated unless the court determines that to do so would not be in the best interests of the ward.

(c)  In determining the best interests of the ward, the court shall consider, at a minimum, the following factors:

(1)  the preferences of the ward, including the identity of the agent and the scope of the agent’s authority, as expressed in the power of attorney;

(2)  whether the agent was appointed because he or she has special skills or expertise;

(3)  whether a guardian is needed to perform duties for which authority was not given under the power of attorney;

(4)  whether the exercise of concurrent powers is advisable when the scope of the agent’s authority overlaps with the authority of the guardian;

(5)  whether the agent and the guardian are able to perform their respective duties in a collaborative manner that does not compromise the best interests of the ward;

(6)  whether the agent has violated the provisions of this subchapter or the terms of the power of attorney, breached his or her fiduciary duty, failed to perform duties under the power, or is unable or unwilling to perform duties under the power of attorney;

(7)  whether the power of attorney was improperly executed;

(8)  whether the principal executed the power of attorney as the result of duress, coercion, fraud or undue influence; or

(9)  whether the principal lacked the capacity to create the power of attorney at the time of execution.

(d)  If a guardian is appointed for the principal and the court determines that the previous executed power of attorney should remain in effect, the agent shall account to the guardian rather than the principal.

§ 3510.  Action for accounting; declaratory relief;

              termination of power of attorney

(a)  A principal may file a petition in superior court to compel the agent to submit an accounting or report his or her acts as agent to the principal or for the purposes listed in subdivisions (c)(1)-(3) of this section.

(b)  The commissioner of aging and disabilities, or designee, acting pursuant to chapter 69 of Title 33, may also file a petition in superior court for the purposes listed in subsection (c) of this section.  If, upon motion of the principal, the court determines that the principal is capable of expressing his or her opinion and does not wish the commissioner, or designee, to pursue the petition, the court shall dismiss the petition unless the court finds the opinion is the product of duress or undue influence.

(c)  A petition may be filed for the following purposes:

(1)  To determine whether a power of attorney is in effect or has been terminated or revoked.

(2)  To determine the legality of acts, proposed acts, or omissions of an agent.

(3)  To enjoin the agent from taking unauthorized or illegal acts or to compel the agent to act, if the terms of the power of attorney provide that the agent has a duty to act, pursuant to section 3506 of this title.

(4)  To compel the agent to submit an accounting or to report his or her acts as agent to the commissioner of aging and disabilities, acting pursuant to subsection (b) of this section, upon a showing that there is good cause to believe:

(A)  the agent has violated the provisions of this chapter or the terms of the power of attorney, has breached his or her fiduciary duty to the principal, or is unfit to perform his or her duties under the power of attorney; and

(B)  that, at the time of the petition, the principal lacked the capacity to request an accounting.

(5)  To declare that the power of attorney shall be terminated upon determination by the court that the power of attorney was improperly executed, the principal executed the power of attorney as the result of duress, fraud or undue influence, the principal lacked the capacity to create the power of attorney at the time of execution, the agent has violated the provisions of this chapter or the terms of the power of attorney, has breached his or her fiduciary duty to the principal, or is unfit to perform his or her duties under the power of attorney.

(d)(1)  In a proceeding under this section, commenced by the filing of a petition by a principal or the principal’s legal representative, the court may order an agent to pay reasonable attorney’s fees to the principal if the court determines that the agent has clearly violated the provisions of this chapter or the terms of the power of attorney, his or her fiduciary duties under the power of attorney, or has failed without any reasonable cause or justification to submit accountings or reports after written request.

(2)  In a proceeding under this section, commenced by the filing of a petition by the commissioner of aging and disabilities, or designee, the court may order the commissioner to pay reasonable attorney’s fees to the agent if the court finds that the petition was filed without a substantial basis in law or fact.

(e)  The principal and the agent shall be parties to any petition brought under this section. 

§ 3511.  Remedies for violation by agent

Any principal who sustains damages or injury as a result of an agent’s action or inaction in violation of this subchapter, the terms of a power of attorney, or the agent’s fiduciary duties under a power of attorney may sue for appropriate equitable relief, and may sue and recover from the agent the amount of his or her damages, costs, and reasonable attorney’s fees.

§ 3512.  Other common law and statutory remedies still

              available

Nothing in this subchapter shall be construed to abrogate any other causes of action or relief at law or equity to which a principal is entitled under other statutes or at common law.

