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H.26 1
Introduced by Representatives Donahue of Northfield and Howard of Rutland 2
City 3
Referred to Committee on 4
Date: 5
Subject: Guardianship proceedings; adult guardianship 6
Statement of purpose of bill as introduced: This bill proposes to combine 7
jurisdiction over adult guardianship proceedings into a single division of the 8
Superior Court, the Probate Division, which would establish rules for the 9
proceedings with a more unified set of procedural protections and options. 10
An act relating to guardianship proceedings 11
It is hereby enacted by the General Assembly of the State of Vermont: 12
Sec. 1. APPLICATION AND CONSTRUCTION 13
In applying and construing this act, consideration shall be given to the 14
following: 15
(1) Prior to 1978, Vermont statute provided for adult guardianship only 16
through its probate court with minimal procedural protections. See Linda O. 17
Smiddy, “Guardianship for the Adult: A Need for Due Process Protections in 18
Vermont,” 4 Vt. L. Rev. 95 (Spring 1979). 19 BILL AS INTRODUCED H.26
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(2)(A) The Vermont General Assembly passed Act 192 in 1978, which 1
provided the district court with jurisdiction to appoint the Commissioner of 2
Mental Health as guardian for adults who were not institutionalized yet were 3
determined by the court to be “mentally retarded” and in need of protection 4
and supervision. That act provided for significant improvements in 5
guardianship procedural protections not available in the probate court system 6
at the time, including: 7
(i) a formal definition of the disabling condition upon which 8
guardianship jurisdiction could be founded and the requirement that there be a 9
comprehensive evaluation by a qualified mental retardation professional; 10
(ii) the right to representation by an attorney, at public expense if 11
needed; and 12
(iii) the necessity of a hearing, along with the opportunity to 13
present evidence and the right to subpoena and to cross-examine witnesses. 14
(B) Act 192 guardianship jurisdiction was subsequently assigned to 15
the Family Division of the Superior Court, with the Commissioner of 16
Disabilities, Aging, and Independent Living as appointed guardian. The 17
probate court is now the Probate Division of the Superior Court, and the 18
archaic and offensive term “mentally retarded” is no longer in use. 19
(3) In 1979, the General Assembly added subchapter 12 to the probate 20
court guardianship provisions in 14 V.S.A. chapter 111. Subchapter 12 21 BILL AS INTRODUCED H.26
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increased the procedural protections in the probate court so significantly that 1
they outstripped the protections available in what is now the Family Division. 2
In 2010 the differences between the two systems increased even further when 3
the General Assembly provided for voluntary guardianship in the Probate 4
Division without regard to an individual’s disability type. Voluntary 5
guardianship has never been an option in the Family Division. 6
(4) With regard to the Common Benefits Clause of the Vermont 7
Constitution, the General Assembly observed a generation ago that Vermont’s 8
history as an independent republic and as a State is one of equal treatment and 9
respect for all Vermonters. Presently, however, there are approximately 600 10
adults with disabilities for whom the State has been made guardian in the 11
Family Division despite deficiencies in how they are treated under the law 12
compared to how they would be treated in the Probate Division. These 13
differences include: 14
(A) In the Probate Division, under 14 V.S.A. § 3066, the court “may 15
appoint a guardian ad litem if it finds the respondent or person under 16
guardianship is unable to communicate with or advise counsel.” In the Family 17
Division, there is no provision for the appointment of a guardian ad litem. 18
(B) Appeals from the Probate Division to the Civil Division are de 19
novo, and under 12 V.S.A. § 2553 and Rule 72 of the Vermont Rules of Civil 20
Procedure, there is an available retrial in the Civil Division of disputed factual 21 BILL AS INTRODUCED H.26
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determinations such as mental incapacity. In the Family Division, only a 1
standard appeal with deference to the factual findings below is available. 2
(C) In the Probate Division, under 14 V.S.A. § 3076(a) and (b), the 3
guardian must file an annual report with the court “on the progress and 4
condition of the person under guardianship … [and] the manner in which the 5
