The Vermont Statutes Online
The Statutes below include the actions of the 2024 session of the General Assembly.
NOTE: The Vermont Statutes Online is an unofficial copy of the Vermont Statutes Annotated that is provided as a convenience.
Title 14: Decedents Estates and Fiduciary Relations
Chapter 111: Guardianship
- Subchapter 001: JURISDICTION OF PROBATE DIVISION OF THE SUPERIOR COURT
§ 2601. Repealed. 1985, No. 144 (Adj. Sess.), § 163.
§ 2602. Court appointing, to have jurisdiction; accounts
The Probate Division of the Superior Court by which a guardian is appointed shall have jurisdiction of the estate of the ward and shall alone be authorized to license the sale of the estate and settle the guardian’s account. In accordance with the Rules of Probate Procedure, a guardian shall annually account to the court for the proceeds and expenditures of the ward’s estate, together with an account of the guardian’s fees. (Amended 1985, No. 144 (Adj. Sess.), § 117; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2603. Nonresident guardian
Except as otherwise provided in this chapter, the Probate Division of the Superior Court shall not appoint a guardian who is not domiciled in this State at the time of appointment, except where the guardian is named in a will or is a relative of the ward and in that case the same shall be discretionary with the court. The Probate Division of the Superior Court may remove a guardian who ceases to be domiciled in this State. (Amended 1967, No. 249 (Adj. Sess.), § 1, eff. Feb. 20, 1968; 1985, No. 144 (Adj. Sess.), § 118; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
- Subchapter 002: PERSONS FOR WHOM GUARDIANS APPOINTED
§ 2621. Policy; purposes
This article shall be construed in accordance with the following purposes and policies:
(1) It is presumed that the interests of minor children are best promoted in the child’s own home. However, when parents are temporarily unable to care for their children, guardianship provides a process through which parents can arrange for family members or other parties to care for the children.
(2) Family members can make better decisions about minor children when they understand the consequences of those decisions and are informed about the law and the available supports.
(3) Decisions about raising a child made by a person other than the child’s parent should be based on the informed consent of the parties unless there has been a finding of parental unsuitability.
(4) When the informed consent of the parents cannot be obtained, parents have a fundamental liberty interest in raising their children unless a proposed guardian can show parental unsuitability by clear and convincing evidence.
(5) Research demonstrates that timely reunification between parents and their children is more likely when children have safe and substantial contact with their parents.
(6) It is in the interests of all parties, including the children, that parents and proposed guardians have a shared understanding about the length of time that they expect the guardianship to last, the circumstances under which the parents will resume care for their children, and the nature of the supports and services that are available to assist them. (Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.)
§ 2622. Definitions
As used in this article:
(1) “Child” means an individual who is under 18 years of age and who is the subject of a petition for guardianship filed pursuant to section 2623 of this title.
(2) “Child in need of guardianship” means:
(A) A child who the parties consent is in need of adult care because of any one of the following:
(i) The child’s custodial parent has a serious or terminal illness.
(ii) A custodial parent’s physical or mental health prevents the parent from providing proper care and supervision for the child.
(iii) The child’s home is no longer habitable as the result of a natural disaster.
(iv) A custodial parent of the child is incarcerated.
(v) A custodial parent of the child is on active military duty.
(vi) The parties have articulated and agreed to another reason that guardianship is in the best interests of the child.
(B) A child who is:
(i) abandoned or abused by the child’s parent;
(ii) without proper parental care, subsistence, education, medical, or other care necessary for the child’s well-being; or
(iii) without or beyond the control of the child’s parent.
(3) “Custodial parent” means a parent who, at the time of the commencement of the guardianship proceeding, has the right and responsibility to provide the routine daily care and control of the child. The rights of the custodial parent may be held solely or shared and may be subject to the court-ordered right of the other parent to have contact with the child. If physical parental rights and responsibilities are shared pursuant to court order, both parents shall be considered “custodial parents” for purposes of this subdivision.
(4) “Nonconsensual guardianship” means a guardianship with respect to which:
(A) a parent is opposed to establishing the guardianship; or
(B) a parent seeks to terminate a guardianship that the parent previously agreed to establish.
(5) “Noncustodial parent” means a parent who is not a custodial parent at the time of the commencement of the guardianship proceeding.
(6) “Parent” means a child’s biological or adoptive parent, including custodial parents; noncustodial parents; parents with legal or physical responsibilities, or both; and parents whose rights have never been adjudicated.
(7) “Parent-child contact” means the right of a parent to have visitation with the child by court order. (Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.)
§ 2623. Petition for guardianship of minor; service
(a) A parent or a person interested in the welfare of a minor may file a petition with the Probate Division of the Superior Court for the appointment of a guardian for a child. The petition shall state:
(1) the names and addresses of the parents, the child, and the proposed guardian;
(2) the proposed guardian’s relationship to the child;
(3) the names of all members of the proposed guardian’s household and each person’s relationship to the proposed guardian and the child;
(4) that the child is alleged to be a child in need of guardianship;
(5) specific reasons with supporting facts why guardianship is sought;
(6) whether the parties agree that the child is in need of guardianship and that the proposed guardian should be appointed as guardian;
(7) the child’s current school and grade level;
(8) if the proposed guardian intends to change the child’s current school, the name and location of the proposed new school and the estimated date when the child would enroll;
(9) the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period; and
(10) any prior or current court proceedings, child support matters, or parent-child contact orders involving the child.
(b)(1) A petition for guardianship of a child under this section shall be served on all parties and interested persons as provided by Rule 4 of the Vermont Rules of Probate Procedure.
(2)(A) The Probate Division may waive the notice requirements of subdivision (1) of this subsection (b) with respect to a parent if the court finds that:
(i) the identity of the parent is unknown; or
(ii) the location of the parent is unknown and cannot be determined with reasonable effort.
(B) After a guardianship for a child is created, the Probate Division shall reopen the proceeding at the request of a parent of the child who did not receive notice of the proceeding as required by this subsection. (Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.)
§ 2624. Jurisdiction; transfer to Family Division
(a) Except as provided in subsection (b) of this section, the Probate Division shall have exclusive jurisdiction over proceedings under this article involving guardianship of minors.
(b)(1)(A) A custodial minor guardianship proceeding brought in the Probate Division under this article shall be transferred to the Family Division if there is an open proceeding in the Family Division involving custody of the same child who is the subject of the guardianship proceeding in the Probate Division.
(B) A minor guardianship proceeding brought in the Probate Division under this article may be transferred to the Family Division on motion of a party or on the court’s own motion if any of the parties to the probate proceeding was a party to a closed divorce proceeding in the Family Division involving custody of the same child who is the subject of the guardianship proceeding in the Probate Division.
(2)(A) When a minor guardianship proceeding is transferred from the Probate Division to the Family Division pursuant to subdivision (1) of this subsection (b), the Probate judge and a Superior judge assigned to the Family Division shall confer regarding jurisdiction over the proceeding. Except as provided in subdivision (B) of this subdivision (2), all communications concerning jurisdiction between the Probate judge and the Superior judge under this subsection shall be on the record. Whenever possible, a party shall be provided notice of the communication and an opportunity to be present when it occurs. A party who is unable to be present for the communication shall be provided access to the record.
(B) It shall not be necessary to inform the parties about or make a record of a communication between the Probate judge and the Superior judge under this subsection (b) if the communication involves scheduling, calendars, court records, or other similar administrative matters.
(C) After the Superior judge and Probate judge confer under subdivision (2)(A) of this subsection (b), the Superior judge may:
(i) consolidate the minor guardianship case with the pending matter in the Family Division and determine whether a guardianship should be established under this article; or
(ii) transfer the guardianship petition back to the Probate Division for further proceedings after the pending matter in the Family Division has been adjudicated.
(D) If a guardianship is established by the Family Division pursuant to subdivision (2)(C)(i) of this subsection, the guardianship case shall be transferred back to the Probate Division for ongoing monitoring pursuant to section 2631 of this title. (Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.)
§ 2625. Hearing; counsel; guardian ad litem
(a) The Probate Division shall schedule a hearing upon the filing of the petition and shall provide notice of the hearing to all parties and interested persons who were provided notice under subdivision 2623(c)(1) of this title.
(b) The child shall attend the hearing if he or she is 14 years of age or older unless the child’s presence is excused by the court for good cause. The child may attend the hearing if he or she is less than 14 years of age.
(c) The court shall appoint counsel for the child if the child will be called as a witness. In all other cases, the court may appoint counsel for the child.
(d)(1) The child may be called as a witness only if the court finds after hearing that:
(A) the child’s testimony is necessary to assist the court in determining the issue before it;
(B) the probative value of the child’s testimony outweighs the potential detriment to the child; and
(C) the evidence sought is not reasonably available by any other means.
(2) The examination of a child called as a witness may be conducted by the court in chambers in the presence of such other persons as the court may specify and shall be recorded.
(e) The court may appoint a guardian ad litem for the child on motion of a party or on the court’s own motion.
(f)(1) The court may grant an emergency guardianship petition filed ex parte by the proposed guardian if the court finds that:
(A) both parents are deceased or medically incapacitated; and
(B) the best interests of the child require that a guardian be appointed without delay and before a hearing is held.
(2) If the court grants an emergency guardianship petition pursuant to subdivision (1) of this subsection (f), it shall schedule a hearing on the petition as soon as practicable and in no event more than three business days after the petition is filed. (Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014; amended 2017, No. 11, § 33.)
§ 2626. Consensual guardianship
(a) If the petition requests a consensual guardianship, the petition shall include a consent signed by the custodial parent or parents verifying that the parent or parents understand the nature of the guardianship and knowingly and voluntarily consent to the guardianship. The consent required by this subsection shall be on a form approved by the Court Administrator.
(b) On or before the date of the hearing, the parties shall file an agreement between the proposed guardian and the parents. The agreement shall address:
(1) the responsibilities of the guardian;
(2) the responsibilities of the parents;
(3) the expected duration of the guardianship, if known; and
(4) parent-child contact and parental involvement in decision making.
(c) Vermont Rule of Probate Procedure 43 (relaxed rules of evidence in probate proceedings) shall apply to hearings under this section.
(d) The court shall grant the petition if it finds after the hearing by clear and convincing evidence that:
(1) the child is a child in need of guardianship as defined in subdivision 2622(2)(A) of this title;
(2) the child’s parents had notice of the proceeding and knowingly and voluntarily consented to the guardianship;
(3) the agreement is voluntary;
(4) the proposed guardian is suitable; and
(5) the guardianship is in the best interests of the child.
(e) If the court grants the petition, it shall approve the agreement at the hearing and issue an order establishing a guardianship under section 2628 of this title. The order shall be consistent with the terms of the parties’ agreement unless the court finds that the agreement was not reached voluntarily or is not in the best interests of the child. (Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.)
§ 2627. Nonconsensual guardianship
(a) If the petition requests a nonconsensual guardianship, the burden shall be on the proposed guardian to establish by clear and convincing evidence that the child is a child in need of guardianship as defined in subdivision 2622(2)(B) of this title.
(b) The Vermont Rules of Evidence shall apply to a hearing under this section.
