Download this document in MS Word 97 format

NO. 43. AN ACT RELATING TO GUARDIANSHIP SERVICES FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES.

(S.122)

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

Sec. 1. 18 V.S.A. chapter 215 is amended to read:

Chapter 215. *[Protective]* Guardianship Services for *[Mentally Retarded Persons]* People with Developmental disabilities

§ 9301. POLICY

It is the policy of the state of Vermont to assure that *[mentally retarded]* citizens *[who are not residents of state schools or hospitals]* with developmental disabilities receive such *[supervision,]* protection and assistance as is necessary to allow them to live safely within the communities of this state. In furtherance of this policy, this *[Vermont protective services for mentally retarded persons act]* chapter is enacted to permit the supervision of those *[mentally retarded persons]* individuals who are unable to *[fully]* provide for their own needs on account of developmental disabilities and to protect such persons from violations of their human and civil rights. It is the purpose of this chapter to limit the state’s *[supervision]* guardianship of *[mentally retarded persons]* people with developmental disabilities who are living in the community to the extent necessary to ensure their safety and well-being.

§ 9302. DEFINITIONS

*[

The words and phrases in this chapter shall be defined as follows]* As used in this chapter:

(1) *["Mentally retarded person" means any person who has been diagnosed as having significantly subaverage intellectual functioning which has been manifested prior to the age of 19 and which exists concurrently with deficits in adaptive behavior]* "Person with developmental disabilities" means:

(A) a person with a severe, chronic disability that must arise before the person reaches the age of 18, and results in:

(i) mental retardation, autism, or pervasive developmental disorder; and

(ii) deficits in adaptive behavior at least two standard deviations below the mean for a normative comparative comparison group; or

(B) a person with a developmental disability who was receiving services on July 1, 1996.

(2) "Commissioner" means the commissioner of developmental and mental health services *[unless a different commissioner within the agency of human services is designated by the secretary of human services]*.

(3) "Near relative" means a spouse, parent, step-parent, brother, sister or grandparent.

(4) "Interested person" means a responsible adult who has a direct interest in a *[mentally retarded]* person with developmental disabilities and includes, but is not limited to, the *[mentally retarded]* person with developmental disabilities, a near relative, guardian, public official, social worker or clergyman.

(5) *["Mentally retarded person in need of supervision and protection"]* "Person in need of guardianship" means a person who *[is]*:

(A) *[mentally retarded]* has developmental disabilities within the meaning of this chapter*[,]*;

(B) is unable to personally exercise some or all of the powers and responsibilities described in section 9310 of this title*[,]*; and

(C) is not receiving the active assistance of a responsible adult to carry out the powers and responsibilities described in section 9310 of this title.

(6) "Guardianship *[of the person]*" means the legal status of *[mentally]* *[retarded]* a person with developmental disabilities who is subject to the commissioner’s exercise of some or all of the powers listed in section 9310 of this title.

(7) *["Protective supervision" means the legal status of a mentally retarded person who is subject to the commissioner’s exercise of some, but not all of the powers listed in section 9310 of this title.

]*

(8) "Qualified *[mental retardation]* developmental disabilities professional" means a psychologist, physician, registered nurse, educator or social worker with specialized training or at least one year of experience in working with *[mentally retarded persons]* people with developmental disabilities.

(9) "Respondent" means a person who is the subject of a petition filed pursuant to section 9305 of this title.

(10) "Department" means the department of developmental and mental health services.

§ 9303. JURISDICTION AND VENUE

(a) The *[district]* family court shall have exclusive jurisdiction over all proceedings brought under the authority of this chapter. Proceedings under this chapter shall be commenced in the *[district]* family court *[circuit]* for the county in which the *[mentally retarded]* person with developmental disabilities is residing.

(b)(1) The probate court shall have concurrent jurisdiction to appoint the commissioner to serve as a temporary guardian for a person in need of guardianship when:

(A) a petition has been filed pursuant to section 3063 of Title 14;

(B) the probate court finds that the respondent is a person in need of guardianship as defined in subdivision 9302(5) of this title; and

(C) no suitable private guardian can be located.

