The Vermont Statutes Online

Title 18: Health

Chapter 215: Guardianship Services for People with Developmental Disabilities

• § 9301. Policy

  It is the policy of the State of Vermont to ensure that citizens with developmental disabilities receive such protection and assistance as is necessary to allow them to live safely within the communities of this State. In furtherance of this policy, this chapter is enacted to permit the supervision of those individuals who are unable to provide for their own needs on account of developmental disabilities and to protect such persons from violations of their human and civil rights. It is the purpose of this chapter to limit the State’s guardianship of people with developmental disabilities who are living in the community to the extent necessary to ensure their safety and well-being. (Added 1977, No. 192 (Adj. Sess.), § 1; amended 2001, No. 43, § 1; 2023, No. 6, § 219, eff. July 1, 2023.)

• § 9302. Definitions

  As used in this chapter:

  (1) “Person with developmental disabilities” means:

  (A) a person with a severe, chronic disability that must arise before the person reaches the age of 18, and results in:

  (i) intellectual disability, autism, or pervasive developmental disorder; and

  (ii) deficits in adaptive behavior at least two standard deviations below the mean for a normative comparative comparison group; or

  (B) a person with a developmental disability who was receiving services on July 1, 1996.

  (2) “Commissioner” means the Commissioner of Disabilities, Aging, and Independent Living.

  (3) “Near relative” means a spouse, parent, step parent, brother, sister, or grandparent.

  (4) “Interested person” means a responsible adult who has a direct interest in a person with developmental disabilities and includes the person with developmental disabilities, a near relative, guardian, public official, social worker, or clergy.

  (5) “Person in need of guardianship” means a person who:

  (A) has developmental disabilities within the meaning of this chapter;

  (B) is unable to personally exercise some or all of the powers and responsibilities described in section 9310 of this title; and

  (C) is not receiving the active assistance of a responsible adult to carry out the powers and responsibilities described in section 9310 of this title.

  (6) “Guardianship” means the legal status of a person with developmental disabilities who is subject to the Commissioner’s exercise of some or all of the powers listed in section 9310 of this title.

  (7) [Repealed.]

  (8) “Qualified developmental disabilities professional” means a psychologist, physician, registered nurse, educator, or social worker with specialized training or at least one year of experience in working with people with developmental disabilities.

  (9) “Respondent” means a person who is the subject of a petition filed pursuant to section 9305 of this title.

  (10) “Department” means the Department of Disabilities, Aging, and Independent Living. (Added 1977, No. 192 (Adj. Sess.), § 1; amended 1989, No. 187 (Adj. Sess.), § 5; 1995, No. 174 (Adj. Sess.), § 3; 2001, No. 43, § 1; 2005, No. 174 (Adj. Sess.), § 49; 2013, No. 96 (Adj. Sess.), § 116.)

• § 9303. Jurisdiction and venue

  (a) The Family Division of the Superior Court shall have exclusive jurisdiction over all proceedings brought under the authority of this chapter. Proceedings under this chapter shall be commenced in the Family Division of the Superior Court for the unit in which the person with developmental disabilities is residing.

  (b)(1) The Probate Division of the Superior Court shall have concurrent jurisdiction to appoint the Commissioner to serve as a temporary guardian for a person in need of guardianship when:

  (A) a petition has been filed pursuant to 14 V.S.A. § 3063;

  (B) the Probate Division of the Superior Court finds that the respondent is a person in need of guardianship as defined in subdivision 9302(5) of this title; and

  (C) no suitable private guardian can be located.

  (2) Within 60 days after appointment as a temporary guardian, the Commissioner shall file an application in the Family Division of the Superior Court for appointment under this chapter and for modification or termination of the Probate Division order. (Added 1977, No. 192 (Adj. Sess.), § 1; amended 2001, No. 43, § 1; 2009, No. 154 (Adj. Sess.), § 154; 2009, No. 154 (Adj. Sess.), § 154a, eff. Feb. 1, 2011.)

  NotesHistory Editor’s note—2018.

  Section set out to correct an error in the historical citation.