(c) The court shall grant the petition if it finds after the hearing by clear and convincing evidence that the proposed guardian is suitable and that the child is a child in need of guardianship as defined in subdivision 2622(2)(B) of this title.
(d) If the court grants the petition, it shall issue an order establishing a guardianship under section 2628 of this title. (Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.)
§ 2628. Guardianship order
(a) If the court grants a petition for guardianship of a child under subsection 2626(d) or 2627(d) of this title, the court shall enter an order establishing a guardianship and naming the proposed guardian as the child’s guardian.
(b) A guardianship order issued under this section shall include provisions addressing the following matters:
(1) the powers and duties of the guardian consistent with section 2629 of this title;
(2) the expected duration of the guardianship, if known;
(3) a family plan on a form approved by the Court Administrator that:
(A) in a consensual case is consistent with the parties’ agreement; or
(B) in a nonconsensual case includes, at a minimum, provisions that address parent-child contact consistent with section 2630 of this title; and
(4) the process for reviewing the order consistent with section 2631 of this title. (Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.)
§ 2629. Powers and duties of guardian
(a) The court shall specify the powers and duties of the guardian in the guardianship order.
(b) The duties of a custodial guardian shall include the duty to:
(1) take custody of the child and establish his or her place of residence, provided that a guardian shall not change the residence of the child to a location outside the State of Vermont without prior authorization by the court following notice to the parties and an opportunity for hearing;
(2) make decisions related to the child’s education;
(3) make decisions related to the child’s physical and mental health, including consent to medical treatment and medication;
(4) make decisions concerning the child’s contact with others, provided that the guardian shall comply with all provisions of the guardianship order regarding parent-child contact and contact with siblings;
(5) receive funds paid for the support of the child, including child support and government benefits; and
(6) file an annual status report to the Probate Division, with a copy to each parent at his or her last known address, including the following information:
(A) the current address of the child and each parent;
(B) the child’s health care and health needs, including any medical and mental health services the child received;
(C) the child’s educational needs and progress, including the name of the child’s school, day care, or other early education program, the child’s grade level, and the child’s educational achievements;
(D) contact between the child and his or her parents, including the frequency and duration of the contact and whether it was supervised;
(E) how the parents have been involved in decision making for the child;
(F) how the guardian has carried out his or her responsibilities and duties, including efforts made to include the child’s parents in the child’s life;
(G) the child’s strengths, challenges, and any other areas of concern; and
(H) recommendations with supporting reasons as to whether the guardianship order should be continued, modified, or terminated. (Added 2013, No. 170 (Adj. Sess.), § 1.)
§ 2630. Parent-child contact
(a) The court shall order parent-child contact unless it finds that denial of parent-child contact is necessary to protect the physical safety or emotional well-being of the child. Except for good cause shown, the order shall be consistent with any existing parent-child contact order. The order should permit the child to have contact of reasonable duration and frequency with the child’s siblings, if appropriate.
(b) The court may determine the reasonable frequency and duration of parent-child contact and may set conditions for parent-child contact that are in the child’s best interests.
(c) The court may modify the parent-child contact order upon motion of a party or upon the court’s own motion, or if the parties stipulate to the modification. (Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.)
§ 2631. Reports; review hearing
(a) The guardian shall file an annual status report to the Probate Division pursuant to subdivisions 2629(b)(4) and 2629(c)(5) of this title, and shall provide copies of the report to each parent at his or her last known address. The court may order that a status report be filed more frequently than once per year.
(b) The Probate Division may set a hearing to review a report required by subsection (a) of this section or to determine progress with the family plan required by subdivision 2628(b)(3) of this title. The court shall provide notice of the hearing to all parties and interested persons. (Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.)
§ 2632. Termination
(a) A parent may file a motion to terminate a guardianship at any time. The motion shall be filed with the Probate Division that issued the guardianship order and served on all parties and interested persons.
(b)(1) If the motion to terminate is made with respect to a consensual guardianship established under section 2626 of this title, the court shall grant the motion and terminate the guardianship unless the guardian files a motion to continue the guardianship within 30 days after the motion to terminate is served.
(2) If the guardian files a motion to continue the guardianship, the matter shall be set for hearing and treated as a nonconsensual guardianship proceeding under section 2627 of this title. The parent shall not be required to show a change in circumstances, and the court shall not grant the motion to continue the guardianship unless the guardian establishes by clear and convincing evidence that the minor is a child in need of guardianship under subdivision 2622(2)(B) of this title.
(3) If the court grants the motion to continue, it shall issue an order establishing a guardianship under section 2628 of this title.
(c)(1) If the motion to terminate the guardianship is made with respect to a nonconsensual guardianship established under section 2627 or subdivision 2632(b)(3) of this title, the court shall dismiss the motion unless the parent establishes that a change in circumstances has occurred since the previous guardianship order was issued.
(2) If the court finds that a change in circumstances has occurred since the previous guardianship order was issued, the court shall grant the motion to terminate the guardianship unless the guardian establishes by clear and convincing evidence that the minor is a child in need of guardianship under subdivision 2622(2)(B) of this title. (Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.)
§ 2633. Appeals
Notwithstanding 12 V.S.A. § 2551 or 2553, the Vermont Supreme Court shall have appellate jurisdiction over orders of the Probate Division issued under this article. (Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.)
§ 2634. Department for Children and Families policy
The Department for Children and Families shall adopt a policy defining its role with respect to families who establish a guardianship under this article. The policy shall be consistent with the following principles:
(1) The Family Services Division shall maintain a policy ensuring that when a child must be removed from his or her home to ensure the child’s safety, the Division will pursue a CHINS procedure promptly if there are sufficient grounds under 33 V.S.A. § 5102.
(2) When the Family Services Division is conducting an investigation or assessment related to child safety and the child may be a child in need of care and supervision as defined in 33 V.S.A. § 5102(3), the Division shall not make any recommendation regarding whether a family should pursue a minor guardianship. The staff may provide referrals to community-based resources for information regarding minor guardianships.
(3) In response to a request from the Probate judge, the Family Services Division social worker shall attend a minor guardianship hearing and provide information relevant to the proceeding.
(4) If a minor guardianship is established during the time that the Family Services Division has an open case involving the minor, the social worker shall inform the guardian and the parents about services and supports available to them in the community and shall close the case within a reasonable time unless a specific safety risk is identified. (Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014.)
§§ 2635-2640. [Reserved for future use.]
§ 2641. Parents as joint guardians
If competent, the father and mother of a legitimate minor child shall be joint guardians of such child. If competent, the surviving parent shall be the sole guardian.
§ 2642. Repealed. 1959, No. 262, § 37, eff. June 11, 1959.
§ 2643. Release by court and parent on behalf of minor
(a) The Superior judge of the Superior Court within and for the county where the minor resides, on behalf of a minor, must approve of and consent to a release to be executed by a parent in the settlement of any claim that does not exceed the sum of $10,000.00. A release so furnished shall be binding on the minor and both parents, their heirs, executors, administrators, or assigns, respectively.
(b) Any claim settled for a sum in excess of $10,000.00 shall require the approval of a court-appointed guardian. (Added 1959, No. 262, § 38, eff. June 11, 1959; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1979, No. 77, § 1, eff. May 10, 1979; 2019, No. 167 (Adj. Sess.), § 17, eff. October 7, 2020.)
§ 2644. Child of unmarried woman
An unmarried woman who bears a child shall be guardian of such child until another is appointed. (Amended 1987, No. 174 (Adj. Sess.), § 3.)
§ 2645. Repealed. 2013, No. 170 (Adj. Sess.), § 6, eff. September 1, 2014.
§ 2646. Repealed. 1985, No. 144 (Adj. Sess.), § 163.
§ 2647. For minor interested in an estate
When notice is required to be given to a minor interested in an estate, as heir, devisee, or legatee, or representative of either, a guardian of the minor shall be appointed before the notice is given. Before any part of the estate is assigned to a minor, a guardian shall be appointed, although the minor has a parent living who is authorized to act as guardian. (Amended 1985, No. 144 (Adj. Sess.), § 120.)
§ 2648. Parent may be appointed guardian
When a parent is authorized to act as guardian and the appointment of a guardian is required, such parent may be appointed if approved by the court.
§ 2649. Guardian appointed for nonresident minor
On the petition of a minor, not a resident of this State, or a person interested in the welfare of the minor, the court may appoint a guardian of the minor when it appears that the minor owns or has an interest in real estate situated in the State. (Amended 1985, No. 144 (Adj. Sess.), § 121.)
§ 2650. Minor’s choice of guardian
Minors residing in the State and having reached the age of 14 years may choose their guardians, subject to the approval of the Probate Division of the Superior Court, and may appear before the court or before a Superior judge and make their choice. The certificate of such magistrate shall be sufficient evidence to the court of the minor’s choice. (Amended 1965, No. 194, § 10, operative Feb. 1, 1967; 1973, No. 249 (Adj. Sess.), § 64, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), §§ 236, 238a, eff. Feb. 1, 2011.)
§ 2651. Repealed. 2013, No. 170 (Adj. Sess.), § 6, eff. September 1, 2014.
§ 2652. Choice of another guardian by minor
A person appointed guardian of a minor shall continue to be such until another is appointed. After the minor arrives at the age of 14 years, he or she may, from time to time, choose and have appointed another guardian.
§ 2653. Repealed. 2013, No. 170 (Adj. Sess.), § 6, eff. September 1, 2014.
§ 2654. Control over property in another state
A guardian appointed by a Probate Division of the Superior Court in this State shall have the same power and authority to take possession of, manage, sell and convey personal property and real estate of his or her ward, situate in another state or foreign country, as he or she has over like property situated in this State. Such guardian shall account to the Probate Division of the Superior Court of this State for all property of his or her ward in another state or foreign country, which comes into his or her hands and control. (Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2655. Parent may have custody of person
Either parent may have the custody of the person and care of the education of the minor, if the court, at the time of appointing a guardian of the minor, deems the parent to be competent and suitable for that purpose. If the court deems a parent incompetent or unsuitable, it shall direct accordingly in the letters of guardianship. In its discretion, at any time during the continuance of the guardianship, the court may change the custody of a minor, upon notice and after hearing, if the court finds the person having custody incompetent or unsuitable. (Amended 1985, No. 144 (Adj. Sess.), § 122.)
§ 2656. Guardian appointed by will
By a last will, either parent may appoint guardians for minor children, or for children, regardless of age, who are judicially determined to be in need of guardianship under the provisions of this chapter, whether living at the time of making the will or born afterwards, and such guardians shall be governed by the laws applicable to guardians appointed by the Probate Division of the Superior Court. If, by his or her will appointing a guardian, the testator orders or requests that a bond shall not be required, it may be dispensed with, unless the Probate Division of the Superior Court judges that from a change in the circumstances of the guardian or from other cause the estate of the ward will be insecure. (Amended 1975, No. 138 (Adj. Sess.), § 1, eff. Feb. 27, 1976; 1977, No. 92; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2657. Guardian ad litem
Nothing in this chapter shall take away the power of a court to appoint a guardian to defend the interests of a minor impleaded in such court, or interested in an action or matter therein pending, or its power to appoint or allow a person, as next friend of a minor, to commence, prosecute, or defend an action in his behalf.