§ 3513.  Presumption of validity

Any power of attorney executed as provided in this subchapter shall be presumed valid.  No third party with whom an agent seeks to act shall require an additional or different form of power of attorney.  A photocopy or electronically transmitted facsimile of a duly executed original power of attorney may be relied upon to the same extent as the original.

§ 3514.  reCIPROCITY

Nothing in this subchapter limits the enforceability of a power of attorney or similar instrument executed in another state or jurisdiction in compliance with the law of that state or jurisdiction.

§ 3515.  Provisions of statute implied; may not be waived;

              severable

(a)  The duties and obligations of agents under this subchapter shall be deemed incorporated into all powers of attorney.

(b)  Any term of a power of attorney, executed after the effective date of this subchapter, which purports to waive, or which is otherwise inconsistent with, the provisions of this subchapter, shall be void and unenforceable.

(c)  If any term of a power of attorney is held to be invalid, the invalidity does not affect other terms of the power of attorney that can be given effect without the invalid term.

§ 3516.  Effective date; Effect on existing powers of

              attorney

A power of attorney shall be valid if it:

(1)  complies with the terms of this subchapter; or

(2)  is executed before July 1, 2002 and valid under common law or statute existing at the time of execution. 

Sec. 3.  33 V.S.A. § 6902 is amended to read:

§ 6902.  DEFINITIONS

As used in this chapter:

(1)  “Abuse” means:

(A)  Any treatment of an elderly or disabled a vulnerable adult which places life, health or welfare in jeopardy or which is likely to result in impairment of health;

(B)  Any conduct committed with an intent or reckless disregard that such conduct is likely to cause unnecessary harm, unnecessary pain or unnecessary suffering to an elderly or disabled a vulnerable adult;

(C)  Unnecessary or unlawful confinement or unnecessary or unlawful restraint of an elderly or disabled a vulnerable adult;

(D)  Any sexual activity with an elderly or disabled a vulnerable adult by a caregiver, either, while providing a service for which he or she receives financial compensation, or  at a caregiving facility or program who volunteers for or is paid by a caregiving facility or program.  This definition shall not apply to a consensual relationship between a vulnerable adult and a spouse, nor to a consensual relationship between a vulnerable adult and a caregiver hired, supervised, and directed by the vulnerable adult;

               (E)  Intentionally subjecting a vulnerable adult to behavior which should reasonably be expected to result in intimidation, fear, humiliation, degradation, agitation, disorientation, or other forms of serious emotional distress; or

               (F)  Administration, or threatened administration, of a drug, substance, or preparation to a vulnerable adult for a purpose other than legitimate and lawful medical or therapeutic treatment.

* * *

(5)  “Disabled adult” means a person eighteen years of age or older, who has a diagnosed physical or mental impairment.

(6)  “Elderly adult” means an individual who is sixty years of age or older.

(7)  “Employer” means a person or organization who employs or contracts with one or more individuals to care for vulnerable adults, on either a paid or volunteer basis.

(6)  “Exploitation” means:

(A)  Wilfully Willfully using, withholding, transferring or disposing of funds or property of an elderly or disabled a vulnerable adult without or in excess of legal authority for the wrongful profit or advantage of another;

(B)  Acquiring possession or control of or an interest in funds or property of an elderly or disabled a vulnerable adult through the use of undue influence, harassment, duress, or fraud;

(C)  The act of forcing or compelling an elderly or disabled a vulnerable adult against his or her will to perform services for the profit or advantage of another;

(D)  Any sexual activity with an elderly or disabled a vulnerable adult when the elderly or disabled vulnerable adult does not consent or when the actor knows or should know that the elderly or disabled vulnerable adult is incapable of resisting or declining consent to the sexual activity due to age or disability or due to fear of retribution or hardship, whether or not the actor has actual knowledge of vulnerable status.

(8)  “Multi-disciplinary team” means a group of professionals and paraprofessionals, empaneled by the commissioner for the purpose of assisting in the identification and investigation of cases of abuse, neglect or exploitation and for managing and coordinating protective services.  A multi-disciplinary team may include, but is not limited to, persons who are trained and engaged in work such as medicine, mental health, education, social work, nursing, gerontology, law or law enforcement.  Additional persons may be appointed when the services of those persons are appropriate to any particular case.

