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H.424

AN ACT RELATING TO GUARDIANSHIPS

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

Sec. 1.  14 V.S.A. § 3061 is amended to read:

§ 3061. DEFINITIONS

The words and phrases used in this subchapter shall be defined as follows:

* * *

(4)  "Mentally retarded" “Developmentally disabled” means significantly subaverage intellectual functioning which exists concurrently with deficits in adaptive behavior;

* * *

(11)  "Respondent" means a person who is the subject of a petition filed pursuant to section 3063 of this title or a ward who is the subject of any subsequent petition, motion or action filed pursuant to this subchapter.

(12)  “Party” shall have the same meaning as defined by Rule 17(a)(3) and (b) of the Vermont Rules of Probate Procedure.

(13)  “Ward” means a person under a guardianship order.


Sec. 2.  14 V.S.A. § 3065 is amended to read:

§ 3065.  COUNSEL

(a)(1)  Counsel shall be appointed for the respondent in initial proceedings relating to an involuntary guardianship up to and including the appointment of a guardian under section 3069 or 3070 of this title or dismissal of the petition under section 3068 of this title. Counsel shall have the right to withdraw after a guardian is appointed or after dismissal.  The respondent shall have the right to be represented by counsel of his or her own choosing at any stage of a guardianship proceeding.  Unless a respondent is already represented, the court:

(A)  shall appoint counsel for the respondent when an initial petition for guardianship is filed;

(B)  shall appoint counsel for the respondent in any subsequent proceeding if the respondent or a party requests appointment in writing; and

(C)  may appoint counsel for the respondent on the court’s initiative in any subsequent proceeding.

(2)  Appointed counsel shall have the right to withdraw upon conclusion of the proceeding for which he or she has been appointed.

(b)  Counsel shall receive a copy of the petition upon appointment and copies of all other documents upon filing with the court.  Counsel shall consult with the respondent prior to the any hearing and, to the maximum extent possible, explain to the respondent the meaning of the proceedings and of all relevant documents.  Counsel for the respondent shall act as an advocate for the respondent and shall not substitute counsel’s own judgment for that of the respondent on the subject of what may be in the best interest of the respondent.  Counsel’s role shall be distinct from that of a guardian ad litem if one is appointed.  At a minimum, counsel shall endeavor to ensure that:

(1)  the wishes of the respondent, including those contained in an advance directive, as to the matter before the court are presented to the court;

(2)  there is no less restrictive alternative to guardianship or to the matter before the court;

(3)  proper due process procedure is followed;

(4)  no substantial rights of the respondent are waived, except with the respondent’s consent and the court’s approval, provided that the evaluation and report required under section 3067 of this title and the hearing required under section 3068 of this title may not be waived;

(5)  the petitioner proves allegations in the petition by clear and convincing evidence in an initial proceeding, and applicable legal standards are met in subsequent proceedings;

(6)  the proposed guardian is a suitable person to serve or to continue to serve; and

(7)  if a guardian is appointed, the initial order or any subsequent order leaves the ward with as much autonomy as is reasonably possible.

     (c)  Respondent's counsel shall be compensated from the respondent's estate unless the respondent is found indigent in accordance with Rule 3.1 of the Rules of Civil Procedure.  For indigent respondents, the court shall maintain a list of pro bono counsel from the private bar to be used before appointing nonprofit legal services organizations to serve as counsel.

Sec. 3.  14 V.S.A. § 3068a is added to read:

§ 3068a.  RIGHTS OF A WARD

A ward retains the same legal and civil rights guaranteed to all Vermont residents under the Vermont and United States constitutions and all the laws and regulations of Vermont and the United States.  These rights include:

(1)  The right to participate in decisions made by the guardian and to have personal preferences followed unless:

(A)  the preference is unreasonable and would result in actual harm; or

(B)  the ward does not have a basic understanding of the benefits and consequences of his or her chosen preference.

(2)  The right, without interference from anyone, to retain an attorney and to communicate freely with counsel, the court, ombudsmen, advocates of his or her choosing, and other persons authorized by law to act as an advocate for the ward. 