§ 2658. Powers of guardian
A guardian for a minor appointed by Probate Division of the Superior Court, as provided in this chapter, in the name and right of his or her ward, may receive, sue for, and recover debts and demands due to the ward. He or she may maintain and defend actions or suits when necessary for the recovery or protection of the property or person of his or her ward, settle accounts, demands, claims, and actions by or against his or her ward, including actions for injuries to the person or property of such ward and compromise, release, and discharge the same on such terms as he or she deems just and beneficial to his or her ward. (Added 1979, No. 76, § 2; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2659. Financial guardianship; minors
(a) The Probate Division may appoint a financial guardian for a minor pursuant to this section if the minor is the owner of real or personal property. A financial guardian appointed pursuant to this section shall have the care and management of the estate of the minor but shall not have custody of the minor.
(b)(1) A parent or a person interested in the welfare of a minor may file a petition with the Probate Division of the Superior Court for the appointment of a guardian for a child. The petition shall state:
(A) the names and addresses of the parents, the child, and the proposed guardian;
(B) the proposed guardian’s relationship to the child; and
(C) any real and personal property owned by the minor.
(2) A petition for financial guardianship of a minor under this section shall be served on all parties and interested persons as provided by Rule 4 of the Vermont Rules of Probate Procedure.
(c) The Probate Division shall schedule a hearing upon the filing of the petition and shall provide notice of the hearing to all parties.
(d) If the court grants the petition for financial guardianship of the minor, the court shall enter an order establishing a financial guardianship, naming the proposed guardian as the child’s financial guardian, and specifying the powers and duties of the guardian.
(e) The duties of a financial guardian shall include the duty to:
(1) pursue, receive, and manage any property right of the minor’s, including inheritances, insurance benefits, litigation proceeds, or any other real or personal property, provided the benefits or property shall not be expended without prior court approval;
(2) deposit any cash resources of the minor in accounts established for the guardianship, provided the cash resources of the minor shall not be comingled with the guardian’s assets;
(3) responsibly invest and reinvest the cash resources of the minor;
(4) obtain court approval for expenditures of funds to meet extraordinary needs of the minor which cannot be met with other family resources;
(5) establish with court approval:
(A) special needs trusts;
(B) trusts for the benefit of the minor payable over the minor’s lifetime or for such shorter periods as deemed reasonable; or
(C) structured settlements providing for payment of litigation proceeds over the minor’s lifetime or for such shorter periods as deemed reasonable; and
(6) file an annual financial accounting with the Probate Division of the Superior Court stating the funds received, managed, and spent on behalf of the minor. (Added 2013, No. 170 (Adj. Sess.), § 2, eff. Sept. 1, 2014; amended 2017, No. 195 (Adj. Sess.), § 18.)
§ 2660. Statement of legislative intent
(a) The creation of a permanent guardianship for minors provides the opportunity for a child, whose circumstances make returning to the care of the parents not reasonably possible, to be placed in a stable and nurturing home for the duration of the child’s minority. The creation of a permanent guardianship offers the additional benefit of permitting continued contact between a child and the child’s parents.
(b) The Family Division of the Superior Court is not required to address and rule out each of the other potential disposition options once it has concluded that termination of parental rights is in a child’s best interests. (Added 2015, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2016.)
§ 2661. Definitions
For the purposes of this article:
(1) “Best interests of the child” means a determination, based on consideration of all relevant factors and available options, of circumstances that will best provide the child with at a minimum all the following:
(A) Adequate food.
(B) Clothing.
(C) Health care.
(D) Any other material needs.
(E) A safe and nurturing environment that meets the child’s present and future developmental needs and promotes appropriate interactions and relationships with family members, foster family, and other people who will play a constructive role in the child’s life.
(F) Support to help the child adjust to home, school, and community.
(2) “Parent” means the parent or parents of a minor.
(3) “Permanent guardian” means one or two adults appointed by the court to act as a parent for a child during the child’s minority.
(4) “Permanent guardianship” means a legal guardianship of a minor that is intended to continue with the same guardian, based on the guardian’s express commitment, for the duration of the child’s minority.
(5) “Relative” means a grandparent, great-grandparent, sibling, first cousin, aunt, uncle, great-aunt, great-uncle, niece, or nephew of a person, whether related to the person by the whole or the half blood, affinity, or adoption. The term does not include a person’s stepparent. (Added 1999, No. 162 (Adj. Sess.), § 2.)
§ 2662. Permanent guardian; rights and obligations
(a) A permanent guardian shall have parental rights and responsibilities for the child that include:
(1) Providing the child with:
(A) A healthy and safe living environment and daily care.
(B) Education.
(C) Necessary and appropriate health care, including medical, dental, and mental health care.
(2) Making decisions regarding:
(A) Travel.
(B) Management of the child’s income and assets.
(C) The child’s right to marry or enlist in the armed forces.
(D) Representation of the child in legal actions.
(E) Any other matter that involves the child’s welfare and upbringing.
(b) The permanent guardian shall:
(1) Before appointment, expressly commit to remain the permanent guardian and assume the parental rights and responsibilities for the child for the duration of the child’s minority.
(2) Be responsible to the court and the child for the health, education and welfare of the minor.
(3) Comply with all terms of any court order to provide the child’s parent with visitation, contact or information. (Added 1999, No. 162 (Adj. Sess.), § 2.)
§ 2663. Parent of the minor; rights and obligations; support
(a) While a permanent guardianship is in effect, the parent shall have the following rights:
(1) Visitation, contact and information to the extent delineated in the order issued by the family division of the superior court. The family division of the superior court shall issue an order regarding visitation, contact and information based on the best interests of the child. The order may prohibit visitation, contact and information. The order may incorporate an agreement reached among the parties.
(2) Inheritance by and from the child.
(3) Right to consent to adoption of the child.
(b) After the court has issued a final order establishing permanent guardianship, the parent shall have no right to seek termination of the guardianship order. The parent may seek only enforcement or modification of an order of visitation, contact or information.
(c) The parent shall have the primary responsibility to support the child.
(1) In the event the income and assets of the parent qualify the child for governmental benefits, the benefits may be conferred upon the child with payment to be made to the permanent guardian. The provision of necessities by the permanent guardian shall not disqualify the child for any benefit or entitlement.
(2) If the child has been in the custody of the Commissioner for Children and Families immediately prior to the creation of the guardianship, the Commissioner shall have no further duty of support or care for the child after the establishment of the permanent guardianship unless the family is eligible for kinship guardianship assistance provided for in 33 V.S.A. § 4903 or the Commissioner contractually agrees in writing to that support. (Added 1999, No. 162 (Adj. Sess.), § 2; amended 2009, No. 97 (Adj. Sess.), § 5; 2009, No. 154 (Adj. Sess.), § 238.)
§ 2664. Creation of permanent guardianship
(a) The Family Division of the Superior Court may establish a permanent guardianship at a permanency planning hearing or at any other hearing in which a permanent legal disposition of the child can be made, including a child protection proceeding pursuant to 33 V.S.A. § 5318 or a delinquency proceeding pursuant to 33 V.S.A. § 5232. The court shall also issue an order permitting or denying visitation, contact, or information with the parent at the same time the order of permanent guardianship is issued. Before issuing an order for permanent guardianship, the court shall find by clear and convincing evidence all of the following:
(1) Neither parent is able to assume or resume parental duties within a reasonable time.
(2) The child has resided with the permanent guardian for at least six months.
(3) A permanent guardianship is in the best interests of the child.
(4) The proposed permanent guardian:
(A)(i) is emotionally, mentally, and physically suitable to become the permanent guardian; and
(ii) is financially suitable, with kinship guardianship assistance provided for in 33 V.S.A. § 4903 if applicable, to become the permanent guardian;
(B) has expressly committed to remain the permanent guardian for the duration of the child’s minority; and
(C) has expressly demonstrated a clear understanding of the financial implications of becoming a permanent guardian, including an understanding of any resulting loss of State or federal benefits or other assistance.
(b) The parent voluntarily may consent to the permanent guardianship, and shall demonstrate an understanding of the implications and obligations of the consent.
(c) After the Family Division of the Superior Court issues a final order establishing permanent guardianship, the case shall be transferred to the appropriate Probate Division of the Superior Court in the district in which the permanent guardian resides. Jurisdiction shall continue to lie in the Probate Division. Appeal of any decision by the Probate Division of the Superior Court shall be de novo to the Family Division.
(d) The Family Division of the Superior Court may name a successor permanent guardian in the initial permanent guardianship order. Prior to issuing an order naming a successor permanent guardian, the court shall find by clear and convincing evidence that the named successor permanent guardian meets the criteria in subdivision (a)(4) of this section. In the event that the permanent guardian dies or the guardianship is terminated by the Probate Division of the Superior Court, if a successor guardian is named in the initial order, custody of the child transfers to the successor guardian pursuant to subsection 2666(b) of this title. (Added 1999, No. 162 (Adj. Sess.), § 2; amended 2009, No. 97 (Adj. Sess.), § 1; 2009, No. 154 (Adj. Sess.), §§ 123, 123a; 2015, No. 170 (Adj. Sess.), § 2, eff. Sept. 1, 2016.)
§ 2665. Reports
The permanent guardian shall file a written report on the status of the child to the Probate Division of the Superior Court annually pursuant to subdivision 2629(b)(6) of this title and at any other time the court may order. (Added 1999, No. 162 (Adj. Sess.), § 2; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2015, No. 170 (Adj. Sess.), § 3, eff. Sept. 1, 2016.)
§ 2666. Modification; termination
(a) A modification or termination of the permanent guardianship may be requested by the permanent guardian, the child if the child is age 14 or older, or the Commissioner for Children and Families. A modification or termination may also be ordered by the Probate Division of the Superior Court on its own initiative.
(b) Where the permanent guardianship is terminated by the Probate Division of the Superior Court order or the death of the permanent guardian, the custody and guardianship of the child shall not revert to the parent, but to the Commissioner for Children and Families as if the child had been abandoned. If a successor permanent guardian has been named in the initial permanent guardianship order, custody shall transfer to the successor guardian, without reverting first to the Commissioner. The Probate Division of the Superior Court shall notify the Department when custody transfers to the Commissioner or the successor guardian. At any time during the first six months of the successor guardianship, the Probate Division may, upon its own motion and independent of its regular review process, hold a hearing to determine, by a preponderance of the evidence, whether the successor permanent guardian continues to meet the requirements under subdivision 2664(a)(4) of this title.
(1) Upon the death of the permanent guardian or when the permanent guardianship is otherwise terminated by order of the Probate Division, the Probate Division shall issue an order placing the child in the custody of the Commissioner and shall immediately notify the Department for Children and Families, the State’s Attorney, and the Family Division.
(2) The order transferring the child’s legal custody to the Commissioner shall have the same legal effect as a similar order issued by the Family Division under the authority of 33 V.S.A. chapters 51-53.