(9)(7)  “Neglect” means the lack of subsistence, medical or other care necessary for well-being purposeful or reckless failure or omission by a caregiver to:

(A)(i)  provide care or arrange for goods or services necessary to maintain the health or safety of a vulnerable adult, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, unless the caregiver is acting pursuant to the wishes of the vulnerable adult or his or her representative, or a terminal care document, as defined in chapter 111 of Title 18;

(ii)  make a reasonable effort, in accordance with the authority granted the caregiver, to protect a vulnerable adult from abuse, neglect or exploitation by others;

(iii)  carry out a plan of care for a vulnerable adult when such failure results in or could reasonably be expected to result in physical or psychological harm or a substantial risk of death to the vulnerable adult, unless the caregiver is acting pursuant to the wishes of the vulnerable adult or his or her representative, or a terminal care document, as defined in chapter 111 of Title 18; or

(iv)  report significant changes in the health status of a vulnerable adult to a physician, nurse, or immediate supervisor, when the caregiver is employed by an organization that offers, provides or arranges for personal care.

(B)  Neglect may be repeated conduct or a single incident which has resulted in or could be expected to result in physical or psychological harm, as a result of subdivisions (A)(i), (ii), or (iii) of this subdivision (7).

(8)  “Plan of care” includes, but is not limited to, a duly approved plan of treatment, protocol, individual care plan, rehabilitative plan, plan to address activities of daily living or similar procedure describing the care, treatment or services to be provided to address a vulnerable adult’s physical, psychological or rehabilitative needs.

(10)(9)  “Protective services” means services and action which, action, or intervention that will, through voluntary agreement or through appropriate court action, prevent further neglect, abuse or exploitation of elderly and disabled vulnerable adults.  Such services may include, but not be limited to, supervision, guidance, counseling, petitioning for appointment of a guardian, and, when necessary, assistance in the securing of safe and sanitary living accommodations.  However, nothing in this chapter gives the commissioner authority to place the elderly or disabled person vulnerable adult in a state school or hospital, except pursuant to chapter 181 or chapter 206 of Title 18.

(10)  “Representative” means a court-appointed guardian, or an agent acting under a durable power of attorney for health care, unless otherwise specified in the terms of the power of attorney.

(11)  “Sexual activity” means a sexual act as defined in 13 V.S.A. § 3251, other than appropriate medical care or personal hygiene, or lewd and lascivious conduct.

(12)  “Substantiated report” means that the commissioner or the commissioner’s designee has determined after the investigation that a report is based upon accurate and reliable information that would lead a reasonable person to believe that the elderly or disabled vulnerable adult has been abused, neglected or exploited.

(13)  “Volunteer” means an individual who without compensation provides services through a private or public organization.

(14)  “Vulnerable adult” means any person 18 years of age or older who:

(A)  is a resident of a facility required to be licensed under chapter 71 of this title;

(B)  is a resident of a psychiatric hospital or a psychiatric unit of a hospital;

(C)  has been receiving personal care services for more than one month from a home health agency certified by the Vermont department of health or from a person or organization that offers, provides, or arranges for personal care; or

(D)  regardless of residence or whether any type of service is received, is impaired due to brain damage, infirmities of aging, or a physical, mental, or developmental disability:

(i)  that results in some impairment of the individual’s ability to provide for his or her own care without assistance, including the provision of food, shelter, clothing, health care, supervision, or management of finances; or

(ii)  because of the disability or infirmity, the individual has an impaired ability to protect himself or herself from abuse, neglect, or exploitation.

Sec. 4.  33 V.S.A. § 6903 is amended to read:

§ 6903.  REPORTING SUSPECTED ABUSE, NEGLECT, AND

              EXPLOITATION OF ELDERLY OR DISABLED VULNERABLE

              ADULTS; REPORTS

(a)  Any of the following, other than a crisis worker acting pursuant to section 1614 of Title 12, who knows of or has received information of abuse, neglect or exploitation of an elderly or disabled a vulnerable adult or who has reason to suspect that any elderly or disabled vulnerable adult has been abused, neglected or exploited shall report or cause a report to be made in accordance with the provisions of section 6904 of this title within 48 hours:

(1)  All employees, contractors and grantees of the agency of human services who are involved in caregiving,.

(2)  a A physician, osteopath, chiropractor or physician’s assistant, nurse, medical examiner, licensed nursing assistant, emergency medical services personnel, dentist, or psychologist,.

(3)  A school teacher, school librarian, school administrator, school guidance counselor, school aide, school bus driver, or school employee or school contractor who works regularly with students,.