• § 9304. Eligibility for guardianship of the person

  Guardianship may be provided to any person with developmental disabilities who:

  (1) is at least 18 years of age; and

  (2) is in need of supervision and protection for the person’s own welfare or the public welfare. (Added 1977, No. 192 (Adj. Sess.), § 1; amended 2001, No. 43, § 1.)

• § 9305. Petition for guardianship

  Any interested person with knowledge of the facts alleged may request the State’s Attorney having jurisdiction to file a petition with the Family Division of the Superior Court alleging that person is developmentally disabled and in need of guardianship. The State’s Attorney shall file the petition unless it clearly appears that the petition will be insufficient to support an action under this chapter. The petition shall set forth:

  (1) The name, address, and telephone number of the interested person who requested the filing of the petition, and the nature of his or her interest in the person alleged to have developmental disabilities;

  (2) The name, address, telephone number, and age of the respondent and the name, address, and telephone number of any near relative of the respondent and the name of any guardian or person holding a power of attorney of the person;

  (3) The reasons and the supporting facts why guardianship is needed;

  (4) The petition shall be limited to information that is relevant to the respondent’s need for guardianship. (Added 1977, No. 192 (Adj. Sess.), § 1; amended 2001, No. 43, § 1; 2009, No. 154 (Adj. Sess.), § 238.)

• § 9306. Comprehensive evaluation

  (a) The Family Division of the Superior Court shall mail a copy of any petition filed pursuant to section 9305 of this title to the Commissioner, who shall promptly arrange for the preparation of a comprehensive evaluation of the respondent. The evaluation shall include information regarding the respondent’s developmental and social functioning that is relevant to the person’s need for guardianship. The evaluation shall contain recommendations and supporting data regarding the ability of the respondent to function in society without guardianship and shall specify those activities for which the respondent needs supervision and protection and shall include information regarding the availability of one or more responsible adults to assist the individual in decision-making.

  (b) The evaluation shall be prepared by a qualified developmental disabilities professional. The evaluation shall be completed within 40 days after the court’s service of the petition upon the Commissioner unless the time period is extended by the court for cause. The Commissioner shall send the request for evaluation to the evaluator at least 30 days before it is due. The Commissioner shall provide for reimbursement of the costs of the evaluation.

  (c) The Department shall send a copy of the evaluation to the court, the State’s Attorney, the director of guardianship services, and to counsel for the respondent. The evaluation is a confidential document and shall not be further disclosed by the court and the parties without the consent of the respondent or a person authorized to act on behalf of the respondent, except that the Department shall release the evaluation to a developmental services agency, if necessary, for the purpose of obtaining or improving services to the person.

  (d) The evaluation shall not be used as evidence in any other judicial proceeding without the consent of the respondent or the respondent’s guardian or upon order of the court. (Added 1977, No. 192 (Adj. Sess.), § 1; amended 2001, No. 43, § 1; 2009, No. 154 (Adj. Sess.), § 238; 2023, No. 6, § 220, eff. July 1, 2023.)

• § 9307. Notice of petition and hearing

  Within five days after filing the petition, the court shall fix a time and place for hearing and shall mail a copy of the petition and notice of hearing to the respondent; the respondent’s counsel; the guardian for the respondent, if any; the interested person who requested the filing of the petition; the Commissioner; the State’s Attorney; and such other persons as the court determines. The notice of hearing shall be mailed to the respondent’s near relatives. The hearing shall be held not fewer than 20 nor more than 30 days after the filing of the evaluation with the court. The hearing may be continued for good cause shown for not more than 15 additional days. (Added 1977, No. 192 (Adj. Sess.), § 1; amended 2001, No. 43, § 1; 2023, No. 6, § 221, eff. July 1, 2023.)

• § 9308. Appointment of counsel

  Upon the filing of the petition, the court shall appoint counsel for the respondent, and shall notify the respondent of the name, address, and telephone number of the appointed counsel. Compensation shall be paid by the Department to counsel assigned by the court, any rule or law to the contrary notwithstanding. Counsel shall receive a copy of the petition and comprehensive evaluation and such other documents as may be received or issued by the court. Counsel shall consult with the respondent prior to the hearing and, to the maximum extent possible, explain to the respondent the meaning of the proceedings and of all relevant documents. (Added 1977, No. 192 (Adj. Sess.), § 1; amended 1979, No. 167 (Adj. Sess.), § 2; 1989, No. 187 (Adj. Sess.), § 5; 1995, No. 174 (Adj. Sess.), § 3; 2001, No. 43, § 1.)