(3) After the Probate Division issues the order transferring legal custody of the child, the State shall commence proceedings under the authority of 33 V.S.A. chapters 51-53 as if the child were abandoned.
(c) An order for modification or termination of the permanent guardianship shall be based on a finding by a preponderance of the evidence that there has been a substantial change in material circumstances, or that one or more findings required by subsection 2664(a) of this title no longer can be supported by the evidence, and that the proposed modification or termination is in the best interests of the child.
(d) The burden of proof shall be on the party seeking the modification or termination.
(e) In the event that it is necessary to appoint a successor permanent guardian, the parent may be considered with no greater priority than a third party. (Added 1999, No. 162 (Adj. Sess.), § 2; amended 2009, No. 97 (Adj. Sess.), § 6; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2015, No. 153 (Adj. Sess.), § 23; 2015, No. 170 (Adj. Sess.), § 4, eff. Sept. 1, 2016.)
§ 2667. Order for visitation, contact, or information; immediate harm to the minor
(a) The Probate Division of the Superior Court shall have exclusive jurisdiction to hear any action to enforce, modify, or terminate the initial order issued by the Family Division of the Superior Court for visitation, contact, or information.
(b) Upon a showing by affidavit of immediate harm to the child, the Probate Division of the Superior Court may temporarily stay the order of visitation or contact on an ex parte basis until a hearing can be held, or stay the order of permanent guardianship and transfer legal custody of the child to the Commissioner for Children and Families.
(1) The order transferring the child’s legal custody to the Commissioner shall have the same legal effect as a similar order issued by the Family Division under the authority of 33 V.S.A. chapters 51-53.
(2) The Probate Division shall then immediately notify the Department for Children and Families, the State’s Attorney, and the Family Division when it has issued an order transferring the child’s legal custody to the Commissioner, and nothing in this subsection shall prohibit the State from commencing proceedings under 33 V.S.A. chapters 51-53.
(c) Nothing in this section shall limit the jurisdiction of the Family Division of the Superior Court to enter an abuse prevention order pursuant to 15 V.S.A. chapter 21. A breach by the permanent guardian of an order for visitation, contact or information shall not be grounds for voiding or terminating the permanent guardianship. However, the court may enforce the order with all the powers and remedies of the court, including contempt.
(d) A modification of an order of visitation or contact shall be based upon a finding by a preponderance of the evidence that there has been a substantial change in the material circumstances, and that the proposed modification is in the best interests of the child. (Added 1999, No. 162 (Adj. Sess.), § 2; amended 2009, No. 97 (Adj. Sess.), § 7; 2009, No. 154 (Adj. Sess.), § 238; No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2015, No. 153 (Adj. Sess.), § 24.)
§ 2671. Voluntary guardianship
(a) Any person of at least 18 years of age, who desires assistance with the management of his or her affairs, may file a petition with the Probate Division of the Superior Court requesting the appointment of a guardian.
(b) The petition shall:
(1) state that the petitioner understands the nature, extent, and consequences of the guardianship;
(2) specify which of the powers of the guardian as set forth in section 3069 of this title petitioner requests to be exercised by the guardian; and
(3) specify which individual the petitioner requests to be appointed guardian.
(c) A person who requests that a voluntary guardian be appointed shall appear before the court, if physically able. If not physically able to appear, the petition shall be accompanied by a letter from a physician or qualified mental health professional stating that the petitioner understands the nature, extent, and consequences of the guardianship requested and the procedure for revoking the guardianship. The letter may support a finding by the court that the petitioner does, in fact, understand the nature, extent, and consequences of the guardianship requested and the procedure for revoking the guardianship.
(d)(1) The court shall hold a hearing on the petition, with notice to the petitioner and the proposed guardian.
(2) At the hearing, the court shall explain to the petitioner the nature, extent, and consequences of the proposed guardianship and determine if the petitioner agrees to the appointment of the named guardian.
(3) At the hearing, the court shall explain to the petitioner the procedures for terminating the guardianship.
(4) After the hearing, the court shall make findings on the following issues:
(A) whether the petitioner is uncoerced;
(B) whether the petitioner understands the nature, extent, and consequences of the proposed guardianship; and
(C) whether the petitioner understands the procedures for terminating the guardianship.
(e) The court may order that the petitioner be evaluated by a person who has specific training and demonstrated competence to evaluate the petitioner. The scope of the evaluation shall be limited to whether the petitioner understands the nature, extent, and consequences of the guardianship requested and the procedures for revoking the guardianship.
(f) If after the hearing the court finds that the petitioner is uncoerced, understands the nature, extent, and consequences of the proposed guardianship, and understands the procedures for terminating the guardianship, it shall enter judgment specifying the powers of the guardian as requested in the petition. The court shall mail a copy of its order to the petitioner and the guardian, and it shall attach to the order a notification to the petitioner setting forth the procedures for terminating the guardianship.
(g) If the court finds that the petitioner does not meet the criteria set forth in subsection (d) of this section, it shall dismiss the petition; provided, however, that if the court finds that the petitioner does not understand the nature, extent, and consequences of the guardianship and in the court’s opinion requires assistance with the management of his or her personal or financial affairs, the court may treat the petition as if filed pursuant to section 3063 of this title.
(h) The person under guardianship may, at any time, file a motion to revoke the guardianship. Upon receipt of the motion, the court shall give notice as provided by the Rules of Probate Procedure. Unless the guardian files a motion pursuant to section 3063 of this title within 14 days from the date of the notice, the court shall enter judgment revoking the guardianship and shall provide the ward and the guardian with a copy of the judgment.
(i)(1) Any person interested in the welfare of the person under guardianship, as defined by section 3061 of this chapter, may petition the court where venue lies for termination of the guardianship. Grounds for termination of the guardianship shall be:
(A) failure to render an account after having been duly cited by the court;
(B) failure to perform an order or decree of the court;
(C) a finding that the guardian has become incapable of or unsuitable for exercising his or her powers; or
(D) the death of the guardian.
(2) The court may also consider termination of the guardianship on the court’s own motion.
(j) The guardian shall file an annual report with the appointing court within 30 days of the anniversary date of appointment containing the information required by section 3076 of this title.
(k) The court shall mail an annual notice on the anniversary date of the appointment of the guardian to the person under a guardianship setting forth the procedure for terminating the guardianship and the right of the person under guardianship to receive and review the annual reports filed by the guardian.
(l) At the termination of a voluntary guardianship, the guardian shall render a final accounting as required by section 2921 of this title.
(m) The guardian shall not be paid any fees to which the guardian may be entitled from the estate of the person under guardianship until the annual reports or final accounting required by this section have been filed with the court. (Amended 1979, No. 76, § 3; 1985, No. 144 (Adj. Sess.), § 123; 2009, No. 97 (Adj. Sess.), § 9; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 11, § 34.)
§ 2672. Repealed. 1979, No. 76, § 20.
§ 2681. Spendthrift, defined
The word “spendthrift” shall be held to include every person who is liable to be put under guardianship on account of excessive drinking, gambling, idleness, or debauchery.
§ 2682. Repealed. 2005, No. 174 (Adj. Sess.), § 140(3).
§ 2683. Repealed. 1979, No. 76, § 20.
§ 2684. Spendthrift; hearing; notice
When a petition is filed for the appointment of a guardian under section 2682 of this title, the Probate Division of the Superior Court shall schedule a hearing and notice shall be given as provided by the Rules of Probate Procedure. (Amended 1979, No. 76, § 16; 1985, No. 144 (Adj. Sess.), § 124; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2685. Decree; appeal
On hearing the parties interested, the court shall make decree in the premises as appears just. The person complained of may appeal from such decree without giving bond, but during the pendency thereof, the person so appointed shall act as guardian.
§ 2686. Repealed. 1979, No. 76, § 20.
§ 2687. Expense of resisting application
When the Probate Division of the Superior Court appoints a guardian for a spendthrift or a mentally disabled person, it may allow for the expenses of the ward in defending against the petition such sum out of the ward’s estate as appears to be reasonable. (Amended 1979, No. 76, § 4; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2688. Repealed. 1967, No. 147, § 53(b), eff. Oct. 1, 1968.
§ 2689. Repealed. 2005, No. 174 (Adj. Sess.), § 140(3).
§ 2690. Guardian to give notice that ward’s contracts and transfers will be void
As soon as possible after appointment, the guardian of a spendthrift shall give notice of the appointment as provided by the Rules of Probate Procedure and shall give similar notice that contracts made by the ward will be held void. Contracts, gifts, sales, or transfers of real or personal estate made by the ward after the date of appointment of the guardian shall be void. (Amended 1979, No. 76, § 18; 1985, No. 144 (Adj. Sess.), § 126.)
§ 2691. Spouse to support and have custody
The appointment of a guardian for a person who is married shall not relieve the ward’s spouse from liability to support the spouse, nor shall it deprive the spouse of the custody of the ward provided the spouse is suitable and competent to care for the ward. (Amended 1979, No. 76, § 5.)
§ 2692. Extent of guardian’s control
Until they are legally discharged, guardians of spendthrifts shall have the possession and management of the estates of their wards. (Amended 1979, No. 76, § 19.)
§ 2693. Married woman may be guardian
A married woman may be appointed guardian of her husband or of any other person under the provisions of this chapter and, when so appointed, shall have the same rights, powers, and privileges and be subject to the same liabilities as if she were unmarried.
§ 2694. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.