(4)  A mental health professional, social worker other than one acting pursuant to confidentiality provisions of the Older Americans Act, person or organization that offers, provides, or arranges for personal care for vulnerable adults, a caregiver employed by a vulnerable adult, employee of or contractor involved in caregiving for a community mental health center, law enforcement officer, certified nursing assistant, emergency medical services personnel and an individual who works regularly with vulnerable adults and who is an employee of an adult day care center, area agency on aging, senior center, or meal program designed primarily to serve vulnerable adults.

(2)(5)  A hospital, nursing home, residential care home, home health agency or any entity providing nursing or nursing related services for remuneration, intermediate care facility for adults with mental retardation, therapeutic community residence, group home, developmental home, school or contractor involved in caregiving, operator or employee of any of these facilities or agencies.

* * *

Sec. 5.  33 V.S.A. § 6906 is amended to read:

§ 6906.  INVESTIGATION

* * *

(d)  A person may, within Within 30 days of notification that a report has been substantiated, a person against whom a complaint has been lodged may apply to the human services board for relief on the grounds that it is unsubstantiated.  The board shall hold a fair hearing under section 3091 of Title 3.  Unless the commissioner agrees otherwise, the fair hearing shall be given priority by the board and an expedited hearing shall be provided, with a decision issued promptly thereafter.

(e)  If a report is found to be unsubstantiated, the records shall be destroyed within 90 days after notice to the person complained about unless the person requests that the records not be destroyed retained as part of the confidential records of the department of aging and disabilities.  If no court proceeding is brought pursuant to subdivision 6903(c)(3) of this title within one year six years of the date of the notice to the person complained about against whom the complaint was lodged, the records relating to the unsubstantiated report shall be destroyed after notice to such person, unless he or she requests that the records not be destroyed.

(f)  If an appeal is filed pursuant to section subsection 6906(d) (d) of this title section or to a court, the name of the individual shall not be added to the registry until a substantiated finding of substantiated abuse, neglect, or exploitation becomes final.

(g)  If the human services board or a court reverses a substantiated finding of substantiated, the commissioner shall remove all information relating to that finding in accordance with subsection (e) of this section.

(h)  When a final determination has been made, the commissioner shall inform the vulnerable adult or his or her representative, the reporter, and, if the report is substantiated, the current employer of the individual, of the outcome of the investigation and any subsequent proceedings.

Sec. 6.  33 V.S.A. § 6907 is amended to read:

§ 6907.  REMEDIAL ACTION

(a)  Coordinated treatment plan.  If the investigation produces evidence that the elderly or disabled vulnerable adult has been abused, neglected or exploited, the commissioner shall arrange for the provision of protective services in accordance with a written coordinated treatment plan as developed by the appropriate multi-disciplinary team.

(b)  Consent to services.

(1)  Protective services shall be provided only with the consent of the elderly or disabled vulnerable adult or, his or her guardian, or through appropriate court action.  If the elderly or disabled vulnerable adult does not consent, protective services shall not be provided, unless provision of protective services is court-ordered.

(2)  In the event that the elderly or disabled vulnerable adult’s guardian is the person responsible for the abuse, neglect or exploitation, and the guardian does not consent to the investigation or receipt of protective services, the commissioner shall may petition for removal of the guardian.

Sec. 7.  33 V.S.A. § 6911 is amended to read:

§ 6911.  RECORDS OF ABUSE, NEGLECT AND EXPLOITATION

(a)  Information obtained through reports and investigations, including the identity of the reporter, shall remain confidential. and shall not be released absent a court order, except as follows: 

(1)  Written records The investigative report shall be disclosed only to:  the commissioner or person designated to receive such records; persons assigned by the commissioner to investigate reports; the person reported to have abused, neglected or exploited an elderly or disabled a vulnerable adult; the elderly person or disabled vulnerable adult or his or her representative; the office of professional regulation when deemed appropriate by the commissioner; a law enforcement agency, the state’s attorney, or the office of the attorney general, when the department believes there may be grounds for criminal prosecution, or in the course of a criminal investigation.  When disclosing information pursuant to this subdivision, reasonable efforts shall be made to limit the information to the minimum necessary to accomplish the intended purpose of the disclosure, and no other information, including the identity of the reporter, shall be released absent a court order.

