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H.424

Introduced by   Representatives Kiss of Burlington, Chen of Mendon, Clarkson of Woodstock, Donahue of Northfield, Donovan of Burlington, French of Randolph, Gervais of Enosburg, Haas of Rochester, Head of S. Burlington, Jewett of Ripton, Kupersmith of S. Burlington, Larson of Burlington, Marek of Newfane and Zuckerman of Burlington

Referred to Committee on

Date:

Subject:  Guardianships

Statement of purpose:  This bill proposes to revise and restructure the law governing guardianships.

AN ACT RELATING TO GUARDIANSHIPS

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

Sec. 1.  14 V.S.A. § 3060 is amended to read:

§ 3060.  POLICY

Guardianship for mentally disabled persons shall be utilized only as necessary to promote the well-being of the individual individuals and to protect the individual them from violations of his their human and civil rights.  It shall be designed to encourage the development and maintenance of maximum self‑reliance and independence in the individual and shall be ordered only to the extent required by the individual’s actual mental and adaptive limitations.

Sec. 2.  14 V.S.A. § 3060a is added to read:

§ 3060a.  RIGHTS OF PERSON IN NEED OF GUARDIANSHIP

(a)  A person in need of guardianship 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 equal treatment under the law, regardless of race, religion, creed, sex, age, marital status, sexual orientation, or political affiliation;

(2)  the right to receive explanations of any medical procedure or treatment, including information about the benefits, risks, and side effects of the treatment and any alternative procedures or medications available;

(3)  the right to vote;

(4)  the right to make a will, subject to the requirement of testamentary capacity;

(5)  the right not to undergo sterilization solely for the purpose of birth control unless ordered to do so pursuant to chapter 204 of Title 18;

(6)  the right to privacy, including the right to bodily privacy and the right to unimpeded, private, and uncensored communication with others by mail or telephone;

(7)  the right to visit with persons of his or her choosing;

(8)  the right to procreate; and

(9)  the right to marry.

(b)  The rights guaranteed in subdivisions (a)(6)-(9) of this section may be limited by the court after notice and hearing and upon a finding that failure to limit the right will result in actual harm to the person in need of guardianship or to others.

(c)  In addition to the rights guaranteed in subsection (a) of this section, a person in need of guardianship has additional rights, including:

(1)  the right to be treated with dignity and respect;

(2)  the right to exercise control over all aspects of his or her life not delegated to a guardian by the probate court;

(3)  the right to guardianship services suited to the conditions and needs of the person in need of guardianship;

(4)  the right to petition the court for termination or modification of the guardianship or for a change of guardian;

(5)  the right to have all personal and financial information kept confidential except when necessary to manage the care or affairs of the person in need of guardianship;

(6)  the right to access all guardian reports filed with the court;

(7)  the right to the least restrictive living conditions that meet the needs of the person in need of guardianship;

(8)  the right to request the court to review the guardian’s actions;

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

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

(B)  the person in need of guardianship is unable to understand fully the benefits and consequences of his or her chosen preference; and

(10)  the right to retain an attorney and to communicate freely with counsel, the court, ombudsmen, and other advocates.

Sec. 3.  14 V.S.A. § 3061 is amended to read:

§ 3061.  DEFINITIONS

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

(1)  “Mentally disabled person” “Person in need of guardianship” means a person who has been found to be:

(A)  at least eighteen years of age; and

(B)  mentally ill or mentally retarded; and

(C)  unable to manage, without the supervision of a guardian, some or all aspects of his or her the person’s personal care or financial affairs;, defined as follows:

(i)  “Unable to manage personal affairs” means the inability, as evidenced by recent behavior, to meet one’s needs for medical care, nutrition, clothing, shelter, hygiene, or safety so that physical injury, illness, or disease has occurred or is likely to occur in the near future;

(ii)  “Unable to manage financial affairs” means gross mismanagement, as evidenced by recent behavior, of one’s income and resources which has led or is likely in the near future to lead to financial vulnerability;

(B)  suffering from a physical or mental condition that meets the following definition:

(i)  “Mentally ill” means a substantial disorder of thought, mood, perception, orientation, or memory, any of which grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life;

(ii)  “Mentally retarded” means significantly subaverage intellectual functioning which exists concurrently with deficits in adaptive behavior; and

(C)  at least 18 years of age.