guardian carried out [their duties].” In the Family Division, no annual report is 6
required. 7
(D) In the Probate Division, under 14 V.S.A. § 3073, the residential 8
placement of the person under guardianship may only be changed upon an 9
order of the court made after a motion and hearing. In the Family Division, no 10
court permission is required for a change in residential placement of the person 11
under guardianship. 12
(E) In the Probate Division, under 14 V.S.A. § 3078, the court must 13
mail to the person under guardianship and other persons a copy of the annual 14
report and a statement of the person’s right to seek modification or revocation 15
of the guardianship. In the Family Division, there is no such requirement. 16
(F) In the Probate Division, under 14 V.S.A. § 3076(c), the guardian 17
must file a final accounting with the court at the termination of the 18
guardianship. In the Family Division, no final accounting is required. 19 BILL AS INTRODUCED H.26
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(G) In the Probate Division, under 14 V.S.A. § 3067(a), a court order 1
is required for a guardianship evaluation to be conducted. No such order is 2
required in the Family Division. 3
(H) In the Probate Division, under 14 V.S.A. § 3061(1)(B), it must be 4
shown that an alleged incapacity is caused by the purported disability. This is 5
not required in the Family Division. 6
(I) In the Probate Division, under 14 V.S.A. § 3061(2) and (3), the 7
determination that a person is in need of a guardianship must be based upon 8
evidence of recent behavior. This is not required in the Family Division. 9
(J) In the Probate Division, under 14 V.S.A. § 3067(c)(2)(A), the 10
evaluation in connection with whether a person is in need of guardianship must 11
specify aspects of the person’s personal care and financial affairs that the 12
person can manage without supervision or assistance. In the Family Division, 13
this is not required. 14
(K) In the Probate Division, under 14 V.S.A. § 3067(c)(2)(B), the 15
evaluation in connection with whether a person is in need of guardianship must 16
specify aspects of the person’s personal care and financial affairs that the 17
person could manage with the supervision or assistance of support services and 18
benefits. In the Family Division, this is not required. 19
(L) In the Probate Division, under 14 V.S.A. § 3067(c)(2)(D), the 20
evaluation in connection with whether a person is in need of guardianship must 21 BILL AS INTRODUCED H.26
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contain a statement of the programs and services that the guardian should 1
provide. In the Family Division, this is not required. 2
(M) In the Probate Division, under 14 V.S.A. § 3071(c), there is a 3
statutory requirement that “the guardian shall always serve the interests of the 4
person under guardianship and shall bring any potential conflicts of interest to 5
the attention of the court.” In the Family Division, there are no such 6
requirements. 7
(N) The option of voluntary guardianship is available in the Probate 8
Division when an individual is able to understand the nature, extent, and 9
consequences of the proposed guardianship even if the person may otherwise 10
have a disability. This option provides for adult guardianship without the 11
stigma of the person being under a judicial finding of mental incapacity. 12
Voluntary guardianship is not an available option in the Family Division. 13
(O) Because the Probate Division is the court in which individuals 14
without disabilities may have guardianships granted for themselves, the current 15
requirement that guardianship proceedings for certain individuals with 16
developmental disabilities must be held in the Family Division instead of the 17
Probate Division may be at odds with the Common Benefits Clause of the 18
Vermont Constitution. 19 BILL AS INTRODUCED H.26
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Sec. 2. SHORT TITLE 1
This act shall be referred to as “the Adult Guardianship Equity Act” or as 2
“the AGE Act.” 3
Sec. 3. 14 V.S.A. § 3060 is amended to read: 4
§ 3060. POLICY 5
(a) Guardianship shall be utilized only as necessary to promote the well-6
being of the individual and to protect the individual from violations of his or 7
her the individual’s human and civil rights. It shall be designed to encourage 8
the development and maintenance of maximum self-reliance and independence 9
in the individual and only the least restrictive form of guardianship shall be 10
ordered to the extent required by the individual’s actual mental and adaptive 11
