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BILL AS PASSED HOUSE AND SENATE 2007-2008

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H.617

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.  Guardians and Ward Guardianship

* * *

Subchapter 12.  Total and Limited Guardianship for Mentally Disabled Adults Persons 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.  The state of Vermont recognizes the fundamental right of an adult with capacity to determine the extent of health care the individual will receive.

§ 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:

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

(ii)  a physical or mental condition that results in significantly impaired cognitive functioning which grossly impairs judgment, behavior, or the capacity to recognize reality.  

(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, spouse, domestic partner, 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 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 close friend, a guardian, public official, social worker, physician, agent named in an advance directive or in a power of attorney, person nominated as guardian in an advance directive, 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 person under guardianship 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”Person under guardianship” means a person under in need of guardianship for whom a guardianship order has been issued.

(9)  “Do not resuscitate order” shall have the same meaning as in subdivision 9701(7) of Title 18.

(10)  “Capacity to make medical decisions” means an individual’s ability to make and communicate a decision regarding proposed health care based upon having a basic understanding of the diagnosed condition and the benefits, risks, and alternatives to the proposed health care.

(11)  “Informed consent” means the consent given voluntarily by an individual with capacity after being fully informed of the nature, benefits, risks, and consequences of the proposed health care, alternative health care, and no health care.

(12)  “Assent” means a communication by a person under guardianship that a proposed health care decision by his or her guardian is consistent with his or her preferences, when that person has been found to lack the capacity to provide informed consent.

§ 3062.  JURISDICTION; REVIEW OF GUARDIAN’S ACTIONS

(a)  The probate court shall have exclusive original jurisdiction over all proceedings brought under the authority of this chapter or pursuant to section 9718 of Title 18.

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

§ 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; the name and address of the person nominated as guardian in an advance directive; and the name and address of the current guardian, and agent named in an advance directive or in a power of attorney;

(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.

§ 3064.  NOTICE OF PETITION AND HEARING

(a)  Upon the filing of the petition, the probate court shall schedule a hearing and notice shall be given as provided by the rules of probate procedure.

(b)  The hearing shall be held not less than 15 nor more than 30 days after the filing with the court of the evaluation required by section 3067 of this title. The hearing may be continued for good cause shown for not more than 15 additional days.

§ 3065.  COUNSEL

(a)(1)  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 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 qualified person to serve or to continue to serve, consistent with section 3072 of this title; and

(7)  if a guardian is appointed, the initial order or any subsequent order is least restrictive of the ward’s personal freedom of the person under guardianship consistent with the need for supervision.

(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.

§ 3066.  GUARDIAN AD LITEM

On motion of the respondent’s or ward’s person under guardianship’s counsel or on the court’s own motion the court may appoint a guardian ad litem if it finds the respondent or ward person under guardianship is unable to communicate with or advise counsel.

§ 3067.  EVALUATION AND REPORT; BACKGROUND CHECK; RELEASE OF EVALUATION

(a)  When a petition is filed pursuant to section 3063 of this title, or when a motion for modification or termination is filed pursuant to subdivision 3077(a)(4) 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 or as ordered by the court.  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 mental health or the department of disabilities, aging, and independent living provide the evaluation through community mental health agencies affiliated with the departments qualified evaluators.

(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 unless the time period is extended by the court for cause.

(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 or her 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.

(d)  The proposed guardian shall provide the court with the information and consents necessary for a complete background check.  Not more than 10 days after receipt of an evaluation supporting guardianship of the respondent, the court shall order from the respective registries background checks of the proposed guardian from any available state registries, including but not limited to the adult abuse registry, child abuse registry, Vermont crime information center, and the Vermont state sex offender registry, and the court shall consider information received from the registries in determining whether the proposed guardian is suitable.  However, if appropriate under the circumstances, the court may waive the background reports or may proceed with appointment of a guardian prior to receiving the background reports, provided that the court may remove a guardian if warranted by background reports which the court receives after the guardian’s appointment.  If the proposed guardian has lived in Vermont for fewer than five years or is a resident of another state, the court may order background checks from the respective state registries of the states in which the proposed guardian lives or has lived in the past five years or from any other source.  The court shall provide copies of background check reports to the petitioner, the respondent, and the respondent’s attorney.

