View the complete text of this act
ACT SUMMARY 2007-2008

SUMMARY OF THE 2008 ACTS AND RESOLVES View the complete text of this act


ACT NO. 186

(H.617)

Guardianships

This act substantially revises and updates guardianship law to reflect current standards and procedures. The changes made by the act include the following:

(1) The term “person in need of guardianship” replaces the term “mentally disabled person,” and the term “person under guardianship” replaces the term “ward.” A “person in need of guardianship” is defined as a person at least 18 years of age who is unable to manage, without the supervision of a guardian, some or all aspects of his or her personal or financial affairs as a result of: (A) significantly subaverage intellectual functioning which exists concurrently with deficits in adaptive behavior; or (B) a physical or mental condition that results in significantly impaired cognitive functioning which grossly impairs judgment, behavior, or the capacity to recognize reality.

(2) The term “interested person” is defined as a responsible adult who has a direct interest in a person in need of guardianship, and includes the person in need of guardianship, a near relative, a close friend, a guardian, public official, social worker, physician, an agent named in an advance directive or in a power of attorney, a person nominated as guardian in an advance directive, or member of the clergy. An interested person may file a petition with the probate court seeking appointment of a guardian or asking the court to review a guardian’s past or proposed action.

(3) The distinction between a total and limited guardianship is eliminated, replaced by one form of guardianship that may be tailored to each person’s individual needs.

(4) The probate court’s supervisory authority over guardians is clarified.

(5) A petition for guardianship must contain a statement of alternatives to guardianship that have been considered and an explanation as to why each alternative is unavailable or unsuitable.

(6) The probate court is required to conduct a background check of all proposed guardians.

(7) The act sets out who has access to reports evaluating whether a person is in need of a guardian.

(8) The act clarifies that a person under guardianship does not need the guardian’s approval in order to retain an attorney and seek legal advice independently.

(9) The act makes clear that when a guardianship is necessary only the least restrictive form of guardianship may be ordered. The court must limit guardianship powers to those required by the actual mental and adaptive limitations of the person under guardianship. The court is also required to identify with specificity which powers the guardian has, and may restrict each power so as to preserve the person under guardianship’s authority to make decisions commensurate with his or her ability to do so.

(10) The act affirms the primacy of an advance directive. When a person under guardianship has an advance directive, it is the advance directive that controls and must be followed unless the probate court expressly orders otherwise in response to a petition for review of the advance directive.

(11) The guardian is required always to serve the interests of the person under guardianship, and to bring any potential conflicts of interest to the attention of the court.

(12) The act prohibits a person from being appointed or serving as a guardian if the person operates a boarding home, residential care home, an assisted living residence, a nursing home, group home, developmental home, correctional facility, psychiatric unit at a designated hospital, or other similar facility in which the person under or in need of guardianship resides or is receiving care.

(13) The act adds the following to the factors the court must consider when appointing a person to serve as a guardian:

(A) The nomination of a guardian in an advance directive or will.

(B) Any current or past expressed preferences of the person under guardianship.

(C) The willingness and ability of the proposed guardian to communicate with the person under guardianship and to respect his or her choices and preferences.

(D) Any conflicts that may arise if the proposed guardian is an employee of a boarding home, residential care home, an assisted living residence, a nursing home, group home, developmental home, correctional facility, psychiatric unit at a designated hospital, or other similar facility in which the person under guardianship resides or is receiving care.

(E) The results of any background checks.

(14) A guardian is prohibited from consenting on behalf of a person under guardianship to involuntary treatment or medication, involuntary sterilization, or placing the person in involuntary custody on the grounds that he or she is a danger to him- or herself or others.

(15) The act describes in substantially more detail than current law the procedures a guardian must follow when making decisions regarding medical or dental treatment for a person under guardianship. A person under guardianship retains the right to make his or her own medical decisions unless that right has been restricted by the court. If the person has an advanced directive, the decision of the agent or the instructions in the advance directive must be followed. If the person does not have an advance directive and the court has restricted the person under guardianship’s ability to make medical decisions, then the guardian generally may give or withhold consent to medical procedures on behalf of the person under guardianship. The act adopts the substituted judgment standard for this decision: the guardian must give or withhold consent consistent with the manner in which the person under guardianship would have given or withheld consent, provided there is sufficient information to determine what the person’s wishes would have been.

The guardian must obtain an order from the probate court before giving or withholding consent to a medical procedure under the following circumstances:

(A) If the person under guardianship objects to the guardian’s decision.

(B) If the court has ordered that prior approval be obtained for a specific procedure or treatment.

(C) Before withholding or withdrawing life sustaining treatment (except antibiotics) unless the guardian is following an advance directive or if obtaining prior approval would be impracticable due to the need for a decision before court approval can be obtained.

(D) Before consenting to a do-not-resuscitate order unless the guardian is following an advance directive or a clinician certifies that the person under guardianship is likely to experience cardiopulmonary arrest before court approval can be obtained.

(16) The act makes clear that the family court, under the procedures in chapter 181 of Title 18, is the exclusive venue for obtaining approval for administration of nonemergency involuntary psychiatric medication to a person under guardianship.

(17) The act adds the following two bases that may be relied upon by a person under guardianship or an interested person when filing a motion for termination or modification of a guardianship: the failure to file a timely annual report and the person under guardianship’s expressed preference for another guardian.

(18) A guardianship task force is established to study methods, other than a staff-intensive monitoring model, to improve guardian accountability, assure the protection of the rights and well-being of individuals under guardianship, and train and support guardians in the execution of their guardianship duties.

Effective Date: July 1, 2008.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us