(2)  Relevant information may be disclosed to the secretary of the agency of human services, or the secretary’s designee, for the purpose of remediating or preventing abuse, neglect, or exploitation, to assist the agency in its monitoring and oversight responsibilities, and in the course of a relief from abuse proceeding, guardianship proceeding, or any other court proceeding when the commissioner deems it necessary to protect the victim, and the victim or his or her representative consents to the disclosure.  When disclosing information pursuant to this subdivision, reasonable efforts shall be made to limit the information to the minimum necessary to accomplish the intended purpose of the disclosure, and no other information, including the identity of the reporter, shall be released absent a court order.

(b)  The commissioner shall maintain a registry which shall contain the following information: the names of all the individuals found on the basis of a substantiated report to have abused, neglected or exploited an elderly or disabled a vulnerable adult; the date of the finding; and the nature of the finding.  In addition, the commissioner shall require that, aside from a person’s name, at least one other personal identifier is listed in the registry to prevent the possibility of misidentification.

(c)  The commissioner or the commissioner’s designee may disclose registry information only to:

(1)  the state’s attorney or the attorney general;

(2)  the public as required by the Nursing Home Reform Act of 1986 and regulation regulations thereunder;

(3)  an employer which, as used in this section, means a person or organization who employs or contracts with one or more persons individuals to care for elderly or disabled vulnerable adults, on either a paid or volunteer basis.  The employer shall may submit a request concerning a current employee, volunteer, or contractor or a person an individual to whom the employer has given a conditional offer of a contract, volunteer position, or employment.  The request shall be accompanied by a release signed by the current or prospective employee, volunteer, or contractor.  If that person individual has a record of a substantiated report, the commissioner shall provide the registry information;

(4)  a person or organization serving vulnerable adults by assisting with employer functions, offering, providing, or arranging for home sharing, or providing personal care services, developmental services, or mental health services for vulnerable adults.  The person or organization may submit a request concerning an individual who has applied to provide such services or an individual who is already so engaged.  The request shall be in writing and shall be accompanied by a release from the person applying for or already providing such services.  If the person has a record of a substantiated report, the commissioner shall provide the registry information;

(4)(5)  the commissioner of social and rehabilitation services, or the commissioner’s designee, for purposes related to the licensing or registration of facilities regulated by the department of social and rehabilitation services;

(6)  the commissioner of developmental and mental health services, or the commissioner’s designee, for purposes related to oversight and monitoring of persons who are served by or compensated with funds provided by the department of developmental and mental health services, including persons to whom a conditional offer of employment has been made; and

(7)  upon request or when relevant to other states’ adult protective services offices.

* * *

(g)  Volunteers shall be considered employees for purposes of this section.

Sec. 8.  33 V.S.A. § 6913 is amended to read:

§ 6913.  PENALTIES; DEFERRED SENTENCING; CRIMINAL SEXUAL

              ACTIVITY BY CAREGIVER; ABUSE; NEGLECT;

              EXPLOITATION

(a)  Any person who engages in abuse, as defined in section subdivision 6902(1)(B) or (C) of this title shall be fined not more than $10,000.00 or be imprisoned not more than 18 months, or both.

(b)  Any person who willfully engages in exploitation as defined in section 6902(7)(A) subdivision 6902(6)(A), (B) or (C) of this title, shall be fined not more than $10,000.00 or be imprisoned for not more than 18 months, or both.

(c)  Any caregiver who purposely, knowingly or recklessly fails to provide subsistence or medical or other care necessary for the well-being of an elderly or disabled adult neglects a vulnerable adult as defined in subdivision 6902(7) of this title shall be fined not more than $10,000.00 or be imprisoned for not more than 18 months, or both.

(d)  Any caregiver who engages in any sexual activity with an elderly or disabled abuse of a vulnerable adult while providing a service for which he or she receives financial compensation in violation of subdivision 6902(1)(D) of this title shall be fined not more than $10,000.00 or be imprisoned not more than two years, or both.

(e)  Any mandatory reporter as defined in section subdivision 6903(a)(1) and, (2), (3), (4) and (5) of this title that willfully violates section subsection 6903(a) of this title shall be fined not more than $500.00 or be imprisoned for not more than one year, or both.

(f)  Notwithstanding the limitation of 13 V.S.A. § 7041(a), a court may, on the motion of a party or on its own motion, with or without the consent of the state’s attorney, defer sentencing and place the defendant on probation upon such terms and conditions as it may require.