(2)  “Unable to manage his or her personal care” means the inability, as evidenced by recent behavior, to meet one’s needs for medical care, nutrition, clothing, shelter, hygiene or safety so that physical injury, illness or disease has occurred or is likely to occur in the near future;

(3)  “Unable to manage his or her financial affairs” means gross mismanagement, as evidenced by recent behavior, of one’s income and resources which has led or is likely in the near future to lead to financial vulnerability;

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

(5)  “Mentally ill” means a substantial disorder of thought, mood, perception, orientation, or memory, any of which grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life, but shall not include mental retardation;

(6)  “Near relative” means a parent, stepparent, brother, sister, grandparent, or adult child;.

(7)(3)  “Person interested in the welfare of the ward” “Interested person” means a responsible adult who has a direct interest in a mentally disabled the person in need of guardianship and includes but is not limited to, the proposed mentally disabled person in need of guardianship, a near relative, a guardian, public official, social worker, physician, or clergyman; member of the clergy.

(8)  “Total guardianship” means the legal status of a mentally disabled person who is subject to a guardian’s exercise of all the powers listed in section 3069 of this title;

(9)  “Limited guardianship” means the legal status of a mentally disabled person who is subject to a guardian’s exercise of some, but not all of the powers listed in section 3069 of this title;

(10)  “Qualified mental health professional” means:

(A)  for the evaluation of an allegedly mentally retarded person, a licensed psychologist, physician, certified special educator, or certified clinical social worker, or certified clinical mental health counselor, any of whom must also have specialized training and demonstrated competence in the assessment of mentally retarded persons;

(B)  for the evaluation of an allegedly mentally ill person, a person with professional training and demonstrated competence in the treatment of mental illness, who shall be a physician, licensed psychologist, certified clinical social worker or certified clinical mental health counselor;

(11)(4)  “Respondent” means a person who is the subject of a petition filed pursuant to section 3063 of this title.

(5)  “Ward” means a person in need of guardianship for whom a guardianship order has been entered.

Sec. 4.  14 V.S.A. § 3063 is amended to read:

§ 3063.  PETITION FOR TOTAL OR LIMITED GUARDIANSHIP

Any An interested person interested in the welfare of the ward may file a petition with the probate court for the appointment of a total or a limited guardian.  The petition shall state:

(1)  the names and addresses of the petitioner and the respondent, and, if known, the name and address of a near relative of the respondent;

(2)  the interest of the petitioner in the respondent;

(3)  whether that the respondent is alleged to be mentally ill or mentally retarded a person in need of guardianship, and whether that the respondent is at least eighteen 18 years of age or will become eighteen 18 years of age within four months of the filing of a petition;

(4)  specific reasons with supporting facts why guardianship is sought;

(5)  the specific areas where supervision and protection is requested and the powers of the guardian requested for inclusion in the court’s order;

(6)  the nature, description, and approximate value of the respondent’s income and resources, including public benefits and pension;

(7)  if a specific individual is proposed as guardian, the name and address of the proposed guardian and the relationship of the proposed guardian to the respondent; and

(8)  alternatives to guardianship that have been considered and an explanation as to why each alternative is unavailable or unsuitable.

Sec. 5.  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.  Respondents and wards shall have the right to be represented by counsel of their own choosing at any stage in guardianship proceedings.  The court shall appoint counsel for the respondent if the respondent is unrepresented when a petition for guardianship is filed and may appoint counsel for a ward in any proceeding subsequent to the guardianship order.  If counsel has not already been appointed, the court shall appoint counsel if the ward, an interested person, or a guardianship monitor requests appointment in writing.

(2)  Appointment of counsel under this subsection shall be at public expense if the respondent or ward is unable to afford counsel, the expense of counsel would result in hardship to the respondent or ward, or the respondent or ward does not have practical access to funds with which to pay counsel.