(e)  Regardless of whether the report of the evaluator supports or does not support guardianship, the court shall provide a copy of the evaluation to the respondent, the respondent’s attorney, the petitioner, the guardian upon appointment, and any other individual, including the proposed guardian, determined by the court to have a strong interest in the welfare of the respondent.  The evaluation shall remain confidential, and recipients of the evaluation are prohibited from sharing the evaluation.  Notwithstanding the foregoing, the court may restrict access to the evaluation or portions of the evaluation upon objection by one of the parties or on the court’s own motion. 

§ 3068.  HEARING

(a)  The respondent, the petitioner and all other persons to whom notice has been given pursuant to section 3064 of this title may attend the hearing and testify.  The respondent and the petitioner may subpoena, present and cross‑examine witnesses, including those who prepared the evaluation.  The court may exclude any person not necessary for the conduct of the hearing on motion of the respondent.

(b)  The hearing shall be conducted in a manner consistent with orderly procedure and in a setting not likely to have a harmful effect on the mental or physical health of the respondent.

(c)  The evaluation shall be received into evidence, if the persons who prepared the evaluation are available for the hearing or subject to service of subpoena.  However, the court shall not be bound by the evidence contained in the 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.

(d)  The petitioner may be represented by counsel in any proceedings brought under this chapter.

(e)  If upon completion of the hearing and consideration of the record the court finds that the respondent is not mentally disabled a person in need of guardianship, it shall dismiss the petition and seal the records of the proceeding.

(f)  If upon completion of the hearing and consideration of the record the court finds that the petitioner has proved by clear and convincing evidence that the respondent is mentally disabled a person in need of guardianship or will be mentally disabled a person in need of guardianship on attaining eighteen 18 years of age, it shall enter judgment specifying the powers of the guardian pursuant to sections 3069 and 3070 of this title and the duties of the guardian pursuant to section 3071 of this title.

(g)  Any party to the proceeding before the court may appeal the court’s decision in the manner provided in section 3080 of this title.

§ 3068a.  RIGHTS OF A WARD PERSON UNDER GUARDIANSHIP

A ward person under 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 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 person under guardianship 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 person under guardianship.

(3)  The right to retain an attorney and seek legal advice independently without consent of the guardian, provided that any legal fees not authorized by the guardian are subject to review and approval by the court.

§ 3069.  POWERS OF A TOTAL GUARDIAN

(a)  If the court enters judgment pursuant to 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)  When the person under guardianship has an advance directive, 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.

(c)  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 respondent and consistent with any advance directive.  Guardianship powers shall be ordered only to the extent required by the respondent’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 preserve the respondent’s authority to make decisions commensurate with respondent’s ability to do so:

(1)  the power to exercise general supervision over the ward person under guardianship.  This includes care, habilitation, education, and employment of the person under guardianship 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 person under guardianship to refuse treatment, provided that the court in its discretion may place limitations on the guardian’s powers under this subdivision if appropriate under the circumstances, including requiring prior court approval for specific surgeries, procedures, or treatments; 

(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 person under guardianship.  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 person under guardianship, to liquidate personal property for the benefit of the person under guardianship, to settle accounts, demands, claims, and actions by or against the person under guardianship, and to take any other action reasonably necessary to secure, preserve, protect, and defend the financial interests of the person under guardianship;

(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 necessaries, which the person under guardianship 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 person under guardianship subject to subchapter 6 of this chapter;

(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 or she deems just and beneficial to the ward the power to obtain legal advice and to commence or defend against court actions in the name of the person under guardianship. 

(c)(d)  The total guardian shall exercise his or her 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 (c) of this section except those which have been specifically granted to the limited guardian.

(e)  The guardian shall exercise supervisory powers in a manner which is least restrictive of the personal freedom of the person under guardianship consistent with the need for supervision.

(f)  The guardian shall encourage the person under guardianship to participate in decisions, 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 person under guardianship 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.

§ 3071.  DUTIES OF GUARDIAN

(a)  The guardian shall maintain close contact with the ward person under guardianship and encourage maximum self-reliance on the part of the ward under his protection person under guardianship.

