§ 9718. Petition for review by the Probate Division of the Superior Court
(a) A petition may be filed in the Probate Division of the Superior Court under this section
by:
(1) a principal, guardian, agent, ombudsman, a mental health patient representative, or
interested individual other than one identified in an advance directive, pursuant
to subdivision 9702(a)(10) of this title, as not authorized to bring an action under this section;
(2) a social worker or health care provider employed by or directly associated with the
health care provider, health care facility, or residential care facility providing
care to the principal;
(3) the Defender General if the principal is in the custody of the Department of Corrections;
(4) a representative of the State-designated protection and advocacy system if the principal
is in the custody of the Department of Mental Health;
(5) an individual or entity identified in an advance directive, pursuant to subdivision 9702(a)(10) of this title, as authorized to bring an action under this section; or
(6) Adult Protective Services, for the purposes of reviewing the authority of the agent
under 33 V.S.A. § 6907(b)(3) to refuse protective services under 33 V.S.A. § 6907(b)(2)(C).
(b) A petition filed in the Probate Division of the Superior Court under this section
shall include a supporting affidavit and may request:
(1) that the advance directive be revoked on the grounds that the principal lacked capacity
to understand the nature of the advance directive, was under duress, or was the subject
of fraud or undue influence when the advance directive was executed, except that,
if the principal is deceased, this subdivision shall not apply to any part of an advanced
directive making an anatomical gift;
(2) that the suspension or revocation of the advance directive be voided and the advance
directive be reinstated on the grounds that at the time of the suspension or revocation,
the principal was under duress or was the subject of fraud or undue influence;
(3) a declaratory judgment concerning the construction of an advance directive or the
rights, legal status, or other legal relationship of the parties with respect to an
advance directive; or
(4) an order for disposition of the remains of the principal.
(c) A principal, agent, or interested individual may file an petition in the Probate Division
of the Superior Court with a supporting affidavit challenging a determination that
the condition specified pursuant to subdivision 9702(a)(3) of this title is met.
(d) The principal or an agent may file an petition in the Probate Division of the Superior
Court challenging a determination under subdivision 9706(a)(1) or subsection (c) of
this title if:
(1) the petitioner provides notice to any agent, the principal, an interested individual,
or a person entitled to notification of a determination of capacity under subdivision
9706(a)(1) or subsection (c) of this title prior to filing;
(2) the petition includes a supporting affidavit setting forth specific facts challenging
a capacity determination under subdivision 9706(a)(1) or subsection (c) of this title;
(3)(A) prior to filing, the petitioner obtains a determination from a clinician that the
principal’s capacity is not as the principal’s clinician has determined; or
(B) if the petitioner is unable to obtain the determination required by subdivision (A)
of this subdivision (3), the petitioner includes in the supporting affidavit the facts
regarding the attempts to obtain a second determination of capacity and supporting
the challenge to the capacity determination by the petitioner’s clinician; and
(4) the petitioner notifies the principal’s clinician that an petition challenging the
determination of capacity has been filed and provides the supporting determination
or affidavit to the principal’s clinician.
(e) The Probate Division of the Superior Court may limit the frequency of a capacity redetermination
pursuant to subsection (d) of this section upon a finding that there have been multiple
requests for redetermination, and that those requests have been frivolous or requested
in bad faith.
(f) The agent, if any, shall have the opportunity to appear in any action brought under
subdivision (b)(1), (2), or (3) of this section or subsection (c) or (d) of this section.
(g) A petitioner filing under subsection (b), (c), or (d) of this section shall, if doing
so would be consistent with any obligations the petitioner has under HIPAA, provide
notice to the following persons if known: the principal, an agent, a guardian, and
interested individuals. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; amended 2005, No. 215 (Adj. Sess.), § 338; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2013, No. 192 (Adj. Sess.), § 21; 2015, No. 23, § 52; 2017, No. 121 (Adj. Sess.), § 4a, eff. May 3, 2018; 2023, No. 81, § 3, eff. July 1, 2023.)