(3)  Counsel shall have the right to withdraw after a guardian is appointed or after dismissal.

(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 or ward prior to the any hearing and, to the maximum extent possible, explain to the respondent or ward the meaning of the proceedings and of all relevant documents.  Counsel for the respondent or ward shall act as an advocate for the respondent or ward and shall not substitute counsel’s own judgment for that of the respondent or ward on the subject of what may be in the best interest of the respondent or ward.  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 or ward as to the matter before the court are, if known, 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 or ward are waived, except as allowed by law;

(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. 6.  14 V.S.A. § 3065a is added to read:

§ 3065a.  GUARDIANSHIP MONITOR

(a)  The position of guardianship monitor is established as a classified position within the probate court.

(b)  Within one year after the court appoints a guardian, and biannually thereafter, a guardianship monitor shall conduct a review of the guardianship and report his or her findings and recommendations to the court.  The review shall include, at minimum, the following components:

(1)  The guardianship monitor shall visit the ward and inform the ward of his or her rights, including the right to petition for modification or termination of the guardianship.  The guardianship monitor shall notify the court if the ward wishes to modify or terminate the guardianship.

(2)  The guardianship monitor shall review the most recently filed annual accounting and attempt to resolve any inconsistencies or errors with the guardian, conduct further investigations as appropriate, and recommend to the court whether the accounting should be allowed.

(3)  The guardianship monitor shall review the personal status of the ward and attempt to resolve any issues regarding the ward’s care or personal status, conduct further investigations as appropriate, and make any appropriate recommendations to the court.

(4)  The guardianship monitor shall investigate any failure of the guardian to timely file an annual accounting or personal status report.

(5)  The guardianship monitor shall report on any other matter pertaining to the guardianship which the court directs.

(c)  After the court has issued an order of guardianship, the guardianship monitor shall review any proposed action relating to the guardianship and report his or her findings and recommendations to the court before a decision is made on the proposal.  Before reporting to the court, the guardianship monitor shall meet personally with the ward, inform the ward of his or her rights, and ascertain whether the ward wishes to be represented by counsel in the matter or whether other circumstances make it advisable for the ward to be represented by counsel.

(d)  Notwithstanding the timing requirements for reviews under subsection (b) of this section, the court may order the monitor to conduct a review or perform any of the monitor’s other duties at any time the court deems appropriate.

(e)  A guardianship monitor may provide technical assistance to guardians concerning the duties of guardians and the services available to wards.

Sec. 7.  14 V.S.A. § 3069 is amended to read:

§ 3069.  POWERS OF A TOTAL GUARDIAN

(a)  If the court enters judgment pursuant to section subsection 3068(f) of this title, it may appoint a total guardian if it determines that the respondent is unable to manage, without the supervision of a guardian, all aspects of his or her personal care and financial affairs.

(b)  A total guardian shall supervise the ward through the exercise of the following powers The court shall grant powers to the guardian in the least restrictive manner appropriate to the circumstances of the ward.  Guardianship powers shall be ordered only to the extent required by the ward’s actual mental and adaptive limitations.  The court shall specify which of the following powers the guardian shall have and may further restrict each power so as to permit the ward to care for the ward and the ward’s property commensurate with the ward’s ability to do so:

(1)  the power to exercise general supervision over the ward.  This includes care, habilitation, education, and employment of the ward and choosing or changing the residence, subject to the requirements of sections 2691, 3073, and 3074 of this title care, habilitation, education and employment of the ward;

(2)  to approve or withhold approval of any contract, except for necessaries, which the ward wishes to make the power to seek, obtain, and give or withhold consent to the initiation or continuation of medical or dental treatment, or to exercise any constitutional right of the ward to refuse treatment, subject to the provisions of section 3075 of this title;