• § 9309. Hearing and appeal

  (a) The respondent, the State’s Attorney, and all other persons to whom notice has been given pursuant to section 9307 of this title may attend the hearing and testify. The court may in its discretion receive the testimony of any other person. The respondent and State’s Attorney may subpoena, present, and cross-examine witnesses, including those who prepared the comprehensive evaluation. The court may exclude any person not necessary for the conduct of the hearing. The State’s Attorney shall consult with the interested person who requested the filing of the petition regarding the facts of the case.

  (b) The hearing shall be conducted in a manner consistent with orderly procedure and in a physical setting not likely to have a harmful effect on the mental or physical health of the respondent. In all proceedings, the court shall have taken and preserved an accurate record of the proceedings. The court shall not be bound by the evidence contained in the comprehensive 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. The general public shall be excluded from hearings under this chapter, and only the parties, their counsel, the interested person who requested the filing of the petition, witnesses, and other persons accompanying a party for his or her assistance, and such other persons as the court finds to have a proper interest in the case or in the work of the court may be admitted by the court. The proceedings of the hearing shall be confidential, and a record of the proceedings may not be released without the consent of the respondent or the respondent’s guardian.

  (c) The State’s Attorney shall appear and present evidence in support of the petition. The person who requested the filing of the petition may be represented by private counsel in any proceedings brought under this chapter.

  (d) 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, as defined in subdivision 9302(5) of this title, it shall dismiss the petition and seal the records of the proceedings.

  (e) The court shall enter judgment specifying the powers of the Commissioner pursuant to section 9310 of this title 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:

  (1) a person with developmental disabilities;

  (2) at least 18 years of age; and

  (3) [Repealed.]

  (4) in need of guardianship for his or her own welfare or the public welfare.

  (f) The court may grant or restrict the powers of guardianship to the Commissioner. An appointment of the Commissioner to provide guardianship shall not constitute a judicial finding that the person is legally incompetent for all purposes but shall only restrict the person’s rights with respect to those powers expressly granted to the Commissioner.

  (g) Any party to the proceeding before the Family Division of the Superior Court may appeal the court’s decision. The appeal shall be taken in such manner as the Supreme Court may by rule provide for appeals from the Family Division of the Superior Court. (Added 1977, No. 192 (Adj. Sess.), § 1; amended 2001, No. 43, § 1; 2009, No. 154 (Adj. Sess.), § 238; 2023, No. 6, § 222, eff. July 1, 2023.)

• § 9310. Powers of Commissioner as guardian

  (a) The court may appoint the Commissioner guardian of the respondent if it determines that a guardian is needed to supervise and protect the respondent through the exercise of any or all of the following powers:

  (1) The power to exercise general supervision over the respondent. This includes choosing or changing the residence, care, habilitation, education, and employment of the respondent and the power to approve or withhold approval of the sale or encumbrance of real property of the respondent;

  (2) The power to approve or withhold approval of any contract, by or in the name of the respondent;

  (3) The power to obtain legal advice and to commence or defend against judicial actions in the name of the respondent;

  (4) The power to seek, obtain, and give consent to initiation and continuation of medical and dental treatment that best promotes the health, comfort, and well-being of the respondent, or to withhold consent for initiation or continuation of treatment that does not promote the health or well-being of the respondent. In exercising this power, the Commissioner shall be guided by the wishes and preferences of the individual. Any decision to withhold or abate medical treatment for an irreversible or terminal condition shall be reviewed by the Department’s ethics committee. Nothing in this chapter shall be interpreted as giving the Commissioner authority to consent to sterilization, lobotomy, involuntary administration of psychotropic medications, surgery of the brain for the purpose of modifying behavior, or electroconvulsive therapy for the respondent.

  (b) Nothing in this chapter shall give the Commissioner authority to place a person with developmental disabilities in a State hospital except pursuant to chapter 181 of this title.