(b)  In addition to the powers vested in the guardian by the court pursuant to sections section 3069 and 3070 of this title, the court may order the guardian to assure that the ward person under guardianship receives those benefits and services to which he or she is lawfully entitled and which he needs to maximize his or her opportunity for social and financial independence.  Those benefits and services include, but are not limited to:

(1)  education services for a ward person under guardianship who is of school age;

(2)  residential services for a ward person under guardianship who lacks adequate housing;

(3)  nutrition services;

(4)  medical and dental services, including home health care;

(5)  therapeutic and habilitative services, adult education, vocational rehabilitation or other appropriate services.

(c)  The guardian shall always serve the interests of the person under guardianship and shall bring any potential conflicts of interest to the attention of the court.

§ 3072.  GUARDIANS; INDIVIDUALS WHO MAY SERVE

(a)(1)  Competent individuals of at least eighteen 18 years of age may serve as guardians.  No 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.

(2)  No individual may be appointed or serve as guardian for a person under or in need of guardianship if the individual operates a boarding home, residential care home, assisted living residence, 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.

(3)  No person may serve as guardian for the respondent who has served as guardian ad litem in the same proceeding. 

(4)  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, the court shall take into consideration:

(1)  the preference of the ward the nomination of a guardian in an advance directive or in a will;

(2)  any current or past expressed preferences of the respondent;

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

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

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

(5)(6)  the willingness and ability of the proposed guardian to communicate with the respondent and to respect the respondent’s choices and preferences;

(7)  potential financial conflicts of interest between the ward respondent and the proposed guardian, and any conflicts that may arise if the proposed guardian is an employee of a boarding home, residential care home, assisted living residence, nursing home, group home, developmental home, correctional facility, psychiatric unit at a designated hospital, or other similar facility in which the respondent resides or is receiving care; and

(8)  results of any background checks.

§ 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 person under guardianship pursuant to subdivision 3069(b)(1) of this title wishes to admit the ward person under guardianship to a nursing home or change the residential placement of the ward person under guardianship from a private home to a boarding 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 person under guardianship 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, a guardian who has been granted the power to choose or change the residence of the ward person under guardianship pursuant to subdivision 3069(b)(1) of this title may change the residential placement of the ward person under guardianship without petitioning the court for prior permission or without giving prior notice to parties.  Immediately after 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.

(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 person under guardianship, if known; and

(4)  whether the guardian has considered alternatives.

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

Nothing in this chapter shall give the guardian of a ward person authority to:

(1)  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.

(2)  consent to an involuntary treatment or medication petition pursuant to chapter 181 of Title 18.

(3)  consent to sterilization or to a petition for involuntary sterilization pursuant to chapter 204 of Title 18.

(4)  consent to a petition for custody, care, or habilitation filed 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 person under guardianship retains the right to make medical and dental decisions unless that right has been restricted pursuant to subdivision 3069(c)(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. A person whose right to make medical decisions has been restricted pursuant to subdivision 3069(c)(2) of this section who has the capacity to make a specific medical decision retains the right to make that decision.

(c)  Unless an advance directive or the authority of an agent is expressly revoked or modified by the court pursuant to section 9718 of Title 18, the advance directive of a person under guardianship shall remain in effect, and the agent shall have sole authority to make health care decisions for the person under guardianship pursuant to chapter 231 of Title 18. 

(d)  If there is no agent named in the advance directive, or if the office of agent is vacant, the guardian shall follow the instructions contained in the advance directive.

(e)  For a person whose right to consent to medical or dental procedures has been restricted pursuant to subdivision 3069(c)(2) of this title, the guardian may give or withhold consent pursuant to this section and subject to any constitutional right of the person under guardianship to refuse treatment.

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

(1)  rely on written and oral expressions of the person under guardianship;

(2)  rely on available information concerning the wishes, values, beliefs, and preferences of the person under guardianship if the person’s written and oral expressions do not provide sufficient information; and

(3)  follow the best interests of the person under guardianship if subdivisions (1) and (2) of this subsection are inapplicable.  No decision to withhold or abate medical treatment will be based solely on the age, economic level, or level of disability of the person under guardianship.