(3)  to approve or withhold approval of the ward’s request to sell or in any way encumber his personal or real property the power to exercise general financial supervision over the income and resources of the ward.  This includes the power to seek or apply for, receive, invest, and expend all wages, compensation, insurance benefits, public benefits, and pensions for the benefit of the ward, to liquidate personal property for the benefit of the ward, to settle accounts, demands, claims, and actions by or against the ward, and to take any other action reasonably necessary to secure, preserve, protect, and defend the financial interests of the ward;

(4)  to exercise general supervision over the income and resources of the ward.  This includes the power to receive, invest and expend all wages, compensation, insurance benefits, public benefits and pensions for the benefit of the ward and to liquidate resources for the benefit of the ward the power to approve or withhold approval of any contract, except for necessities, which the ward wishes to make;

(5)  to consent to surgery or other medical procedures, subject to the provisions of section 3075 of this title and any constitutional right of the ward to refuse treatment the power to approve or withhold approval of the sale or encumbrance of real property of the ward, subject to chapter 6 of this title;

(6)  to receive, sue for, and recover debts and demands due to the ward, to maintain and defend actions or suits for the recovery or protection of the property or person of the ward, settle accounts, demands, claims and actions by or against the ward, including actions for injuries to the property or person of the ward, and to compromise, release, and discharge the same on such terms as he deems just and beneficial to the ward the power to commence or defend against judicial actions in the name of the ward, subject to the right of the ward to retain an attorney and seek legal advice independently.

(c)  The total guardian shall exercise his supervisory powers over the ward in a manner which is least restrictive of the ward’s personal freedom consistent with the need for supervision.  When a guardian has been granted some but not all guardianship powers, the guardianship shall be identified as a “limited guardianship” and the guardian identified as a “limited guardian.”

(d)  A person for whom limited guardianship has been granted retains all the powers identified in subsection (b) of this section except those which have been specifically granted to the limited guardian.

(e)  The guardian shall exercise supervisory powers over the ward in a manner which is least restrictive of the ward’s personal freedom consistent with the need for supervision.

(f)  The guardian shall encourage the ward to participate in decisions affecting the ward, to act on his or her own behalf when practicable, and to develop or regain the capacity to manage his or her own personal affairs to the maximum extent possible.  The wishes, values, beliefs, and preferences of the ward shall be respected to the greatest possible extent in the exercise of all guardianship powers.

Sec. 8.  14 V.S.A. § 3070 is amended to read:

§ 3070.   POWERS OF A LIMITED GUARDIAN

(a)  If the court enters judgment pursuant to section 3068(f) of this title, it may appoint a limited guardian if it determines that the respondent is unable to manage some, but not all, aspects of his personal care and financial affairs.  The court shall specify those powers enumerated in section 3069 of this title which the limited guardian shall have and may further restrict each power so as to permit the ward to care for himself and his property commensurate with his ability to do so.

(b)  A person for whom a limited guardian has been appointed retains all legal and civil rights except those which have been specifically granted to the limited guardian by the court.

(c)  The limited guardian shall exercise his supervisory powers over the ward in a manner which is least restrictive of the ward’s personal freedom consistent with the order of the court.

Sec. 9.  14 V.S.A. § 3072 is amended to read:

§ 3072.  GUARDIANS; INDIVIDUALS WHO MAY SERVE

(a)  Competent individuals of at least eighteen 18 years of age may serve as guardians.  No developmental home provider or individual who operates or is an employee of a boarding home, residential care home, nursing home, group home, or other similar facility in which the ward resides may serve as guardian.  No person may serve as guardian for the respondent who has served as guardian ad litem in the same proceeding.  Notwithstanding the provisions of section 2603 of this title, the court shall have the discretion to appoint a guardian who is not a resident of this state, provided that the individual appointed is otherwise qualified to serve.

(b)  In appointing an individual to serve as guardian, court shall take into consideration:

(1)  the preference of the ward;

(2)  the geographic location of the proposed guardian;

(3)  the relationship of the proposed guardian to the ward;

(4)  the ability and suitability of the proposed guardian to carry out the powers and duties of the guardianship; and

(5)  potential financial conflicts of interest between the ward and the proposed guardian.