(g)  Whenever the commissioner finds, after notice and hearing, that a person has committed sexual abuse as defined in subdivision 6902(1)(D), exploitation as defined in subdivision 6902(6)(A) or (B) in an amount in excess of $500.00, abuse which causes grievous injury to or the death of a vulnerable adult, or neglect which causes grievous injury to or the death of a vulnerable adult, the commissioner may impose an administrative penalty of not more than $10,000.00 for each violation, except as provided in subsection (h) of this section.  The commissioner shall notify the office of professional regulation, or any other professional licensing board applicable to the violator, of any decision made pursuant to this subsection.

(h)  Whenever the commissioner finds, after notice and hearing, that a mandatory reporter, as defined in subdivisions 6903(a)(1), (2), (3), (4) and (5) of this title, has willfully violated the provisions of subsection 6903(a), the commissioner may impose an administrative penalty not to exceed $500.00 per violation.  For purposes of this subsection, every 24 hours that a report is not made beyond the period for reporting required by subsection 6903(a) shall constitute a new and separate violation, and a mandatory reporter shall be liable for an administrative penalty of not more than $500.00 for each 24-hour period, not to exceed a maximum penalty of $5,000.00 per reportable incident.

(i)  A person who is aggrieved by a decision under subsection (g) or (h) may appeal that decision to the superior court where either party may request trial by jury.

Sec. 9.  33 V.S.A. § 6914 is amended to read:

§ 6914.  ACCESS TO CRIMINAL RECORDS

(a)  The commissioner may obtain from the Vermont crime information center the record of convictions of any person to the extent that the commissioner has determined by rule that such information is necessary to protect elderly or disabled vulnerable adults.

(b)  An employer may ask the commissioner for to obtain from the Vermont crime information center the record of convictions of a person who is a current employee, volunteer or contractor, or a person to whom the employer has given a conditional offer of a contract, volunteer position, or employment.  The request shall be in writing and shall be accompanied by a release by the current or prospective contractor or employee.  If the person has a record of convictions, the commissioner shall inform the employer of the date and type of conviction.

(c)  A person or organization serving vulnerable adults by assisting with employer functions, offering, providing, or arranging for home sharing, personal care services, developmental services, or mental health services for vulnerable adults, may submit a request to the commissioner concerning an individual who has applied to provide such services or an individual who is already so engaged.  The request shall be in writing, and shall be accompanied by a release from the individual applying for or already providing such services.  If the individual has a record of convictions, the commissioner shall inform the person or organization submitting the request of the date and type of conviction.

(d)  The commissioner of developmental and mental health services, or the commissioner’s designee, for purposes related to oversight and monitoring of persons who are served by or compensated with funds provided by the department of developmental and mental health services, may ask the Vermont crime information center for the record of convictions of a person who is a current employee, volunteer or contractor, or a person to whom the employer has given a conditional offer of a contract, volunteer position, or employment.  If the individual has a record of convictions, the Vermont crime information center shall inform the commissioner, or the commissioner’s designee, of the date and type of conviction.

(e)  Information released to an employer under this section shall not be released or disclosed by the employer to any person.  Any person who violates this subsection shall be fined not more than $500.00.

(f)  Volunteers shall be considered employees for purposes of this section.

(d)(g)  As used in this section:,

     (1)  “Employer” means any person who contracts with or employs one or more persons to care for elderly or disabled adults.

     (2)  “Commissioner commissioner” means the commissioner of the department of aging an disabilities or the commissioner of developmental and mental health services, or their designees.

Sec. 10.  33 V.S.A. § 6931 is amended to read:

§ 6931.  DEFINITIONS

In addition to the definitions in section 6902 of this title, for the purposes of this subchapter, “interested person” means a guardian representative of the elderly or disabled vulnerable adult, the commissioner of the department of aging and disabilities, or the commissioner’s designee.

Sec. 11.  33 V.S.A. § 6933 is amended to read:

§ 6933.  REQUEST FOR RELIEF

(a)  An elderly or disabled A vulnerable adult or an interested person on behalf of an elderly or disabled a vulnerable adult may seek relief from abuse, neglect or exploitation by filing a petition requesting one or both of the following orders:

(1)  That the defendant refrain from abusing, neglecting or exploiting the elderly or disabled vulnerable adult.