(2) Within 60 days after appointment as a temporary guardian, the commissioner shall file a petition in family court for appointment under this chapter and for modification or termination of the probate court order.

§ 9304. *[PERSONS ELIGIBLE]* ELIGIBILITY FOR *[PROTECTIVE SUPERVISION OR]* GUARDIANSHIP OF THE PERSON

*[

Protective supervision or guardianship of the person]* Guardianship may be provided to any *[mentally retarded]* person with developmental disabilities who:

(1) is at least 18 years of age*[,]*; and

(2) is in need of supervision and protection for *[his]* the person’s own welfare or the public welfare*[, and

(3) is not a resident of a state school or hospital or is to be discharged from a state school or hospital at such time as guardianship or protective supervision is ordered under this chapter or under chapter 111 of Title 14]*.

§ 9305. PETITION FOR *[PROVISION OF PROTECTIVE SUPERVISION OR]* GUARDIANSHIP *[OF THE PERSON

]*

Any interested person with knowledge of the facts alleged may request the state’s attorney having jurisdiction to file a petition with the *[district]* family court alleging that person is *[mentally retarded]* developmentally disabled and in need of *[protective supervision or]* guardianship *[of the person]*. The state’s attorney shall file the petition unless it clearly appears that the petition will be insufficient to support an action under this chapter. The petition shall set forth:

(1) The name *[and]*, address, and phone number of the *[petitioner]* interested person who requested the filing of the petition, and the nature of his or her interest in the person alleged to *[be retarded]* have developmental disabilities;

(2) The name, address, phone number, and age of the *[person alleged to be mentally retarded]* respondent and the name *[and]*, address, and phone number of *[the nearest relative and spouse, if any, of the allegedly retarded person]* any near relative of the respondent and the name of any guardian or person holding a power of attorney of the person;

(3) The reasons and the supporting facts why *[supervision and protection are]* guardianship is needed;

(4) The petition shall be limited to information that is relevant to the respondent’s need for guardianship.

§ 9306. *[PREPARATION OF]* COMPREHENSIVE EVALUATION

(a) The *[district]* family court shall mail a copy of any petition filed pursuant to section 9305 of this title to the commissioner, who shall promptly arrange for the preparation of a comprehensive evaluation of the respondent. The evaluation shall include *[reports describing the respondent’s developmental and social functioning and those educational and habilitative services received by the respondent prior to the evaluation]* information regarding the respondent’s developmental and social functioning which is relevant to the person’s need for guardianship. The evaluation shall contain recommendations and supporting data regarding the ability of the respondent to function in society without *[supervision and protection]* guardianship and shall specify those activities for which the respondent needs supervision and protection, and shall include information regarding the availability of one or more responsible adults to assist the individual in decision-making.

(b) The evaluation shall be prepared by a qualified *[mental retardation]* developmental disabilities professional *[and shall be conducted in a community mental health center, school, hospital or other suitable facility]*. The evaluation shall be completed within *[30]* 40 days of the court’s service of the petition upon the commissioner unless the time period is extended by the court for cause. The commissioner shall send the request for evaluation to the evaluator at least 30 days before it is due. The commissioner shall provide for reimbursement of the costs of the evaluation.

(c) The department shall send a copy of the evaluation to the court, the state’s attorney, the director of guardianship services, and to counsel for the respondent. The evaluation is a confidential document, and shall not be further disclosed by the court and the parties without the consent of the respondent or a person authorized to act on behalf of the respondent, except that the department shall release the evaluation to a developmental services agency, if necessary, for the purpose of obtaining or improving services to the person.

(d) The evaluation shall not be used as evidence in any other judicial proceeding without the consent of the respondent or the respondent’s guardian or upon order of the court.