(g)(1)  The guardian shall obtain prior written approval by the probate court following notice and hearing:

(A)  if the person under guardianship objects to the guardian’s decision, on constitutional grounds or otherwise;

(B)  if the court orders prior approval for a specific surgery, procedure, or treatment, either in its initial order pursuant to subdivision 3069(c)(2) of this title or anytime after appointment of a guardian;

(C)  except as provided in subdivision (2) of this subsection, and unless the guardian is acting pursuant to an advance directive, before withholding or withdrawing life-sustaining treatment other than antibiotics; or

(D)  unless the guardian is acting pursuant to an advance directive, before consenting to a do-not-resuscitate order unless a clinician as defined in subdivision 9701(5) of Title 18 certifies that the person under guardianship is likely to experience cardiopulmonary arrest before court approval can be obtained.  In such circumstances, the guardian shall immediately notify the court of the need for a decision, shall obtain the clinician’s certification prior to consenting to the do-not-resuscitate order, and shall file the clinician’s certification with the court after consent has been given.

(2)  The requirements of subdivision (1)(C) of this subsection shall not apply if obtaining a court order would be impracticable due to the need for a decision before court approval can be obtained.  In such circumstances, the guardian shall immediately notify the court by telephone of the need for a decision, and shall notify the court of any decision made.

(h)  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 person under guardianship.

§ 3076.  ANNUAL REPORTS; FINAL ACCOUNTING; FEES

(a)  The guardian of a ward shall file an annual report with the appointing court on within 30 days of the anniversary date of his the appointment.

(b)  The annual report shall contain:

(1)  a financial accounting as required by section 2921 of this title if the guardian has been granted power over the ward’s income and resources pursuant to section subdivision 3069(b)(4) of this title;

(2)  a report on the progress and condition of the ward person under guardianship, including but not limited to, his or her health, medical and dental care, residence, education, employment, and habilitation;

(3)  a report on the manner in which the guardian carried out his or her powers and fulfilled his or her duties; and

(4)  the guardian’s opinion regarding the continued need for guardianship.

(c)  If the guardian has been granted power over the ward’s income and resources pursuant to section subdivision 3069(b)(4) of this title, at the termination of the guardianship, the guardian shall render a final accounting as required by section 2921 of this title.

(d)(1)  Except as provided in subdivision (2) of this subsection, the guardian shall not be paid any fees to which he or she may be entitled, or reimbursed for any of his or her expenses from the estate of the ward person under guardianship until the annual reports or final accounting required by this section have been filed with the court.

(2)  The guardian may at any time apply by motion to the probate court for payment of fees or reimbursement of expenses incurred as a result of the guardianship.  The court may grant the motion and approve payment if it finds the expenses were reasonable and supported by documentary evidence.    


§ 3077.  TERMINATION AND MODIFICATION OF GUARDIANSHIP

(a)  Any A person under guardianship or any person interested in the welfare of the ward person under guardianship may file a motion for termination or modification of the guardianship.  Grounds for the termination or modification of the guardianship shall include:

(1)  the death of the guardian;

(2)  the failure of the guardian to file an annual report, or the failure to file such report in a timely manner;

(3)  the failure of the guardian to act in accord with an order of the court;

(4)  a change in the ability of the ward person under guardianship to manage his or her personal care or financial affairs;

(5)  a change in the capacity or suitability of the guardian for carrying out his or her powers and duties, including but not limited to any current or past expressed preferences of the person under guardianship to have an alternative person appointed as guardian.

(b)  When the grounds for termination or modification are those listed in subsections (a)(1), (2), (3), or (5) of this section, the court may appoint a successor guardian After notice and hearing, the court may terminate or modify the guardianship, appoint a successor guardian, or restrict the powers of a guardian, consistent with the court’s findings and conclusions of law.

(c)  Notice and hearing on the motion shall proceed in the manner set forth in sections 3064 and 3068 of this title.

(d)  Marriage of the person under guardianship shall not extinguish a guardian’s authority.