§ 2711. Nonresidents; powers of guardian
When on the petition of a nonresident person, or other person interested in the welfare of that person, it appears that the person owns or has an interest in real or personal estate situated in this State, and that the person, if a resident, would be liable to be put under guardianship under any of the provisions of this chapter, the Probate Division of the Superior Court may appoint a guardian as to the property of that person within this State. As to such property, the guardian shall have the same powers, rights, and duties as a guardian appointed for a person residing within the State. (Amended 1985, No. 144 (Adj. Sess.), § 127; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2712. Hearing
When petition is made for the appointment of a guardian under section 2711 of this title, the Probate Division of the Superior Court shall proceed under the Rules of Probate Procedure as in cases of the appointment of guardians of resident mentally disabled persons. (Amended 1971, No. 185 (Adj. Sess.), § 179, eff. March 29, 1972; 1979, No. 76, § 6; 1985, No. 144 (Adj. Sess.), § 128; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
- Subchapter 003: BONDS
§ 2751. Bonds; how conditioned
Before acting as such, a guardian appointed by the Probate Division of the Superior Court shall give a bond with sureties in a sum as the court directs, conditioned as follows:
(1) to make a true inventory of the real and personal estate of the ward coming to the guardian’s possession or knowledge and file the original with the court and serve copies of it as provided by the Rules of Probate Procedure;
(2) to manage and dispose of the estate and effects according to law and for the best interest of the ward and faithfully discharge the trust in relation thereto;
(3) to render an account of the property of the ward in the guardian’s hands, including the proceeds of real estate sold by the guardian, and of the management and disposition of the same, within one year after appointment, if the ward has real or personal estate, or within one year after such estate comes to the guardian’s possession or knowledge, and at other times as the court directs;
(4) at the expiration of the trust, to render and settle the account and pay over and deliver the estate and effects remaining in the guardian’s hands or due from settlement to the persons legally entitled to the same. (Amended 1985, No. 144 (Adj. Sess.), § 129; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2752. To respond for principal only; court may order income paid to parent
When minor children inherit real or personal estate as the representatives of a deceased parent, or take the same by will, and the living parent of the children as guardian has the custody of their persons and estates, if the Probate Division of the Superior Court directs, the guardian shall furnish a bond to respond and pay the principal of the estate only. The income of the estate shall be expended at the discretion of the guardian for the benefit of the children without account to the court. When a person other than a parent of the children is their guardian and has the custody of their estates only, the court, from time to time, may order and direct the guardian to pay over to the parent of the children the part of the income of their estates, to be expended for their benefit as to the court seems just, in view of the relative value of the estate of the parent and the children. (Amended 1985, No. 144 (Adj. Sess.), § 130; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2753. Additional bond
At any time the Probate Division of the Superior Court may require an additional bond of such guardian, to respond both principal and income, if the interest of the wards requires it. (Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2754. New bond
A ward, the heir apparent of a ward, or a person interested in the welfare of a ward, as defined in section 3061 of this title, may file a motion with the Probate Division of the Superior Court to require the guardian to give a new and sufficient bond. If it appears to the court that the bond is insufficient, the court may order the guardian to give a new and sufficient bond. When it appears on the motion of a surety in a guardian’s bond that the surety is liable to be injured thereby, the court may discharge the surety from future responsibility and order the guardian to give a new bond. After being notified of the order, if the guardian does not give a new bond, the court may remove the guardian and appoint some other person. (Amended 1985, No. 144 (Adj. Sess.), § 131; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2755. Limitation of action on bond
An action shall not be maintained against the sureties in a bond given by a guardian, unless it is commenced within four years from the time the guardian is discharged. If the person entitled to commence the action is out of the State at the time of such discharge, he or she may commence such action within four years from the time he or she comes into the State.
- Subchapter 004: INVENTORY AND DISPOSITION OF ESTATE
§ 2791. Inventory
When his or her ward has estate, real or personal, a guardian appointed by the Probate Division of the Superior Court shall make and return an inventory thereof, agreeably to the condition of his or her bond. (Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2792. Appraisal to be made; exception
Except in the following cases, such guardian shall cause the estate to be appraised by two or more disinterested persons, to be appointed by the Probate Division of the Superior Court:
(1) when all the estate of the ward is in money, stocks, notes or other demands;
(2) when the ward is a minor, and his or her estate, besides money, stocks, notes or other demands does not amount to the sum of $50.00;
(3) when the value of the estate appears by the records of the court to which the inventory is returnable. (Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2793. Guardian to account for and dispose of personalty
A guardian shall account for and dispose of the personal estate of his or her ward, as administrators account for and dispose of personal estate in the settlement of estates.
§ 2794. Citation of person suspected of embezzling or secreting
If a guardian, ward, creditor or heir apparent of a ward files a motion complaining to the Probate Division of the Superior Court that a person is suspected of having concealed, embezzled, or conveyed away money, goods, or chattels of the ward, or that such person has possession or knowledge of deeds or other writings that would furnish evidence of a right, title, interest, or claim of the ward in or to real or personal estate, the court may cite that person to appear before it to be examined on oath upon the matter. (Amended 1979, No. 76, § 7; 1985, No. 144 (Adj. Sess.), § 132; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2795. Commitment for disobedience; examination
If the person so cited does not appear and submit to examination, or answer lawful interrogatories, the Probate Division of the Superior Court may issue a warrant committing the person to the custody of the Commissioner of Corrections until compliance is given. Interrogatories shall be in writing, signed by the party examined, and filed in the court. (Amended 1985, No. 144 (Adj. Sess.), § 133; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2796. Citation; costs
Such citation shall issue and costs be taxed, as provided in case of similar citations in the settlement of estates.
§ 2797. Guardian to manage estate and maintain ward
A guardian shall manage the estate of his or her ward frugally and without waste and in a manner most beneficial to the ward and out of the estate of his or her ward shall provide for the maintenance of the ward and his or her family, according to his or her condition and property.
§ 2798. Guardian may sell personalty and support ward
When it is necessary or for the interest of his or her ward, the guardian shall sell his or her personal estate. Out of the proceeds, and the income of his or her real estate, if sufficient, such guardian shall pay the necessary expenses of the maintenance and education of his or her ward.
§ 2799. Repealed. 1979, No. 76, § 20.
§ 2800. Disputed claim may be referred
When there is a disputed claim between a guardian, on behalf of the ward, and any other person, with the consent of the parties in writing the Probate Division of the Superior Court may refer it to a master as provided by the Rules of Probate Procedure. (Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1985, No. 144 (Adj. Sess.), § 134; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2801. Guardian may discharge mortgage; consent to sale of realty
On payment to him of the sum due on a real estate mortgage, a guardian may give an acquittance or release of the claim of his ward as mortgagee or assignee under such mortgage, and may give the consent of his ward to the sale of real estate when such consent is required by law.
§ 2802. Partition of estate of which ward has an undivided interest
When a ward is joint tenant or tenant in common with others, the ward’s guardian may agree with the other joint tenants or tenants in common, to make partition of the lands so held. When that agreement is made in writing and filed with the Probate Division of the Superior Court, the Probate Division of the Superior Court may make the partition. A certified copy thereof shall be recorded in the office where by law a deed of those lands is required to be recorded, and the partition shall be binding on the ward, the ward’s heirs and assigns and on the parties to the agreement. (Amended 1971, No. 179 (Adj. Sess.), § 9; 1985, No. 144 (Adj. Sess.), § 135; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2803. Court may order personalty sold and proceeds invested in real estate
(a) On motion of a guardian, a ward, or relative of a ward, or of a person interested in a ward’s estate, by order, the Probate Division of the Superior Court may authorize or require the guardian to sell and transfer stock or other personal estate of the ward, collect demands, and invest in real estate the proceeds and the monies in the hands of the guardian, if the court deems it beneficial to the ward.
(b) The court shall schedule a hearing and notice shall be given as provided by the Rules of Probate Procedure. (Amended 1979, No. 76, § 8; 1985, No. 144 (Adj. Sess.), § 136; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2804. Court may order estate paid to guardian in other state
When a minor or other person having a guardian appointed by a Probate Division of the Superior Court in this State, has a guardian in another state or country, and it appears to the Probate Division of the Superior Court having jurisdiction in this State that it is necessary and would be beneficial to the interests of such ward to use a part or all of his or her estate in this State to protect his or her interests and property in the other state or country, such court may order the guardian in this State to pay over to the guardian in the other state or country such part of the ward’s estate in this State as may be necessary to protect the ward’s interests in such other state or country. Such an order shall not be made unless it appears to the Probate Division of the Superior Court that the guardian in such other state or country has by bond or otherwise given satisfactory security for the faithful execution of his or her trust. (Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
- Subchapter 005: PAYMENT OF DEBTS OF WARD
§ 2841. Limiting time for payment of debts
When a ward owes debts at the time of the appointment of his or her guardian, the Probate Division of the Superior Court may allow the guardian a reasonable time, not exceeding one year, to dispose of the estate and collect the demands for the ward and pay such debts. In the discretion of the court, such time may be extended so as not to exceed two years in the whole. (Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2842. Realty to be taken when personalty exhausted
The personal estate of the ward shall be first used for the payment of his or her debts. If the personal estate and the income of his or her real estate are not sufficient, such expenses and debts shall be paid out of the real estate, when sold, according to law.
§ 2843. Claims, time for presenting limited; when barred
On motion of the guardian, the Probate Division of the Superior Court may make an order requiring creditors of a ward to present their claims to the guardian for payment within a time to be limited by the court, which time shall not be more than 18 months nor less than six months. Notice shall be given as provided by the Rules of Probate Procedure. Claims not presented within the time limited shall be barred as against the guardian, unless after notice of the claims, there is estate in the guardian’s hands sufficient to pay all the debts against the ward. (Amended 1985, No. 144 (Adj. Sess.), § 137; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§§ 2844, 2845. Repealed. 1985, No. 144 (Adj. Sess.), § 163.
§ 2846. Court may order dividend
At the expiration of the time limited for creditors to present their claims, if it appears that the ward has not estate sufficient to pay his or her debts, the Probate Division of the Superior Court shall order the effects in the hands of the guardian for that purpose to be divided among the creditors in proportion to their claims. (Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2847. Allowance to guardian
Before making a dividend, the court may allow to the guardian, out of the estate of the ward, a reasonable sum for his expenses in the management and settlement of the property for expenses in taking care of the person and family of the ward during the settlement, and for wearing apparel of the ward and his or her family.
§ 2848. After dividend, claims barred as to guardian; exception
After the dividend is made, the creditors shall have no further claim against the guardian on their demands, except where estate of the ward afterwards comes to his or her possession or knowledge. In such case, the court may make another dividend among the creditors.
§ 2849. Claims not barred
Sections 2841-2848 of this title shall not bar the claims of creditors against the ward after he or she is discharged from guardianship.
§ 2850. Ward not to be sued; action commenced before appointment may proceed
A writ or execution shall not be issued against a ward for a debt while he or she is under guardianship; but actions commenced against a person before the appointment of his guardian may be prosecuted to final judgment. A creditor may have execution against the real or personal estate of the ward on which he or she had a previous lien by attachment, and such real or personal estate may be disposed of according to law to satisfy such execution.
- Subchapter 006: SALE OF REAL ESTATE
§ 2881. Real estate; when may be sold
The Probate Division of the Superior Court may authorize guardians to sell a part or all of the lands of their wards or the interest of such wards in real estate, vested or contingent, in the following cases:
(1) when the personal estate of a ward is insufficient to pay the expenses of maintaining the ward and his or her family, or of educating a minor ward as his or her circumstances require;
(2) when the personal estate of a ward is insufficient to pay his or her debts contracted before or after the appointment of his or her guardian;
(3) when it appears to the court conducive to the interest of the ward to sell the real estate, or an interest vested or contingent in the real estate and put the proceeds at interest or invest it in stocks or in real estate. (Amended 1979, No. 76, § 9; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2882. Regulations under which license granted
As provided in section 2881 of this title, the order of a Probate Division of the Superior Court licensing the sale of lands of wards shall be made under the following regulations:
(1) On motion of the guardian for license to sell, the probate division of the superior court shall schedule a hearing and notice shall be given as provided by the Rules of Probate Procedure.
(2) At the hearing, the guardian shall produce evidence of the value of the estate to be sold, the interest of the ward therein and of the necessity of sale.
(3) Before license is granted and if the court requires, the guardian shall give a bond with sufficient sureties, in a sum double the value of the land to be sold, conditioned to account for the proceeds of the sale, according to law, and shall also be sworn to sell the estate as judged will be most beneficial to the ward. A certificate of the oath made by the authority administering it shall be returned to the Probate Division of the Superior Court before the license issues.
(4) If the foregoing requisites are complied with, the court may order a public or private sale of the lands of the ward or an interest in the same, or such part thereof as the court deems necessary, and shall furnish the guardian with a certified copy of its order.