Sec. 10.  14 V.S.A. § 3073 is amended to read:

§ 3073.  CHANGE OF RESIDENTIAL PLACEMENT

(a)  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.  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 interested parties as soon as practicable prior to the change of placement.

(b)(1)  In an emergency, the guardian 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 interested persons under subsection (a) of this section.  Immediately after the any emergency change in residential placement requiring prior permission under subsection (a), the guardian shall file a motion for permission to continue the placement.  Immediately after any emergency change of placement not requiring prior permission under subsection (a) of this section, the guardian shall give notice of the change of placement to all interested parties.

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

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

(i)  the need for the change of placement;

(ii)  the appropriateness of the new placement;

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

(iv)  whether the guardian has considered alternatives.

Sec. 11.  14 V.S.A. § 3075 is amended to read:

§ 3075.  CONSENT FOR MEDICAL OR DENTAL TREATMENT

(a)  When a ward whose right to consent to surgery or other medical procedure has not been restricted pursuant to section 3069(b)(5) of this title is admitted to a hospital for nonemergency surgery or other nonemergency medical procedures requiring consent, the treating physician shall determine if the person’s physical 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 or medical procedure is performed.  In such cases, the ward’s consent shall be determinative and no other consent is necessary A ward retains the right to make the ward’s medical and dental decisions unless that right has been restricted pursuant to subdivision 3069(b)(2) of this title.

(b)  When a ward whose right to consent to surgery or other medical procedures has been restricted pursuant to section 3069(b)(5) of this title is admitted to a hospital for nonemergency surgery or other nonemergency medical procedures requiring consent, the guardian may give such consent upon the advice of the treating physician and after obtaining permission of the probate court, after hearing, upon such notice as the court may direct When consent is required for a medical or dental procedure for a ward whose right to consent to such procedures has been restricted pursuant to subdivision 3069(b)(2) of this title, the guardian may give or withhold consent subject to this section.

(c)(1)  The guardian shall exercise consent consistent with the manner in which the ward would have exercised consent, provided the guardian has sufficient reliable information concerning the ward’s wishes.  The guardian shall rely on an advance directive for health care for information concerning the ward’s wishes.

(2)  The guardian may rely on written and oral directives of the ward other than an advance directive for health care if:

(A)  there is no advance directive for health care;

(B)  the ward is shown by clear and convincing evidence to have revoked the ward’s advance directive for health care; or

(C)  the ward’s advance directive for health care does not provide sufficient reliable information concerning the ward’s wishes.

(3)  If written and oral directives of the ward other than an advance directive for health care do not provide sufficient reliable information concerning the ward’s wishes, the guardian may rely on available information concerning the ward’s wishes, values, beliefs, and preferences.

(4)  If sufficient reliable information is unavailable concerning the ward’s wishes, values, beliefs, and preferences, the guardian shall exercise consent based on the ward’s best interests.

(d)  The guardian shall not exercise consent to involuntary sterilization except pursuant to chapter 204 of Title 18 or to involuntary treatment except pursuant to chapter 181 of Title 18.

(e)(1)  The exercise of consent to the following medical procedures for the ward shall require prior written approval by the probate court following notice and hearing:

(A)  abortion;

(B)  amputation;

(C)  electro-convulsive treatment;

(D)  experimental medical procedures;

(E)  withholding of life-sustaining treatment and issuing “do‑not‑resuscitate” orders, unless death is imminent; or

(F)  restraint by medication.

(2)  The exercise of consent for the ward to a medical procedure not listed in subdivision (e)(1) of this section shall require prior written approval by the probate court if:

(A)  the ward objects to the guardian’s decision, on constitutional grounds or otherwise; or

(B)  the court in its discretion orders prior written approval.

(f)  A hearing under subsection (e) of this section shall be held with notice to all interested persons, unless the court finds that immediate, substantial, and irreparable injury would result to the health, life, or memorialized wishes of the ward if consent were not exercised before there was a realistic opportunity for a hearing.  Unless otherwise ordered by the court, the guardian shall file the written recommendation of the attending physician and any other written recommendations concerning the medical procedure at or before the hearing.

