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BILL AS INTRODUCED 2007-2008

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H.381

Introduced by Representative Jewett of Ripton

Referred to Committee on

Date:

Subject:  Fiduciary relations; guardianship

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. chapter 111 is amended to read:

CHAPTER 111.  GUARDIAN AND WARD

* * *

Subchapter 12.  Total and Limited Guardianship for Mentally Disabled
Adults in Need of Guardianship

§ 3060.  POLICY

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

§ 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)  is at least 18 years of age; and

(B)  mentally ill or developmentally disabled; and

(C)  is unable to manage, without the supervision of a guardian, some or all aspects of his or her personal care or financial affairs as a result of a physical or mental condition; and

(C)  has a physical or mental condition that meets the following definition:

(i)  significantly subaverage intellectual functioning which exists concurrently with deficits in adaptive behavior; or

(ii)  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.  

(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)  “Developmentally disabled” 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)(4)  “Near relative” means a parent, stepparent, brother, sister, grandparent, or adult child.

(7)(5)  “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 developmentally disabled 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 developmentally disabled 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)(6)  “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)(7)  “Party” shall have the same meaning as defined by Rule 17(a)(3) and (b) of the Vermont Rules of Probate Procedure.

(13)(8)  “Ward” means a person under in need of guardianship for whom a guardianship order has been issued.

* * *

§ 3063.  PETITION FOR TOTAL OR LIMITED GUARDIANSHIP

Any person interested in the welfare of the ward An interested person 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 developmentally disabled a person in need of guardianship, and whether that the respondent is at least 18 years of age or will become 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.

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§ 3067.  EVALUATION AND REPORT

(a)  When a petition is filed pursuant to section 3063 of this title, the court shall order an evaluation of the respondent.  Except as otherwise provided in this subsection, the cost of the evaluation shall be paid for out of the respondent’s estate.  If the respondent is unable to afford some or all of the cost of the evaluation without expending income or liquid resources necessary for living expenses, the court shall order that the department of health or the department of disabilities, aging, and independent living provide the evaluation through community mental health agencies affiliated with the departments.

(b)  The evaluation shall be performed by a qualified mental health professional someone who has specific training and demonstrated competence to evaluate a person in need of guardianship.  The evaluation shall be completed within 30 days of the filing of the petition with the court.


(c)  The evaluation shall:

(1)  describe the nature and degree of the respondent’s disability, if any, and the level of the respondent’s intellectual, developmental, and social functioning;

(2)  contain recommendations, with supporting data, regarding

(A)  those aspects of his or her personal care and financial affairs which the respondent can manage without supervision or assistance;

(B)  those aspects of his or her personal care and financial affairs which the respondent could manage with the supervision or assistance of support services and benefits;

(C)  those aspects of his personal care and financial affairs which the respondent is unable to manage without the supervision of a guardian;

(D)  those powers and duties as set forth in sections 3069 and 3071 of this title which should be given to the guardian, including the specific support services and benefits which should be obtained by the guardian for the respondent.

* * *

§ 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, any or 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 and consistent with any advanced directive.  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, subject to the provisions of section 3075 of this title and any constitutional right of the ward to refuse treatment.  When the person in need of guardianship has an advance directive or durable power of attorney for health care, the authority of the agent and the instructions contained therein shall remain in effect unless the probate court expressly orders otherwise in a petition for review of the advance directive under 18 V.S.A. § 9718;

(3)  to approve or withhold approval of the ward’s request to sell or in any way encumber his or her 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, subsection 9711(g) of Title 18, 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 court 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.  (1)  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.”

(2)  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.

(d)  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.

(e)  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.

§ 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.

* * *

§ 3072.  GUARDIANS; INDIVIDUALS WHO MAY SERVE

(a)  Competent individuals of at least eighteen 18 years of age may serve as guardians.  No individual developmental home provider 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 nomination of a guardian in an advance directive;

(2)  the preference of the ward;

(2)(3)  the geographic location of the proposed guardian;

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

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

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

* * *

§ 3074.  INSTITUTIONALIZATION OF MENTALLY DISABLED PERSONS COMMITMENT, STERILIZATION, INVOLUNTARY TREATMENT, AND INVOLUNTARY MEDICATION

Nothing in this chapter shall give the guardian of a ward authority to place that person in a state school or hospital except pursuant to section 7601 et seq. of Title 18 or section 8801 et seq. of Title 18 the ward in the Vermont state hospital or any other designated hospital as defined under 18 V.S.A. § 7101(4), consent to an involuntary treatment or medication petition filed against the ward pursuant to chapter 181 of Title 18, consent to a petition for involuntary sterilization filed against the ward pursuant to chapter 204 of Title 18, or consent to a petition for custody, care, or habilitation filed against the ward pursuant to chapter 206 of Title 18.

§ 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

(1)  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 pursuant to this section, and subject to any constitutional right of the ward to refuse treatment.

(2)  Consent to the procedure shall be given or withheld consistent with the manner in which the ward would have given or withheld consent, provided there is sufficient information concerning the ward’s wishes to permit such a determination.  In making this determination, the guardian, and the court in reviewing a guardian’s decision under this section, shall:

(A)  follow written and oral directives of the ward;

(B)  rely on available information concerning the ward’s wishes, values, beliefs, and preferences if written and oral directives of the ward do not provide sufficient information concerning the ward’s wishes; and

(C)  follow the ward’s best interests if subdivisions (1) and (2) of this subsection are inapplicable.  In this event, health care shall not be provided or withheld on the basis of the ward’s economic status or preexisting, long‑term mental or physical disability.

(3)  The guardian and the court shall defer to an agent’s authority to make health care decisions for the ward pursuant to chapter 231 of Title 18.  If there is no agent named in the advance directive, the guardian and the court shall follow the instructions contained in the advance directive.

(c)(1)  The granting or withholding 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 (1) of this subsection shall require prior written approval by the probate court following notice and hearing 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.

(d)  The court shall provide notice to all interested persons before holding a hearing under subsection (c) of this section 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 reasonable 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.

(e)  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.

(f)  The procedures in chapter 181 of Title 18 shall be the exclusive mechanism to obtain approval for administration of nonemergency involuntary psychiatric medication to a ward.

* * *

§ 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.

§ 3081.  EMERGENCY TEMPORARY GUARDIAN PENDING FINAL HEARING ON PETITION

(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.

If a guardianship petition is accompanied by a motion for emergency temporary 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.  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.

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 the 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.  If the court appoints an ex parte emergency temporary guardian, the court shall immediately schedule a temporary hearing in accordance with subsection (b) of this section.  The ex parte order shall state why the order was granted without notice and include findings on the immediate, serious, and irreparable harm.  The ex parte order shall be for a fixed period of time, not to exceed 10 days, and shall expire on its terms unless extended after the temporary hearing.  If the temporary hearing cannot be held before the ex parte order expires, the ex parte order can be extended for good cause shown for an additional 10 days until the temporary hearing is held.

(d)  A temporary guardianship order expires when the court renders a final decision on the guardianship petition.  If the final decision is not rendered within 90 days of the filing of the petition, the court shall schedule a hearing to review the need for continuation of the temporary guardianship order.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us