(5) If the court directs a public sale, the order shall designate the mode of giving notice of the time and place thereof, and the sale shall be in the town where the lands lie.
(6) The order of sale shall state that the requisites mentioned in subdivisions (1)-(3) of this section have been complied with. A copy thereof shall be recorded, previous to the sale, in the office where a deed of such lands is required to be recorded. (Amended 1985, No. 144 (Adj. Sess.), § 138; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2883. Term of license
Such license shall not continue in force more than two years.
§ 2884. Deed, effect of
A deed executed by a guardian of the lands of his or her ward under such order of sale shall be valid and shall convey the interest of the ward in the lands, whether vested or contingent.
§ 2885. Guardian to report sale
Within three months after a sale of real estate of his or her ward under a license, a guardian shall make report of his or her proceedings, setting forth the time and manner of sale, the person to whom and the price for which it was sold and a description of each parcel sold. Such report shall be filed and docketed in the Probate Division, but neglect to make the report shall not affect the title to the lands sold. (Amended 1971, No. 179 (Adj. Sess.), § 10.)
§ 2886. License when guardian or ward resides out of state
On motion to the Probate Division of the Superior Court for an order to sell the real estate of a ward, when the sale is necessary or conducive to the interests of that person, a license may be granted as provided in this chapter, although the guardian making the motion, or the ward, or both, reside out of the State. (Amended 1979, No. 76, § 10; 1985, No. 144 (Adj. Sess.), § 139; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2887. Conveyance of land that ward was under contract to convey
When a person, while not under guardianship, was under contract binding in law or equity to deed lands, on motion, the Probate Division of the Superior Court may grant license to the guardian of that person to convey those lands according to the contract. The court shall schedule a hearing and notice shall be given as provided by the Rules of Probate Procedure. (Amended 1979, No. 76, § 11; 1985, No. 144 (Adj. Sess.), § 140; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2888. License not to be granted to creditors’ injury
The license shall not be granted if it appears to the court that the conveyance would so reduce the assets in the hands of the guardian as to lessen the amount that creditors would receive from the estate of the ward.
§ 2889. If guardian grantee, judge to convey; deed, effect of
If the contract is to convey lands to the guardian, the judge of the Probate Division shall execute the deed. Such deed, or the deed of the guardian, as the case may be, shall be as effectual to convey the lands as if executed by the ward when not under guardianship. (Amended 1979, No. 76, § 12.)
§ 2890. Lands held in trust to be conveyed to beneficiary
When a person, while not under guardianship, held lands in trust for another person, or where lands have been set off on execution to a ward on a debt in the name of the ward but being the debt of some other person, and not belonging to the ward, upon motion, the Probate Division of the Superior Court shall schedule a hearing and notice shall be given as provided by the Rules of Probate Procedure. The court may grant license to the guardian to deed the lands to the person for whose benefit they are held. The court may decree the execution of the trust, whether created by deed or by law. (Amended 1979, No. 76, § 13; 1985, No. 144 (Adj. Sess.), § 141; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2891. When guardian dies or is removed pending sale, new license
If the guardian dies, resigns, or is removed before the completion of a sale of real estate under a license, within two years from the time of granting the same, the court may issue a new license to his successor without further notice or hearing.
- Subchapter 007: SETTLEMENT OF ACCOUNTS
§ 2921. Accounts, time
Within one year after his or her appointment and annually thereafter and at such other times as the Probate Division of the Superior Court directs, a guardian whose ward has real or personal estate shall render and settle with the court an account of the proceeds and expenditure of his or her ward’s estate. At the expiration of his or her trust, such guardian shall render and settle with the Probate Division of the Superior Court his or her account of the property of his or her ward, including the income and proceeds of the sale of his or her personal and real estate, and pay over and deliver to persons entitled to the same the estate and effects remaining in his or her hands, or due from him or her on such settlements. (Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2922. By guardian of nonresident ward
When a minor or other person has a guardian in this State, but resides in another state or country, and it is shown to the court that such minor or other person has a guardian in the state or country where he or she resides, and that such guardian, by bond or otherwise, has given satisfactory security for the faithful performance of his or her trust, the court may order the first named guardian to settle his or her account and pay over the estate of his or her ward to the nonresident guardian, if it appears to the court that such transfer will be for the interests of the ward.
§ 2923. Property may be ordered into hands of nonresident guardian; proceedings
(a) When a guardian and ward are nonresidents and the ward is entitled to property in this State, the guardian may petition the Probate Division of the Superior Court for removal of the property. The petition shall set forth that the removal of the property of the ward will not conflict with the terms and limitations of the right by which the ward owns the same nor be prejudicial to the ward’s interests therein. The petition shall be accompanied by a complete transcript from the records of a court of competent jurisdiction of the state in which the guardian and ward reside, duly exemplified or authenticated, showing appointment as guardian of the ward and that, by bond or otherwise, satisfactory security has been given for the faithful execution of the trust.
(b) The transcript shall be filed in the court, and the guardian shall thereupon be entitled to receive letters or a certificate of guardianship of the estate of the ward from the court, which shall authorize the guardian to demand, sue for, and recover property and remove the same to the other state.
(c) The court may order a resident guardian, executor, or administrator, having any of the estate of the ward, to deliver the same to the nonresident guardian, provided that all debts in favor of residents or citizens of this State, known to exist against the estate, whether due or to become due, have first been paid or tendered. (Amended 1971, No. 179 (Adj. Sess.), § 11; 1985, No. 144 (Adj. Sess.), § 142; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2924. Same; exception
Section 2923 of this title shall not apply if the parent of the ward, being a resident of this State at the time of death, has appointed a guardian for the ward by last will and testament and the guardian resides in this State at the time the petition provided for in section 2923 is made, unless the consent of the testamentary guardian to the removal of the property is satisfactorily shown to the Probate Division of the Superior Court to which the petition is made. (Amended 1985, No. 144 (Adj. Sess.), § 143; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2925. Guardian to swear to correctness of account
The Probate Division of the Superior Court shall examine every guardian upon oath as to the truth and correctness of an account before the same is allowed by the court. However, in its discretion, the court may dispense with such examination when objection is not made to the allowance of the account. (Amended 1985, No. 144 (Adj. Sess.), § 144; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2926. Surety may intervene as party; rights of surety
Upon the settlement of a guardian’s account, any person interested as surety in respect to the account may intervene as a party to the accounting with the same rights as the surety of an administrator in like cases. (Amended 1985, No. 144 (Adj. Sess.), § 145.)
§ 2927. Remedy, after guardian’s discharge, reexamination of accounts
After the trust of a guardian is terminated, if the ward or the ward’s legal representatives are dissatisfied with the account as allowed by the Probate Division of the Superior Court during the continuance of the trust, within two years, and if the ward or the legal representatives do not at the time of the termination of the trust reside in this State, within four years thereafter, they may file a motion to reopen the estate for a reexamination of the account. After notice as provided by the Rules of Probate Procedure, the court shall reexamine accounts previously allowed. A party may appeal from the decision of the Probate Division to the Civil Division of the Superior Court. The final allowance of accounts in these proceedings shall be conclusive between the parties. (Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1985, No. 144 (Adj. Sess.), § 146; 2009, No. 154 (Adj. Sess.), § 124, eff. Feb. 1, 2011.)
§ 2928. Death of ward
Whenever a person dies while under guardianship, the guardian may pay so much of the burial expenses as the guardian is able from the funds in his or her hands and make final account to the Probate Division of the Superior Court. (Amended 1985, No. 144 (Adj. Sess.), § 147; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
- Subchapter 008: VOID OR VOIDABLE APPOINTMENT
§ 2961. Previous acts confirmed and compensation allowed, on being lawfully appointed
If a person who has acted as guardian under an appointment void or voidable by reason of the incapacity of the judge or register of probate to make such appointment, shall afterwards be lawfully appointed guardian of the ward named in such void or voidable appointment, the Probate Division of the Superior Court making such lawful appointment may ratify and confirm the acts, approve and allow the accounts, and allow full compensation for the services of such person while acting under such previous appointment, if it appears that such person has acted in good faith and executed the supposed trust as required by law. (Added 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2962. Good faith
A person who has acted in good faith as guardian under an appointment void or voidable may render an account as guardian to the court in which the proceeding is pending. If it appears that the person accepted and acted under appointment in good faith and has executed the supposed trust as required by law, the court shall confirm the acts, allow the accounts, and allow full compensation for the services of the person, and may allow and confirm all accounts of the person, which have been previously examined and allowed if the accounts are found correct and just. (Amended 1985, No. 144 (Adj. Sess.), § 148.)
§ 2963. Conveyances valid
When the acts of a guardian under a void or voidable appointment are confirmed, as provided in sections 2961 and 2962 of this title, all sales of the real estate of the supposed ward previously made under a license issued by the Probate Division of the Superior Court shall be valid and of full force from the date of sale. (Amended 1985, No. 144 (Adj. Sess.), § 149; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 2964. Bond
A bond given to a Probate Division of the Superior Court by a guardian under a void or voidable appointment shall be valid. If he or she is appointed guardian, as provided in section 2961 of this title, a new bond need not be required, if, in the opinion of the Probate Division of the Superior Court, the first bond given is sufficient. (Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
- Subchapter 009: TERMINATION OF GUARDIANSHIP
§ 3001. Removal; resignation; marriage of guardian; vacancies
If a guardian for a minor neglects to render an account as required by the Vermont Rules of Probate Procedure or to appear, or to perform an order or decree of the Probate Division of the Superior Court, or absconds or becomes mentally disabled or otherwise incapable or unsuitable to discharge the trust, the Probate Division of the Superior Court may remove or may allow the guardian to resign. Marriage shall not extinguish a guardian’s authority. When a guardianship becomes vacant, the court may make a new appointment. (Amended 1979, No. 76, § 14; 1985, No. 144 (Adj. Sess.), § 150; 2009, No. 3, § 12a, eff. Sept. 1, 2009; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 3002. Minor ward’s marriage; exception
The marriage of a minor under guardianship shall discharge the guardian from all right to custody and education, but not from a right to property of the ward. (Amended 1985, No. 144 (Adj. Sess.), § 151; 2009, No. 3, § 12a, eff. Sept. 1, 2009.)
§ 3003. Parent may move for guardian’s removal; notice
When, by reason of the incapacity or unsuitableness of a parent to have the custody and education of a minor child, another person has been appointed guardian of the minor, the parent may, at any time, file a motion for the removal of the guardian. The court shall schedule a hearing and notice shall be given as provided by the Rules of Probate Procedure. (Amended 1985, No. 144 (Adj. Sess.), § 152; 2013, No. 96 (Adj. Sess.), § 64.)
§ 3004. Court may revoke
Upon hearing, if the Probate Division of the Superior Court is of the opinion that the parent is then a proper person to have the care and custody of the child, it shall revoke the guardianship and order the guardian to deliver the custody of the child to the parent within a time it judges reasonable. (Amended 1985, No. 144 (Adj. Sess.), § 153; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 3005. Guardian refusing to give up ward, committed
If the guardian does not obey the order, the court may issue a warrant directed to any sheriff or constable requiring him or her to apprehend and commit the guardian to the Commissioner of Corrections until he or she performs the order or is discharged by law.