* * *

Sec. 12.  33 V.S.A. § 6935(a) is amended to read:

(a)  If the court finds that the defendant has abused, neglected or exploited the elderly or disabled vulnerable adult, the court shall make such order as it deems necessary to protect the elderly or abused vulnerable adult.  The plaintiff shall have the burden of proving abuse, neglect or exploitation by a preponderance of the evidence.  Relief shall be granted for a fixed period of time, at the expiration of which the court may extend any order, upon motion of the plaintiff, for such additional time as it deems necessary to protect the elderly or disabled vulnerable adult from abuse, neglect or exploitation.  The court may modify its order at any subsequent time upon motion by either party and a showing of a substantial change in circumstances.  If the motion for extension or modification of the order is made by an interested person, notice shall be provided to the vulnerable adult, and the court shall determine whether the vulnerable adult is capable of expressing his or her wishes with respect to the motion and, if so, whether the vulnerable adult wishes to request an extension or modification.  If the court determines the vulnerable adult is capable of expressing his or her wishes and does not wish to pursue the motion, the court shall dismiss the motion.

Sec. 13.  33 V.S.A. § 6936(a) is amended to read:

(a)  In accordance with the Family Court Rules for Family Proceedings, temporary orders under this subchapter may be issued ex parte, without notice to the defendant, upon motion and findings by the court that the defendant has abused, neglected or exploited the elderly or disabled vulnerable adult and that serious and irreparable harm to the physical health or financial interests of the elderly or disabled vulnerable adult will result without ex parte relief.

Sec. 14.  33 V.S.A. § 309 is amended to read:

§ 309.  ACCESS TO RECORDS

(a)  The commissioner may obtain from the Vermont crime information center the record of convictions of any person to the extent the commissioner has determined by rule that such information is necessary to regulate a facility or individual subject to regulation by the department.  The commissioner shall first notify the person whose record is being requested.

* * *

(e)  As used in this section,:

(1)  “Commissioner” means the commissioner or the commissioner’s designee.

(2)  “Employee” shall include volunteers.

(3)  “Substantiated reports of child abuse” mean report means reports of child abuse substantiated under section 4915 of this title.

(4)  “Volunteer” means an individual who without compensation provides services through a public or private organization.

Sec. 15.  33 V.S.A. § 4912(11) is added to read:

§ 4912.  DEFINITIONS

As used in this subchapter:

* * *

(11)  “Covered entity” means an employer, contractor, or organization that is regulated, certified, licensed, designated, or contracted with to provide care, custody, treatment or supervision of children, the elderly, vulnerable adults, or persons with disabilities, whose license, registration, certification, designation, or other similar status may be jeopardized by the employment of a specific individual with a substantiated report of child abuse or a substantiated report of abuse, neglect, or exploitation of a vulnerable adult.

Sec. 16.  33 V.S.A. § 4919 is amended to read:

§ 4919.  DISCLOSURE OF INFORMATION

(a)  The commissioner or the commissioner’s designee shall disclose the existence of a substantiated report of child abuse or abuse, neglect, or exploitation of a vulnerable adult, to the owner or operator of a facility regulated by the department for the purpose of informing the owner or operator that employment of a specific individual may result in loss of license or registration.

* * *

(d)  The secretary of the agency of human services may authorize the commissioner to disclose the existence of a substantiated report of child abuse or a substantiated report of abuse, neglect or exploitation of a vulnerable adult to:

(1)  an owner or operator of a facility;

(2)  a person who is determined to be a covered entity; or

(3)  a person who is authorized by the agency to make an offer of employment, if such information is used to determine whether to hire a specific individual providing care, custody, treatment, or supervision of children, the elderly, vulnerable adults, or persons with disabilities.

(e)  Volunteers shall be considered employees for purposes of this section.

Sec. 17.  STATUTORY REVISION

In 33 V.S.A. chapter 69, §§ 6901-6941 (reports of abuse, neglect and exploitation), “an elderly and disabled adult” is changed to “a vulnerable adult”; “elderly and disabled adults” is changed to “vulnerable adults”; “an elderly or disabled adult” is changed to “a vulnerable adult”; “the elderly or disabled adult” is changed to “the vulnerable adult”; and “elderly or disabled adults” is changed to “vulnerable adults”.

Sec. 18.  REPEAL

14 V.S.A. chapter 111, subchapter 11 (Powers of Attorney) is repealed.

Sec. 19.  POLICY

Beginning more than a decade ago, the state of Vermont embarked upon an effort to enable persons with disabilities to live in settings they prefer and ensure they are not confined unnecessarily in institutional settings.  In the ensuing years, Vermont has implemented policies and programs promoting consumer choice, independence, and self‑determination, but more work remains to be done in order to realize the goal of ensuring that no Vermonter with a disability is unjustifiably isolated or denied the opportunity to live with respect and dignity in the community.