§ 9307. NOTICE OF PETITION AND HEARING

*[

Upon the]* Within five days of filing *[of]* the petition, the court shall fix a time and place for hearing and *[cause the petitioner to serve respondent with the petition and notice of the hearing at least 10 days before the time set for hearing. The court]* shall mail a copy of the petition and notice of hearing to the respondent, the respondent’s counsel, *[respondent’s spouse or nearest relative,]* the guardian for the respondent, if any, the *[petitioner]* interested person who requested the filing of the petition, the commissioner, the state’s attorney and such other persons as the court *[directs]* determines. The notice of hearing shall be mailed to the respondent’s near relatives. The hearing shall be held not *[less]* fewer than *[10]* 20 nor more than *[20]* 30 days after the filing of the evaluation with the court. The hearing may be continued for good cause shown for not more than 15 additional days.

§ 9308. APPOINTMENT OF COUNSEL

Upon the filing of the petition, the court shall *[notify the respondent that he shall be afforded the right to counsel. If respondent is unable to pay for counsel, compensation]* appoint counsel for the respondent, and shall notify the respondent of the name, address, and phone number of the appointed counsel. Compensation shall be paid by the department *[of developmental and mental health services]* to counsel assigned by the court, any rule or law to the contrary notwithstanding. Counsel shall receive a copy of the petition and comprehensive evaluation and such other documents as may be received or issued by the court. Counsel shall consult with respondent prior to the hearing and, to the maximum extent possible, explain to *[him]* the respondent the meaning of the proceedings and of all relevant documents.

§ 9309. HEARING AND APPEAL

(a) The respondent, the *[petitioner]* state’s attorney and all other persons to whom notice has been given pursuant to section 9307 of this title may attend the hearing and testify. The court may in its discretion receive the testimony of any other person. The respondent and *[petitioner]* state’s attorney may subpoena, present and cross-examine witnesses, including those who prepared the comprehensive evaluation. The court may exclude any person not necessary for the conduct of the hearing. The state’s attorney shall consult with the interested person who requested the filing of the petition regarding the facts of the case.

(b) The hearing shall be conducted in a manner consistent with orderly procedure and in a physical setting not likely to have a harmful effect on the mental or physical health of the respondent. In all *[such]* proceedings, the court shall have taken and preserved an accurate record of the proceedings. The court shall not be bound by the evidence contained in the comprehensive evaluation, but shall make its determination upon the entire record. In all cases, the court shall make specific findings of fact, state separately its conclusions of law, and direct the entry of an appropriate judgment. The general public shall be excluded from hearings under this chapter, and only the parties, their counsel, the interested person who requested the filing of the petition, witnesses and other persons accompanying a party for his or her assistance, and such other persons as the court finds to have a proper interest in the case or in the work of the court may be admitted by the court. The proceedings of the hearing shall be confidential, and a record of the proceedings may not be released without the consent of the respondent or the respondent’s guardian.

(c) The state’s attorney shall appear and present evidence in support of the petition. The *[petitioner]* person who requested the filing of the petition may be represented by private counsel in any proceedings brought under this chapter.

(d) If, upon completion of the hearing and consideration of the record, the court finds that the respondent is not *[mentally retarded or is mentally retarded, but not in need of supervision and protection]* a person in need of guardianship, as defined in subdivision 9302(5) of this title, it shall dismiss the *[application]* petition and seal the records of the proceedings.

(e)(1) *[If]* The court shall enter judgment specifying the powers of the commissioner pursuant to section 9310 of this title if, upon completion of the hearing and consideration of the record, the court finds that the petitioner has proved by *[a fair preponderance of the]* clear and convincing evidence that the respondent is:

(1) *[mentally retarded,]* a person with developmental disabilities;

(2) at least 18 years of age*[,]*;

(3) *[not a resident of a state school or hospital or will be discharged from a state school or hospital at such time as guardianship or protective supervision is ordered under this chapter or under chapter 111 of Title 14, and]*

(4) in need of *[supervision and protection]* guardianship for his or her own welfare or the public welfare*[, it shall enter judgment specifying the powers of the commissioner pursuant to section 9310 of this title]*.

