-
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) A custodial parent of the child is unavailable to care for the child because the parent
has been subject to an adverse immigration action.
(vii) 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.
(8) “Standby guardianship” means a consensual guardianship agreement between the custodial
parent and their chosen guardian that meets the requirements of section 2626a of this title, in which the custodial parent has been subject to an adverse immigration action
that has rendered the parent unavailable to care for their child.
(9) “Adverse immigration action” means:
(A) arrest or apprehension by any federal law enforcement officer for an alleged violation
of federal immigration law;
(B) arrest, detention, or custody by the Department of Homeland Security, or a federal,
state, or local agency authorized by or acting on behalf of the Department of Homeland
Security, for an alleged violation of federal immigration law;
(C) departure from the United States under an order of removal, deportation, exclusion,
voluntary departure, or expedited removal or a stipulation of voluntary departure;
(D) the denial, revocation, or delay of the issuance of a visa or transportation letter
by the Department of State;
(E) the denial, revocation, or delay of the issuance of a parole document or reentry permit
by the Department of Homeland Security; or
(F) the denial of admission or entry into the United States by the Department of Homeland
Security or other local or state officer acting on behalf of the Department of Homeland
Security. (Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014; amended 2025, No. 31, § 2, eff. May 22, 2025.)
§ 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;
(10) any prior or current court proceedings, child support matters, or parent-child contact
orders involving the child;
(11) whether the petition seeks a standby guardianship and the reasons for the request,
including the adverse immigration action that the custodial parent is subject to;
and
(12) whether the petition is an emergency petition filed pursuant to subdivision 2625(f)(1) of this title.
(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;
(ii) the location of the parent is unknown and cannot be determined with reasonable effort;
or
(iii)(I) the custodial parent is detained as the result of an adverse immigration action; and
(II) the guardian and the custodial parent’s attorney are unable to contact the custodial
parent after making reasonable efforts.
(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 (b). (Added 2013, No. 170 (Adj. Sess.), § 1, eff. Sept. 1, 2014; amended 2025, No. 31, § 3, eff. May 22, 2025.)
§ 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(b)(1) of this title.
(b) The child shall attend the hearing if the child 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 the child 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, or by the custodial parent’s attorney in the case of a standby guardianship
petition filed pursuant to section 2626a of this title, if the court finds that:
(A)(i) both parents are deceased or medically incapacitated; or
(ii) in the case of a standby guardianship petition filed pursuant to section 2626a of this title, the custodial parent has been subject to an adverse immigration action that renders
the parent unavailable to care for the child; 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; 2025, No. 31, § 4, eff. May 22, 2025.)
§ 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.)
§ 2626a. Consensual standby guardianship
(a)(1) If the petition requests a consensual standby guardianship, the petition shall include
or be accompanied by a consent signed by the custodial parent attesting that the custodial
parent understands the nature of the standby guardianship and knowingly and voluntarily
consents to the standby guardianship.
(2) The consent required by this subsection shall be on a form approved by the Court Administrator.
(b)(1) The court shall schedule a hearing on the petition within 14 days. The custodial parent
shall be permitted to appear at and participate in the hearing remotely.
(2) On or before the date of the hearing, the parties shall file an agreement between
the proposed guardian and the custodial parents. The agreement shall provide:
(A) that the parties are creating a standby guardianship that is effective only if the
custodial parent has been subject to an adverse immigration action that renders the
custodial parent unavailable to care for the child;
(B) the responsibilities of the guardian;
(C) the responsibilities of the parents;
(D) the expected duration of the guardianship, if known;
(E) parent-child contact and parental involvement in decision making; and
(F) that the guardianship shall presumptively terminate if the custodial parent is released
from custody and reunited with the child.
(3) Any party may notify the court that the guardianship is presumptively terminated pursuant
to subdivision (2)(F) of this subsection.
(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 because the parent has been subject to an adverse immigration action that renders
the parent unavailable to care for the child;
(2) the child’s custodial parents knowingly and voluntarily consented to the standby guardianship;
(3) the guardian or the custodial parent’s attorney made reasonable efforts to notify
the parent of the proceeding;
(4) the agreement is voluntary;
(5) the proposed guardian is suitable; and
(6) the guardianship is in the best interests of the child.
(e) There shall be a rebuttable presumption that the guardianship is in the best interests
of the child if:
(1) the custodial parent has been subject to an adverse immigration action and is unavailable
to care for their child;
(2) all parties consented to the guardianship; and
(3) the custodial parent is represented by an attorney.
(f) 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 within 45 days after the petition was filed, unless the court extends the time for
issuing the order for good cause shown. 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 2025, No. 31, § 5, eff. May 22, 2025.)
§ 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),
2626a(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; amended 2025, No. 31, § 6, eff. May 22, 2025.)
§ 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 the child’s 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
the parent’s 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 the child’s 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 the guardian’s 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.
(c) In the case of a standby guardianship petition filed pursuant to section 2626a of this title, the guardian shall provide status reports to the custodial parent at the parent’s
last known email address and to the custodial parent’s attorney at the attorney’s
last known address. (Added 2013, No. 170 (Adj. Sess.), § 1; amended 2025, No. 31, § 7, eff. May 22, 2025.)
§ 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 or a standby guardianship established under section 2626a 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. In the case of a standby guardianship established under section 2626a of this title, the court may, for good cause shown, accept filings that do not meet the format
and signing requirements for the motion under Vermont Rules of Probate Procedure 10
and 11.
(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. In the case of a standby guardianship established under section 2626a of this title, the custodial parent shall be permitted to appear at and participate in the hearing
remotely.
(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; amended 2025, No. 31, § 8, eff. May 22, 2025.)
§ 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 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)(1) 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.
(2) If a motion to withdraw the petition is made before the final hearing, the court 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; 2025, No. 64, § 13, eff. June 12, 2025.)
§ 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.)