It Is Hereby Enacted by the General Assembly of the State of Vermont

AS PASSED BY HOUSE H.617

2008 Page 2

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

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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 wellbeing 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 selfreliance 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

(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

(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.

(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.