Sec. 4.  14 V.S.A. § 3069(b)(5) is amended to read:

(5)  to consent to surgery or other medical procedures, subject to the provisions of section 3075 of this title, section 9711(g) of Title 18, and any constitutional right of the ward to refuse treatment;

Sec. 5.  14 V.S.A. § 3073 is amended to read:

§ 3073.  CHANGE OF RESIDENTIAL PLACEMENT

(a)(1)  When a guardian who has been granted the power to choose or change the residence of the ward pursuant to section subdivision 3069(b)(1) of this title wishes to admit the ward to a nursing home or change the residential placement of the ward from a private home to a boarding home, nursing home, residential care home, assisted living residence, group home, or other similar facility, the guardian must first file a motion for permission to do so. 

(2)  For any other change of residence sought by a guardian who has been granted the power to choose or change the residence of the ward pursuant to subdivision 3069(b)(1) of this title, the guardian shall give notice to all parties and to such other persons as the court directs as soon as practicable prior to the change of placement.

(b)(1)  In an emergency, the a guardian who has been granted the power to choose or change the residence of the ward pursuant to subdivision 3069(b)(1) of this title may change the residential placement of the ward from a private home to a boarding home, nursing home, residential care home, group home or other similar facility without petitioning the probate court for prior permission without petitioning the court for prior permission or without giving prior notice to parties.  Immediately after the any emergency change in residential placement for which prior permission under subsection (a) of this section would be required in the absence of an emergency, the guardian shall file a motion for permission to continue the placement.  A hearing on the change in residential placement

(2)  Immediately after any emergency change of placement for which prior permission under subsection (a) of this section is not required, the guardian shall give notice of the change of placement to all parties and to such other persons as the court directs.

(3)  Any party may request a hearing on a change in residential placement.  The hearing shall be set for the earliest possible date and shall be given precedence over other probate matters.

(c)  In a hearing on a change of placement, the court shall consider:

(1)  the need for the change of placement;

(2)  the appropriateness of the new placement;

(3)  the wishes of the ward, if known; and

(4)  whether the guardian has considered alternatives.

Sec. 6.  STUDY; GUARDIANSHIP MONITORS

(a)  The general assembly finds:

(1)  Current law requires guardians to file annual reports with the court about the financial and personal status of the person in need of guardianship. Frequently, annual accountings and personal status reports either are not filed or are filed but contain incomplete or inaccurate information.

(2)  Currently, courts may not have the resources to monitor every guardianship and must rely on the information provided by the guardian in the annual report to identify problems that arise in the guardianship.  Mistakes, conflicts of interest, and abuses of power may go unnoticed unless the guardian or a person interested in the welfare of the ward brings it to the court’s attention.

(3)  Current law requires annual notices to wards of the right to petition to terminate or modify guardianships.  Even when annual notices are sent, wards may not be able to take steps on their own to bring issues to the attention of the court, even when real issues exist.

(4)  A system of comprehensive monitoring may help protect the rights and interests of persons under guardianship.

(b)  A committee is established to study the need for and feasibility of establishing a pilot guardianship monitor program in at least two probate court districts.

(c)  The committee shall consist of the following members:

(1)  Two sitting probate judges appointed by the Vermont association of probate judges.  The association shall designate one of its appointees as the convening authority.

(2)  A member of the court administrator’s office.

(3)  A representative of the elder law committee of the Vermont bar association.

(4)  A representative of the disability law committee of the Vermont bar association.

(5)  A representative of Vermont Legal Aid, Inc.

(6)  Two representatives appointed by the secretary of the agency of human services, including a representative from the department of disabilities, aging, and independent living.

(7)  A representative of the community of Vermont elders.

(8)  A representative of Vermont protection and advocacy.

(9)  A representative of the Vermont coalition of disability rights.

(d)  The committee shall report its findings and recommendations to the house and senate committees on judiciary and the governor on or before January 15, 2007.  The report shall include a recommendation of whether a system of guardianship monitoring is needed and, if so, a complete description, analysis, and recommendations for the following:

(1)  The duties and responsibilities of the monitor.

(2)  The number of monitors needed to staff a pilot program.

(3)  The location and supervision of the monitor.

(4)  The relationship of the monitor to the probate judges and the court administrator’s office.

(5)  The average caseload of a monitor.

(6)  The cost of establishing a pilot guardianship monitor program and the cost of a statewide guardianship monitor program.

(7)  The probate court districts which will be included in a pilot program.

(8)  The method for measuring the outcome of a pilot program.

(9)  The duration of a pilot program.

Sec. 7.  STATUTORY REVISION

The office of legislative council shall revise subchapter 12 of chapter 111 of Title 14 by substituting the term “developmentally disabled” for the term “mentally retarded” wherever it appears.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us