Sec. 20.  LEGISLATIVE FINDINGS

The General Assembly hereby finds that:

(1)  In June 1999, the United States Supreme Court ruled in L.C. and E.W. vs. Olmstead that the Americans with Disabilities Act (ADA) requires a state to provide community-based services for persons with disabilities when the state’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such placement, and the placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others with disabilities.

(2)  The Olmstead Court also suggested that development of a comprehensive, effectively working plan for placing qualified persons with disabilities in the most integrated settings and a waiting list that moves at a reasonable pace could be an important way for a state to demonstrate its commitment to achieving compliance with the ADA.

(3)  Vermont now has an opportunity to plan its own future and reduce its vulnerability to claims that it discriminates against Vermonters with disabilities by developing a comprehensive, effectively working plan that takes account of:

(A)  people with developmental disabilities living in nursing homes, group homes, and ICF/MRs (intermediate care facilities for persons with mental retardation);

(B)  elderly Vermonters and others with physical or cognitive disabilities living in nursing homes and residential care homes because of the lack of personal care attendant and other community-based supportive services;

(C)  persons with psychiatric disabilities confined to institutions or at risk of institutionalization or involuntary treatment;

(D)  persons with psychiatric or developmental disabilities who are at risk of placement in correctional facilities;

(E)  other persons with disabilities who are at risk of not having or receiving services or supports in the most integrated settings.

(4)  An Olmstead advisory commission is needed to assist the secretary of human services with the development of a comprehensive, effectively working plan for placing qualified people with disabilities in the most integrated settings so that Vermonters with disabilities are not unjustifiably isolated and denied the opportunity to live with respect and dignity in the community.

Sec. 21.  3 V.S.A. § 3096 is added to read:

§ 3096.  OLMSTEAD ADVISORY COMMISSION

(a)  The Olmstead advisory commission is established in the agency of human services.

(b)  The commission shall consist of:

(1)  three members appointed by the secretary of human services;

(2)  the commissioner of the department of education, or his or her designee;

(3)  the secretary of transportation, or his or her designee;

(4)  four individuals appointed by the governor from a list of at least ten individuals recommended by the Vermont Center for Independent Living to represent the interests of Vermonters with disabilities;

(5)  the commissioner of the department of corrections, or his or her designee;

(6)  the executive director of the state housing authority, or his or her designee; and

(7)  two individuals appointed by the governor from a list of at least ten individuals recommended by the secretary of human services to represent nongovernmental providers.

(c)  The commission shall be attached to the office of the agency of human services for administrative support.  Consumer representatives shall be entitled to per diem compensation and reimbursement of expenses in accordance with section 1010 of Title 32.

(d)  The commission shall be authorized to meet no more than six times per year, and shall:

(1)  meet, gather testimony and other information from consumers, advocates, providers, other state advisory bodies, and other interested persons, and hold public hearings to identify barriers that prevent people with disabilities from living in the most integrated settings;

(2)  determine whether any existing state or federal administrative policies, rules, and organizational structures constitute barriers that prevent people with disabilities from living in the most integrated settings;

(3)  examine the current allocation of resources and identify what additional resources are needed to ensure that Vermont has a comprehensive, effectively-working plan for placing qualified people with disabilities in the most integrated settings and a waiting list for community-based services that moves at a reasonable pace.  The commission, in consultation with the secretary of human services, shall propose to the general assembly a long term financial plan supporting implementation of the placement plan that includes anticipated revenues and expenditures by state agencies and community organizations, recommendations for aligning revenues and expenditures, and any other recommendations or information needed to ensure that the placement plan is financially sustainable.

(4)  in consultation with the secretary of human services, develop a comprehensive, effectively working plan for placing qualified people with disabilities in the most integrated settings and a waiting list for community‑based services that moves at a reasonable pace; and

(5)  submit a status report on or before January 1 of each year to the governor and the general assembly.

 

 

(e)  All agencies of state government are directed to cooperate with the commission in providing information needed by the commission to accomplish its mission.

Sec. 22.  SUNSET

     3 V.S.A. § 3096 is repealed, effective July 1, 2005.

Approved:  June 13, 2002