(f) The court may grant or restrict the powers of guardianship to the commissioner. An appointment of the commissioner to provide guardianship shall not constitute a judicial finding that the person is legally incompetent for all purposes, but shall only restrict the person’s rights with respect to those powers expressly granted to the commissioner.

*[

(f)]*(g) Any party to the proceeding before the *[district]* family court may appeal the court’s decision. The appeal shall be taken in such manner as the supreme court may by rule provide for appeals from the *[district]* family court.

§ 9310. POWERS OF COMMISSIONER AS GUARDIAN *[OF THE PERSON

]*

(a) The court may appoint the commissioner guardian of the *[person]* respondent if it determines that a guardian is needed to supervise and protect the *[retarded person]* respondent through the exercise of any or all of the following powers:

(1) The power to exercise general supervision over the *[retarded person]* respondent. This includes choosing or changing the residence, care, habilitation, education, and employment of the *[retarded person]* respondent and the power to approve or withhold approval of the *[retarded person’s request to sell or in any way encumber his personal or real property]* sale or encumbrance of real property of the respondent;

(2) The power to approve or withhold approval of any contract*[, except for necessaries, which the retarded person wishes to make]* by or in the name of the respondent;

(3) The power to obtain legal advice and to commence or defend against judicial actions in the name of the *[retarded person]* respondent;

(4) The power to *[consent to surgical operations in non-emergency cases as provided in section 9312 of this title]* seek, obtain, and give consent to initiation and continuation of medical and dental treatment that best promotes the health, comfort, and well-being of the respondent, or to withhold consent for initiation or continuation of treatment which does not promote the health or well-being of the respondent. In exercising this power, the commissioner shall be guided by the wishes and preferences of the individual. Any decision to withhold or abate medical treatment for an irreversible or terminal condition shall be reviewed by the department’s ethics committee. Nothing in this chapter shall be interpreted as giving the commissioner authority to consent to sterilization, lobotomy, involuntary administration of psychotropic medications, surgery of the brain for the purpose of modifying behavior, or electroconvulsive therapy for the respondent.

(b) Nothing in this chapter shall give the commissioner authority to place a *[mentally retarded]* person with developmental disabilities in a *[state school or]* state hospital except pursuant to *[section 7601 et seq. of Title 18 or section 8801 et seq. of Title 18]* chapter 181 of this title.

(c) The commissioner shall exercise *[his]* supervisory authority over the *[retarded person]* respondent in a manner which is least restrictive of the *[retarded]* person’s personal freedom consistent with the respondent’s need for supervision and protection.

*[

§ 9311. POWERS OF COMMISSIONER WHEN PROVIDING PROTECTIVE SUPERVISION

The court may place the mentally retarded person under the protective supervision of the commissioner if it determines that appointment of the commissioner is needed to supervise and protect the retarded person through the exercise of some, but not all of the powers enumerated in section 9310 of this title. The court may further restrict each individual power. An appointment of the commissioner to provide protective supervision shall not constitute a judicial finding that the mentally retarded person is legally incompetent but shall restrict his rights with respect to those powers expressly granted to the commissioner.

§ 9312. CONSENT FOR MEDICAL TREATMENT

Except as otherwise provided in this section, the commissioner shall obtain the informed consent from a near relative for a surgical operation necessary to save the life, eyesight, hearing or limb of any persons receiving services under this chapter. If such relatives cannot be found after diligent search, or in the case of an emergency, the commissioner may give such consent upon the advice of the chief medical officer of the hospital to which the retarded person has been admitted. When a retarded person whose right to consent to surgery has not been restricted pursuant to section 9310 of this title is admitted to a hospital for surgery, the chief medical officer shall determine if the person’s medical condition is such that the person has sufficient capacity to make a responsible decision. If the person has such capacity, his informed consent shall be obtained before such surgery. In such cases the person’s consent shall be determinative and no other consent is necessary. No person who consents to the performance of a surgical operation pursuant to the provisions of this section shall be civilly or criminally liable for the performance or the manner of performing such operation. No person who acts within the scope of the authority conferred by such consent in the course of discharging his official duties shall be civilly or criminally liable for the performance of such operation, but the provisions of this chapter shall not affect any liability which they may incur as a consequence of the manner in which such operation is performed.]*