§ 3006. Repealed. 1979, No. 76, § 20.
§ 3007. Repealed. 2005, No. 174 (Adj. Sess.), § 140(3).
§§ 3008-3010. Repealed. 1979, No. 76, § 20.
§ 3011. Special fiduciary
When a guardian fails to perform duties required by law, the Rules of Probate Procedure, or order of the court, the Probate Division of the Superior Court may suspend the guardian from further duties and appoint a special fiduciary to assume temporarily the powers and duties of the guardian replaced. A special fiduciary shall give a bond as is otherwise required in the proceeding. (Added 1985, No. 144 (Adj. Sess.), § 155; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
- Subchapter 010: APPEALS
§§ 3041-3044. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.
- Subchapter 011: POWERS OF ATTORNEY
§§ 3051, 3052. Repealed. 2001, No. 135 (Adj. Sess.), § 18.
- Subchapter 012: PERSONS IN NEED OF GUARDIANSHIP
§ 3060. Policy
Guardianship 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 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. (Added 1979, No. 76, § 15; amended 2007, No. 186 (Adj. Sess.), § 1.)
§ 3061. Definitions
The words and phrases used in this subchapter shall be defined as follows:
(1) “Person in need of guardianship” means a person who:
(A) is at least 18 years of age; and
(B) 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:
(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) “Near relative” means a parent, stepparent, brother, sister, grandparent, spouse, domestic partner, or adult child.
(5) “Interested person” means 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, agent named in an advance directive or in a power of attorney, person nominated as guardian in an advance directive, or member of the clergy.
(6) “Respondent” means a person who is the subject of a petition filed pursuant to section 3063 of this title or a person under guardianship who is the subject of any subsequent petition, motion, or action filed pursuant to this subchapter.
(7) “Party” shall have the same meaning as defined by Rule 17(a)(3) and (b) of the Vermont Rules of Probate Procedure.
(8) “Person under guardianship” means a person in need of guardianship for whom a guardianship order has been issued.
(9) “Do not resuscitate order” shall have the same meaning as in 18 V.S.A. § 9701(7).
(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. (Added 1979, No. 76, § 15; amended 1985, No. 144 (Adj. Sess.), § 156; 1989, No. 191 (Adj. Sess.); 2005, No. 198 (Adj. Sess.), §§ 9, 15, eff. Sept. 1, 2006; 2007, No. 186 (Adj. Sess.), § 1.)
§ 3062. Jurisdiction; review of guardian’s actions
(a) If this State has jurisdiction of a guardianship proceeding pursuant to chapter 114 of this title, then the Probate Division of the Superior Court shall have exclusive jurisdiction over the proceedings. All proceedings to determine whether this court has jurisdiction pursuant to chapter 114 of this title shall be brought in the Probate Division of the Superior Court.
(b) The Probate Division of the Superior Court shall have exclusive original jurisdiction over all proceedings brought under the authority of this chapter or pursuant to 18 V.S.A. § 9718.
(c) The Probate Division of the Superior 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. (Added 1979, No. 76, § 15; amended 1985, No. 144 (Adj. Sess.), § 157; 2005, No. 55, § 2, eff. Sept. 1, 2005; 2007, No. 186 (Adj. Sess.), § 1; 2009, No. 154 (Adj. Sess.), § 125, eff. Feb. 1, 2011; 2011, No. 56, § 26.)
§ 3063. Petition for guardianship
An interested person may file a petition with the Probate Division of the Superior Court for the appointment of a guardian. The petition shall state:
(1) the names and addresses of the petitioner and the respondent; 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) that the respondent is alleged to be a person in need of guardianship, and 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. (Added 1979, No. 76, § 15; amended 1983, No. 91, § 8; 1985, No. 144 (Adj. Sess.), § 158; 2005, No. 198 (Adj. Sess.), § 15, eff. Sept. 1, 2006; 2007, No. 186 (Adj. Sess.), § 1; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 3064. Notice of petition and hearing
(a) Upon the filing of the petition, the Probate Division of the Superior 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. (Added 1979, No. 76, § 15; amended 1985, No. 144 (Adj. Sess.), § 159; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 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 interests 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 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. (Added 1979, No. 76, § 15; amended 1991, No. 38, § 1; 2005, No. 198 (Adj. Sess.), § 10, eff. Sept. 1, 2006; 2007, No. 186 (Adj. Sess.), § 1.)
§ 3066. Guardian ad litem
On motion of the respondent’s or 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 person under guardianship is unable to communicate with or advise counsel. (Added 1979, No. 76, § 15; amended 1991, No. 38, § 2; 2007, No. 186 (Adj. Sess.), § 1.)
§ 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 qualified evaluators.
(b) The evaluation shall be performed by 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 that the respondent can manage without supervision or assistance;
(B) those aspects of his or her personal care and financial affairs that 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 that 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 that should be given to the guardian, including the specific support services and benefits that 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 14 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 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 that 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. (Added 1979, No. 76, § 15; amended 1989, No. 187 (Adj. Sess.), § 5; 1995, No. 174 (Adj. Sess.), § 3; 2005, No. 174 (Adj. Sess.), § 24; 2007, No. 15, § 7; 2007, No. 186 (Adj. Sess.), § 1; 2017, No. 11, § 35.)
§ 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 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 a person in need of guardianship or will be a person in need of guardianship on attaining 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. (Added 1979, No. 76, § 15; amended 1983, No. 91, § 9; 2007, No. 186 (Adj. Sess.), § 1.)
§ 3068a. Rights of a person under guardianship
A person under guardianship retains the same legal and civil rights guaranteed to all Vermont residents under the Vermont and U.S. 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 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 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. (Added 2005, No. 198 (Adj. Sess.), § 11, eff. Sept. 1, 2006; amended 2007, No. 186 (Adj. Sess.), § 1.)
§ 3069. Powers of a guardian
(a) If the court enters judgment pursuant to subsection 3068(f) of this title, it may appoint a 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 Division of the Superior Court expressly orders otherwise in a petition for review of the advance directive under 18 V.S.A. § 9718.
(c) 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 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.
(2) 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) 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) The power to approve or withhold approval of any contract, except for necessaries, which the person under guardianship wishes to make.
(5) 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) The power to obtain legal advice and to commence or defend against court actions in the name of the person under guardianship.
(d)(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. (Added 1979, No. 76, § 15; amended 2005, No. 198 (Adj. Sess.), § 12, eff. Sept. 1, 2006; 2007, No. 186 (Adj. Sess.), § 1; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 3070. Repealed. 2007, No. 186 (Adj. Sess.), § 1.
§ 3071. Duties of guardian
(a) The guardian shall maintain close contact with the person under guardianship and encourage maximum self-reliance on the part of the person under guardianship.
(b) In addition to the powers vested in the guardian by the court pursuant to section 3069 of this title, the court may order the guardian to assure that the person under guardianship receives those benefits and services to which he or she is lawfully entitled and 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 person under guardianship who is of school age;
(2) residential services for a 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. (Added 1979, No. 76, § 15; amended 2007, No. 186 (Adj. Sess.), § 1.)
§ 3072. Guardians; individuals who may serve
(a)(1) Competent individuals of at least 18 years of age may serve as guardians.
(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 nomination of a guardian in an advance directive or in a will;
(2) any current or past expressed preferences of the respondent;
(3) the geographic location of the proposed guardian;
(4) the relationship of the proposed guardian and the respondent;
(5) the ability of the proposed guardian to carry out the powers and duties of the guardianship;
(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 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. (Added 1979, No. 76, § 15; amended 1983, No. 91, § 7; 1985, No. 151 (Adj. Sess.), § 13; 2007, No. 186 (Adj. Sess.), § 1.)
§ 3073. Change of residential placement
(a)(1) When a guardian who has been granted the power to choose or change the residence of the person under guardianship pursuant to subdivision 3069(c)(1) of this title wishes to admit the person under guardianship to a nursing home or change the residential placement of the 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 person under guardianship pursuant to subdivision 3069(c)(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 person under guardianship pursuant to subdivision 3069(c)(1) of this title may change the residential placement of the 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 person under guardianship, if known; and
(4) whether the guardian has considered alternatives. (Added 1979, No. 76, § 15; amended 1985, No. 144 (Adj. Sess.), § 160; 1985, No. 151 (Adj. Sess.), § 14; 2005, No. 198 (Adj. Sess.), § 13, eff. May 30, 2006; 2007, No. 186 (Adj. Sess.), § 1.)
§ 3074. Commitment, sterilization, involuntary treatment, and involuntary medication
Nothing in this chapter shall give the guardian of a person authority to:
(1) place that person in a State school or hospital except pursuant to 18 V.S.A. § 7601 et seq. or 18 V.S.A. § 8801 et seq.
(2) consent to an involuntary treatment or medication petition pursuant to 18 V.S.A. chapter 181.
(3) consent to sterilization or to a petition for involuntary sterilization pursuant to 18 V.S.A. chapter 204.
(4) consent to a petition for custody, care, or habilitation filed pursuant to 18 V.S.A. chapter 206. (Added 1979, No. 76, § 15; amended 2007, No. 186 (Adj. Sess.), § 1.)
§ 3075. Consent for medical or dental treatment
(a) 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) 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 18 V.S.A. § 9718, 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 18 V.S.A. chapter 231.
(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.
(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 Division of the Superior 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.
(D) Unless the guardian is acting pursuant to an advance directive, before consenting to a do-not-resuscitate order or clinician order for life-sustaining treatment, as defined in 18 V.S.A. § 9701(6), unless a clinician as defined in 18 V.S.A. § 9701(5) 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 or clinician order for life-sustaining treatment, 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 18 V.S.A. chapter 181 shall be the exclusive mechanism to obtain approval for administration of nonemergency involuntary psychiatric medication to a person under guardianship. (Added 1979, No. 76, § 15; 2007, No. 186 (Adj. Sess.), § 1; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2013, No. 127 (Adj. Sess.), § 3, eff. May 10, 2014.)
§ 3076. Annual reports; final accounting; fees
(a) The guardian shall file an annual report with the appointing court within 30 days of the anniversary date of 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 income and resources pursuant to subdivision 3069(c)(4) of this title;
(2) a report on the progress and condition of the person under guardianship, including 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 income and resources pursuant to subdivision 3069(c)(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 person under guardianship until the annual reports or final accounting required by this section has been filed with the court.
(2) The guardian may at any time apply by motion to the Probate Division of the Superior 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. (Added 1979, No. 76, § 15; amended 2007, No. 186 (Adj. Sess.), § 1; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 3077. Termination and modification of guardianship
(a) A person under guardianship or any person interested in the welfare of the 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 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 any current or past expressed preferences of the person under guardianship to have an alternative person appointed as guardian.