(e)  The following guardianship powers shall remain for up to two years after the death of a person under guardianship or until the appointment of an executor or administrator of the person’s estate:

(1)  the power to arrange and pay for a funeral;

(2)  the power to request medical, financial, or other records of the person in guardianship;

(3)  the power to request an autopsy and to obtain the results thereof;

(4)  the power to make and file a financial accounting; and

(5)  any other powers which are incidental to the closing of and accounting for the guardianship and which are fully reported to the probate court.

§ 3078.  ANNUAL NOTICE TO WARD PERSON IN NEED OF GUARDIANSHIP

The appointing court shall send an annual notice to each ward person under guardianship and the ward’s counsel of record of each person under guardianship, advising the ward person under guardianship of his or her right to file a motion for termination or modification of the guardianship pursuant to section 3077 of this title.  The notice shall include a copy of any accountings, reports or other information filed by the guardian during the year, except when there is counsel of record and the court deems it is in the best interest of the ward person under guardianship to send the accountings, reports and other information to counsel only.

§ 3079.  VALIDITY OF PRIOR GUARDIANSHIP

All guardianships approved pursuant to section 2671 et seq. and section 2683 et seq. of this title prior to July 1, 1979 remain valid.  On the first anniversary date of such guardianship after July 1, 1979, the court which approved such guardianship shall send notice to each ward person under guardianship, his or her counsel of record, and a near relative of the ward person under guardianship, if known, advising them of the ward’s right of the person under guardianship to petition for termination or modification of the guardianship pursuant to section 3077 of this title.  Upon the filing of such a petition, the court shall promptly arrange for a comprehensive evaluation of the ward person under guardianship pursuant to section 3067 of this title.

§ 3080.  APPEALS

Orders of the court issued pursuant to the provisions of this subchapter may be appealed in such manner as provided in sections 2551 et seq. of Title 12 and Rule 72, Vermont Rules of Civil Procedure, provided, however, that any order issued pursuant to this subchapter shall not be stayed during the pendency of an appeal except by order of a court of competent jurisdiction.

§ 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 (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.  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.

Sec. 2.  PROPOSAL OF RULES

Within six months after the effective date of this act, the advisory committee on the Vermont Rules of Probate Procedure shall report to the legislative committee on judicial rules any changes to rules or forms that the committee determines are necessary or advisable as a result of this act.

Sec. 3.  GUARDIANSHIP TASK FORCE

(a)  The general assembly finds that:

(1)  Individuals under guardianship are among the state’s most vulnerable citizens.

(2)  Guardianship provides legal and human rights protections but may also be used to deprive vulnerable people of resources and fundamental rights.

(3)  Guardianship is increasing in Vermont.

(4)  Private guardians usually have no training or support in carrying out their guardianship responsibilities.

(5)  Probate judges and court registers who once were able to provide a measure of support for and monitoring of guardians are less able to do so as the volume of new guardianships and other court work increases their workload.

(6)  A comprehensive guardianship monitoring program would likely require significant additional staffing and resources and, as such, is not currently a cost-effective or viable approach.

(b)  The guardianship education, improvement, and accountability task force is established.  Consistent with the findings in subsection (a) of this section and in recognition of the vulnerability of individuals under guardianship, the task force shall study ways, other than a staff-intensive monitoring model, for improving guardian accountability, assuring the protection of the rights and well-being of individuals under guardianship, and training and supporting guardians in the execution of their guardianship duties.

(c)  The task force shall consist of the following members:

(1)  Two sitting probate judges appointed by the Vermont association of probate judges.

(2)  Two members appointed by Vermont Legal Aid.

(3)  One member appointed by Vermont protection and advocacy.

(4)  Two members appointed by the secretary of human services, one of whom shall be a representative from the office of the public guardian.

(5)  One member appointed by the community of Vermont elders.

(6)   A member appointed by green mountain self-advocates.

(7)  Two members, appointed by the Vermont coalition for disability rights, who shall be family members of adults under guardianship.

(8)  One member appointed by Vermont psychiatric survivors.

(9)  One member appointed by the Vermont traumatic brain injury association.

(d)  The committee shall report its findings and recommendations to the house and senate committees on judiciary and the office of the court administrator on or before December 15, 2008.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us