§ 9313. DUTIES OF COMMISSIONER WHEN PROVIDING *[PROTECTIVE OR]* GUARDIANSHIP SERVICES

(a) When providing *[protective or]* guardianship services to a *[mentally retarded]* person with developmental disabilities, the commissioner shall maintain close contact with the *[mentally retarded]* person with developmental disabilities, no matter where the person is living in this state, and shall permit and encourage maximum self-reliance on the part of the *[mentally retarded]* person with developmental disabilities under his or her protection. The commissioner shall permit and encourage involvement by the *[retarded]* person with developmental disabilities, and *[his parents, spouse or near relatives]* family members, and other individuals of the person’s choice in planning and *[decision making on behalf of the retarded person]* decision-making.

(b) In addition to the supervisory powers vested in the commissioner by the court pursuant to section 9310 *[or section 9311]* of this title, the commissioner shall *[assure that]* assist any *[retarded]* person who is under guardianship *[or protective supervision is assisted in obtaining]* to obtain those services to which *[he]* the person is lawfully entitled and which *[he]* the person needs in order to maximize *[his]* opportunities for social and financial independence. Those services include, but are not limited to:

(1) Education services for a *[retarded]* person with developmental disabilities who is of school age;

(2) Residential services for any *[retarded]* person with developmental disabilities who lacks adequate or appropriate housing or residential supervision;

(3) Medical and dental services as needed;

(4) Therapeutic and habilitative services, adult education, vocational rehabilitation or other appropriate programs or services for any *[retarded]* person with developmental disabilities who is in need of such training or services;

(5) Counseling and social services;

(6) Counseling and assistance in the use of and handling of money.

§ 9314. ANNUAL REVIEW

(a) The commissioner shall prepare an annual review of the social adjustment and progress of every person who is receiving *[protective or]* guardianship services under this chapter. A copy of the review shall be kept on file by the commissioner and shall be made available upon the request of the *[mentally retarded]* person with developmental disabilities, *[his parent or spouse]* and such other *[persons]* people as receive the written permission of the person or the commissioner.

(b) The commissioner shall annually review the legal status of each person receiving services under this chapter. If the commissioner determines that the annual review of social adjustment and progress warrants a modification or termination of *[protective or]* guardianship services for the *[retarded]* person, *[he]* the commissioner shall petition the *[district]* family court pursuant to section 9316 of this title for the appropriate relief.

§ 9315. REVIEW OF COMMISSIONER’S DECISION

A person who is receiving services under this chapter may appeal a decision of the commissioner in accordance with section 3091 of Title 3 or by petition to the family court.

§ 9316. MODIFICATION OR TERMINATION OF *[PROTECTIVE OR]* GUARDIANSHIP SERVICES

(a) The commissioner shall provide *[protective or]* guardianship services in accordance with the order of the *[district]* probate or family court until termination or modification thereof by the court.

(b) The commissioner, the *[mentally retarded]* person with developmental disabilities or any interested person may petition the appointing court or the family court *[where venue lies]* for the district where the person resides to modify or terminate the judgment pursuant to which the commissioner is providing *[protective supervision or]* guardianship *[of the person for a mentally retarded person]*. The petitioner, or the commissioner as petitioner, and the respondent shall be the parties to a petition to modify or terminate guardianship.

(c) Notice and hearing on the petition shall proceed in the manner set forth in sections 9307-9309 of this title.

§ 9317. GENERAL PROVISION

The commissioner may delegate his or her powers and duties under this chapter to staff within *[his]* the department, and *[he]* may adopt, pursuant to *[section 803]* chapter 25 of Title 3, such rules and regulations *[as he determines]* necessary for the proper and efficient administration of this chapter.

Approved: June 13, 2001