(g)  If a ward’s death is imminent, a guardian of the ward may consent to withholding life sustaining treatment or to issuing a “do-not-resuscitate” order only after the guardian files with the probate court the written statements of two examining physicians certifying that death is imminent, and that withholding life sustaining treatment or issuing a “do-not-resuscitate” order is appropriate.  The guardian shall give written notice to the court immediately after consent is given.

Sec. 12.  14 V.S.A. § 3080a is added to read:

§ 3080a.  REVIEW OF GUARDIAN’S ACTIONS

The probate court shall have supervisory authority over guardians.  Any interested party may seek review of a guardian’s proposed or past actions by filing a motion with the court.

Sec. 13.  14 V.S.A. § 3081 is amended to read:

§ 3081.  EMERGENCY TEMPORARY GUARDIAN PENDING HEARING

(a)  When a petition for guardianship has been filed, but adherence to the procedures set out in this subchapter would cause serious and irreparable harm to the respondent’s physical health or financial interests, the probate court may appoint a an emergency temporary guardian prior to the final hearing and decision on the petition, subject to the requirements of this section.

(b)  Upon motion of the petitioner, the court shall schedule a hearing on the appointment of a temporary guardian for the earliest possible date, appoint a guardian ad litem for the respondent, and notice shall be given as provided by the rules of probate procedure.  Upon a finding that serious and irreparable harm to the respondent’s physical health or financial interests would result during the pendency of petition, the court shall appoint a temporary guardian and shall specify those powers which the temporary guardian shall have in order to prevent serious and irreparable harm to the respondent.  The duration of the temporary guardianship shall not extend beyond the time the court renders a decision on the petition for guardianship.

Limited notice hearing.  If a guardianship petition is accompanied by a motion for emergency guardianship, the court shall schedule a hearing on the appointment of an emergency temporary guardian for the earliest possible date.  The court shall appoint counsel for the respondent and cause notice to be given as provided by the Vermont Rules of Probate Procedure (VRPP).  Upon a showing by sworn affidavit that notice cannot be given within the time periods, in the manner, or to the persons required by the VRPP, the court may allow a hearing to go forward upon such notice as the court may direct.  The court may appoint an emergency temporary guardian if it finds that serious and irreparable harm to the respondent’s physical health or financial interests will likely result during the pendency of the petition.

(c)  A temporary guardian may be appointed without notice to the respondent and guardian ad litem only if it clearly appears from specific facts shown by affidavit or sworn testimony that immediate, serious and irreparable harm will result to the respondent before a hearing on the appointment of a temporary guardian can be held.  On two days’ notice to the party who obtained the appointment of a temporary guardian without notice, or on such shorter notice to that party as the court may prescribe, the respondent or the guardian ad litem may appear and move dissolution or modification of the court’s order, and, in that event, the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

Order without notice and hearing.  An emergency temporary guardian may be appointed without notice to the respondent or respondent’s counsel only if it clearly appears from specific facts shown by affidavit or sworn testimony that immediate, serious, and irreparable harm will result to the respondent before a hearing on the appointment of an emergency temporary guardian can be held.  A request for ex parte emergency temporary guardianship under this section shall be made by written motion, accompanied by a petition for guardianship, unless waived by the court for good cause shown.

(d)  Emergency temporary guardianships under this section may only be ordered to the extent necessary to prevent irreparable harm.  The scope of authority ordered by the court shall specify which actions are empowered and shall state that the authority is limited to the powers specified.  Hearings under this section shall be on the record, and orders made under this section shall include written findings of fact and conclusions of law which justify the order. The order shall advise the respondent of his or her right to petition for modification or termination by the court on two days’ notice.  The duration of the emergency temporary guardianship shall not extend beyond the time the court renders a decision on the petition for guardianship.  The court may require a bond of the proposed guardian if financial interests require it.  The court shall, if possible, instruct the emergency temporary guardian which documentation or records should be kept.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us