(b) 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 Division of the Superior Court. (Added 1979, No. 76, § 15; amended 1985, No. 144 (adj. Sess.), § 161; 2007, No. 186 (Adj. Sess.), § 1; 2009, No. 3, § 12a, eff. Sept. 1, 2009; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 3078. Annual notice to person in need of guardianship
The appointing court shall send an annual notice to each person under guardianship and the counsel of record of each person under guardianship, advising the 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 interests of the person under guardianship to send the accountings, reports, and other information to counsel only. (Added 1979, No. 76, § 15; amended 1991, No. 38, § 3; 2007, No. 186 (Adj. Sess.), § 1.)
§ 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 person under guardianship, his or her counsel of record, and a near relative of the person under guardianship, if known, advising them of the 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 person under guardianship pursuant to section 3067 of this title. (Added 1979, No. 76, § 15; amended 2007, No. 186 (Adj. Sess.), § 1.)
§ 3080. Appeals
Orders of the court issued pursuant to the provisions of this subchapter may be appealed in such manner as provided in 12 V.S.A. § 2551 et seq. 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. (Added 1979, No. 76, § 15.)
§ 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 Division of the Superior Court may appoint an emergency temporary guardian prior to the final hearing and decision on the petition, subject to the requirements of this section.
(b) 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) 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 14 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 14 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. (Added 1981, No. 101; amended 1985, No. 144 (Adj. Sess.), § 162; 2007, No. 186 (Adj. Sess.), § 1; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 11, § 36.)
- Subchapter 013: PUBLIC GUARDIAN
§ 3091. Office of Public Guardian established
(a) An Office of Public Guardian is established within the Department of Disabilities, Aging, and Independent Living for the purpose of making guardianship services available to mentally disabled persons 60 years of age or older for whom the Probate Division of the Superior Court is unable to appoint a guardian from the private sector.
(b) The Commissioner of the Department of Disabilities, Aging, and Independent Living shall employ persons as public guardians to act as designees of the Office and to carry out the duties of the Office of Public Guardian. Public guardians shall be available for appointment in each of the planning and service areas served by the area agencies on aging.
(c) The Commissioner of the Department of Disabilities, Aging, and Independent Living may adopt rules necessary to accomplish the purposes of this subchapter including standards relating to the maximum number of appointments that may be accepted by the Office. (Added 1987, No. 239 (Adj. Sess.), § 1; amended 1989, No. 151 (Adj. Sess.), § 1; 1989, No. 219 (Adj. Sess.), § 9(a), (b); 2005, No. 174 (Adj. Sess.), § 25; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 3092. Appointment of the Office of Public Guardian
(a) The Office of Public Guardian may be nominated and appointed to serve as guardian, under subchapter 12 of this chapter, of a person who is 60 years of age or older if the court determines that there is no suitable private guardian qualified and willing to accept the guardianship appointment and the appointment will not result in the Office having more appointments than permitted by rules adopted under section 3091 of this title.
(b) Neither the Office of Public Guardian or its designees may petition for guardianship.
(c) The Office of Public Guardian may combine the bonding requirement under section § 2751 of this title for some or all of its wards by purchasing a bond in an amount equal to or greater than the aggregate sum of the resources of the wards for whom the bond is issued. The amount of this bond shall be adjusted as necessary to reflect fluctuations in the aggregate amount of wards’ resources. (Added 1987, No. 239 (Adj. Sess.), § 1; amended 1989, No. 151 (Adj. Sess.), § 2.)
§ 3093. Powers and duties of Public Guardian
In addition to the powers and duties of guardians set forth in subchapter 12 of this chapter, the Office of Public Guardian through its designees shall:
(1) Be considered a person interested in the welfare of the ward for purposes of filing a motion under section 3077 of this title for termination or modification of guardianship.
(2) Visit the facility in which the ward is to be placed if it is proposed that the ward be placed outside his or her home.
(3) Monitor the ward and the ward’s care and progress on a continuing basis. Monitoring shall, at a minimum, consist of quarterly personal contact with the ward. The Office of Public Guardian shall maintain a written record of each visit with a ward. A copy of this record shall be filed with the Probate Division of the Superior Court as part of the annual report required under section 3076 of this title. The Office, through its designees, shall maintain periodic contact with all individuals and agencies, public or private, providing care or related services to the ward. (Added 1987, No. 239 (Adj. Sess.), § 1; amended 1989, No. 151 (Adj. Sess.), § 3; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 3094. Duty to seek private guardian
(a) Once appointed as guardian, the Office of Public Guardian shall make a reasonable effort to locate a suitable guardian for the ward from the private sector. Annually, the Office of Public Guardian shall file a report with the Probate Division of the Superior Court describing its efforts to locate a private guardian for the ward.
(b) Upon location of a suitable private guardian, the Office of Public Guardian shall file a motion with the Probate Division of the Superior Court for termination or modification of the guardianship. Availability of a suitable private guardian shall be deemed a change in the suitability of the Office of Public Guardian for carrying out its powers and duties under section 3077(a)(5) of this title. (Added 1987, No. 239 (Adj. Sess.), § 1; amended 1989, No. 151 (Adj. Sess.), § 4; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 3095. Statistics to be maintained
The Office of Public Guardian shall maintain annual statistics concerning the public guardianship program. The statistics shall include at least the following:
(1) The number of wards for which the Office of Public Guardian was appointed during the year for each planning service area served by the area agencies on aging.
(2) The dates on which the Office was appointed by the Probate Division of the Superior Court during the year.
(3) The number of guardianships carried over from the preceding year.
(4) The date of termination of each guardianship terminated during the period.
(5) The disposition of each guardianship terminated. (Added 1987, No. 239 (Adj. Sess.), § 1; amended 1989, No. 151 (Adj. Sess.), § 5; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)
§ 3096. Office of Public Guardian to offer assistance
(a) The Office of Public Guardian may provide assistance to private guardians:
(1) To help them understand the disabilities of the person under guardianship.
(2) To help them foster increased independence on the part of the person under guardianship.
(3) With the preparation and revision of guardianship plans and reports.
(4) On ways to secure rights, benefits, and services to which the persons under guardianship are entitled.
(b) The Office shall:
(1) Develop public education programs on guardianship and alternatives to guardianship.
(2) Encourage individuals in the private sector to serve as guardians.
(3) Prepare and make available, at no charge, a booklet which describes the duties of a guardian. (Added 1987, No. 239 (Adj. Sess.), § 1; amended 1989, No. 151 (Adj. Sess.), § 6; 2013, No. 96 (Adj. Sess.), § 65.)
- Subchapter 014: VULNERABLE NONCITIZEN CHILDREN
§ 3098. Vulnerable noncitizen children
(a) Definitions. As used in this subchapter:
(1) “Child” or “children” means an unmarried individual or individuals who have not yet attained 21 years of age and who are not a U.S. citizen or citizens.
(2) “Court” means any court that has jurisdiction over an unmarried individual or individuals who have not yet attained 21 years of age and who are not a U.S. citizen or citizens, including the Probate Division and the Family Division of the Superior Court.
(3) “Dependent on the court” means subject to the jurisdiction of a court competent to make decisions concerning the protection, well-being, care, and custody of a child for findings, orders, or referrals to support the health, safety, and welfare of a child or to remedy the effects on a child of abuse, abandonment, or other similar circumstances.
(4) “Noncitizen” means any person who is not a U.S. citizen.
(5) “Similar circumstances” means a condition or conditions that have an effect on a child comparable to abuse, neglect, or abandonment, including the death of a parent.
(6) “Vulnerable” means there is reasonable cause to suspect that a child’s health, safety, or welfare is in jeopardy due to abuse, neglect, abandonment, or similar circumstances and that return to the child’s or the child’s parent’s country of origin or country of last habitual residence would not be in the best interests of the child.
(b) Jurisdiction. A court reviewing a petition under this section shall have jurisdiction under Vermont law to make judicial determinations regarding the custody and care of children.
(c)(1) Procedure for petition. A vulnerable noncitizen child, or a person interested in the welfare of a vulnerable noncitizen child, may petition the court for special findings to protect the child and obtain relief from the underlying abandonment, abuse, neglect, or similar circumstances. The court shall review the petition, including any supporting affidavits and other evidence presented, and issue findings of fact that determine whether the vulnerable noncitizen child:
(A) Is a dependent of the court or legally committed to or placed under the custody of a State agency or department or an individual or entity appointed by the court. The court shall indicate the date on which the dependency, commitment, or custody was ordered.
(B) Has suffered from abuse, neglect, abandonment, or similar circumstances.
(C) May not be viably reunified with one or both parents due to abuse, neglect, abandonment, or a similar circumstance.
(D) That it is not in the best interests of the child to be returned to the child’s or his or her parent’s previous country of nationality or country of last habitual residence.
(2) Additional findings. If requested by a party, the court may make additional findings that are supported by evidence and Vermont law.
(3) Health, safety, and welfare considerations. The health, safety, and welfare of the child must be of paramount concern when the court considers the best interests of the child. In making the determination whether it is in the best interests of the child to be returned to the child’s or child’s parent’s previous country of nationality or country of last habitual residence, the court shall consider whether present or past living conditions will adversely affect the child’s physical, mental, or emotional health.
(4) Guardianships. For purposes of this section, the term child or minor shall include a person who is less than 21 years of age and who consents to the appointment or continuation of a guardian after 18 years of age.
(d) Notice. If the identity or location of the vulnerable noncitizen child’s parents is unknown or if the parents reside outside the United States, the court may serve notice using any alternative method of service the court determines is appropriate or waive service.
(e) Expeditious adjudication. When it is in the best interests of the vulnerable noncitizen child, a court shall hear, adjudicate, and issue findings of fact on any petition for special findings under this section as soon as it is administratively feasible and prior to the vulnerable noncitizen child attaining 21 years of age.
(f) Referral for services or protection. A vulnerable noncitizen child who is the subject of a petition for special findings under this section may be referred for psychiatric, psychological, educational, occupational, medical, dental, or social services or for protection against human trafficking or domestic violence; provided, however, that a child’s participation in any referred service is voluntary.
(g) Additional available remedies under Vermont law; similar findings of fact.
(1) This section shall not limit a vulnerable noncitizen child from petitioning for special findings for a petition under any other provision of law or from any other rights and remedies available to the child under any other provision of law.
(2) This section shall not limit the court from issuing similar findings of fact to those described in this section in any other proceeding concerning the vulnerable noncitizen child.
(h) Construction. This section shall be liberally construed to its legislative purpose.
(i) Confidentiality. In any judicial proceedings in response to a request that the court make the findings necessary to support a petition for classification as a special immigrant juvenile, information regarding the child’s immigration status, nationality, or place of birth that is not otherwise protected by State laws shall remain confidential. This information shall also be exempt from public inspection and copying under the Public Records Act and shall be kept confidential, except that the information shall be available for inspection by the court, the child who is the subject of the proceeding, the parties, the attorneys for the parties, the child’s counsel, and the child’s guardian. (Added 2019, No. 167 (Adj. Sess.), § 29, eff. October 7, 2020; amended 2021, No. 98 (Adj. Sess.), § 1, eff. July 1, 2022; 2023, No. 46, § 13, eff. June 5, 2023.)