  (c) The Commissioner shall exercise his or her supervisory authority over the respondent in a manner that is least restrictive of the person’s personal freedom consistent with the respondent’s need for supervision and protection. (Added 1977, No. 192 (Adj. Sess.), § 1; amended 2001, No. 43, § 1.)

• §§ 9311, 9312. Repealed. 2001, No. 43, § 1.

• § 9313. Duties of Commissioner when providing guardianship services

  (a) When providing guardianship services to a person with developmental disabilities, the Commissioner shall maintain close contact with the person with developmental disabilities, no matter where the person is living in this State, and shall permit and encourage maximum self-reliance on the part of the person with developmental disabilities under his or her protection. The Commissioner shall permit and encourage involvement by the person with developmental disabilities, and family members, and other individuals of the person’s choice in planning and decision-making.

  (b) In addition to the supervisory powers vested in the Commissioner by the court pursuant to section 9310 of this title, the Commissioner shall assist any person who is under guardianship to obtain those services to which the person is lawfully entitled and that the person needs in order to maximize opportunities for social and financial independence. Those services include:

  (1) Education services for a person with developmental disabilities who is of school age;

  (2) Residential services for any person with developmental disabilities who lacks adequate or appropriate housing or residential supervision;

  (3) Medical and dental services as needed;

  (4) Therapeutic and habilitative services, adult education, vocational rehabilitation, or other appropriate programs or services for any person with developmental disabilities who is in need of such training or services;

  (5) Counseling and social services;

  (6) Counseling and assistance in the use of and handling of money. (Added 1977, No. 192 (Adj. Sess.), § 1; amended 2001, No. 43, § 1.)

• § 9314. Annual review

  (a) The Commissioner shall prepare an annual review of the social adjustment and progress of every person who is receiving guardianship services under this chapter. A copy of the review shall be kept on file by the Commissioner and shall be made available upon the request of the person with developmental disabilities and such other people as receive the written permission of the person or the Commissioner.

  (b) The Commissioner shall annually review the legal status of each person receiving services under this chapter. If the Commissioner determines that the annual review of social adjustment and progress warrants a modification or termination of guardianship services for the person, the Commissioner shall petition the Family Division of the Superior Court pursuant to section 9316 of this title for the appropriate relief. (Added 1977, No. 192 (Adj. Sess.), § 1; amended 2001, No. 43, § 1; 2009, No. 154 (Adj. Sess.), § 238.)

• § 9315. Review of Commissioner’s decision

  A person who is receiving services under this chapter may appeal a decision of the Commissioner in accordance with 3 V.S.A. § 3091 or by petition to the Family Division of the Superior Court. (Added 1977, No. 192 (Adj. Sess.), § 1; amended 2001, No. 43, § 1; 2009, No. 154 (Adj. Sess.), § 238.)

• § 9316. Modification or termination of guardianship services

  (a) The Commissioner shall provide guardianship services in accordance with the order of the Probate Division or Family Division of the Superior Court until termination or modification thereof by the court.

  (b) The Commissioner, the person with developmental disabilities, or any interested person may petition the appointing court, if it exists, or the Superior Court for the unit where the person resides to modify or terminate the judgment pursuant to which the Commissioner is providing guardianship. The petitioner, or the Commissioner as petitioner, and the respondent shall be the parties to an application to modify or terminate guardianship.

  (c) Notice and hearing on the petition shall proceed in the manner set forth in sections 9307-9309 of this title. (Added 1977, No. 192 (Adj. Sess.), § 1; amended 2001, No. 43, § 1; 2009, No. 154 (Adj. Sess.), § 155; 2009, No. 154 (Adj. Sess.), § 155a, eff. Feb. 1, 2011.)

• § 9317. General provision

  The Commissioner may delegate his or her powers and duties under this chapter to staff within the Department, and may adopt, pursuant to 3 V.S.A. chapter 25, rules necessary for the proper and efficient administration of this chapter. (Added 1977, No. 192 (Adj. Sess.), § 1; amended 2001, No. 43, § 1; 2017, No. 113 (Adj. Sess.), § 104.)