limitations. The State of Vermont recognizes the fundamental right of an adult 12
with capacity to determine the extent of health care the individual will receive. 13
(b) A person shall not be subjected to a determination of mental 14
incompetency regarding guardianship if the person would qualify for and agree 15
to the creation of an appropriate voluntary guardianship. 16
(c) Regardless of the form of guardianship applied for, if the proposed 17
person under guardianship qualifies for a voluntary guardianship under section 18
2671 of this title and agrees to the creation of an appropriate voluntary 19
guardianship, then voluntary guardianship shall be deemed the least restrictive 20
form of guardianship under subsection (a) of this section. 21 BILL AS INTRODUCED H.26
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Sec. 4. 14 V.S.A. § 3061 is amended to read: 1
§ 3061. DEFINITIONS 2
The words and phrases used in this subchapter shall be defined as follows 3
As used in this subchapter: 4
(1)(A) “Person in need of guardianship” means a person who: 5
(A)(i) is at least 18 years of age; and 6
(B)(ii) is unable to manage, without the supervision of a guardian, 7
some or all aspects of his or her the person’s personal or financial affairs as a 8
result of: 9
(i)(I) significantly subaverage intellectual functioning which 10
that exists concurrently with deficits in adaptive behavior; or 11
(ii)(II) a physical or mental condition that results in 12
significantly impaired cognitive functioning which that grossly impairs 13
judgment, behavior, or the capacity to recognize reality. 14
(B) A person who qualifies for a voluntary guardianship under 15
section 2671 of this title and agrees to the creation of an appropriate voluntary 16
guardianship shall not be deemed a person in need of guardianship under this 17
subchapter. 18
* * * 19
Sec. 5. REPEAL 20 BILL AS INTRODUCED H.26
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18 V.S.A. chapter 215 (guardianship services for people with 1
developmental disabilities) is repealed. 2
Sec. 6. 14 V.S.A. § 3062a is added to read: 3
§ 3062a. GUARDIANSHIP SERVICES FOR CERTAIN PERSONS WITH A 4
DEVELOPMENTAL DISABILITY 5
(a) The terms in this section shall have the same meanings as in 18 V.S.A. 6
chapter 204A (Developmental Disabilities Act). 7
(b) After the effective date of this act, guardianships administered, 8
modified, and revoked in the Family Division under former 18 V.S.A. chapter 9
215 (guardianship services for people with developmental disabilities) shall be 10
administered, modified, and revoked in the Probate Division under the 11
procedures of this chapter. The Supreme Court is authorized to promulgate 12
rules to supplement the procedures in this chapter to accommodate 13
circumstances particular to guardianships established under former 18 V.S.A. 14
chapter 215, provided that the rules shall not lessen the procedural protections 15
or reduce the options available under this chapter. 16
(c)(1) Any person with knowledge of the facts may request that the State’s 17
Attorney in the county where the person resides file a petition with the court 18
alleging that: 19
(A) the person has a developmental disability; 20 BILL AS INTRODUCED H.26
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(B) the person desires the assistance of a guardian or is in need of 1
guardianship; and 2
(C) there is no suitable private person to serve as guardian. 3
(2) The State’s Attorney shall file a petition requested under subdivision 4
(1) of this subsection with the court unless it clearly appears to the State’s 5
Attorney that the petition will be legally or factually insufficient to support an 6
action under this chapter. 7
(3) A petition filed under subdivision (2) of this subsection shall propose 8
that the Office of Public Guardian be appointed as the person’s guardian. If 9
appropriate, the court shall proceed in the same manner as for all petitions for 10
guardianship under this chapter. 11
(4) If the court after hearing determines that it is appropriate for a 12
guardianship to be established, and the court makes specific findings that there 13
is no suitable private person to serve as guardian, the court may appoint the 14
Office of Public Guardian as the person’s guardian. If the court makes an 15
appointment of the Office of Public Guardian under this subdivision, the 16
provisions of subchapter 13 of this chapter (public guardian) shall apply. 17
(d) A person who is receiving guardianship services under this chapter 18
from the Office of the Public Guardian or the Commissioner of Disabilities, 19
Aging, and Independent Living may appeal a decision of the guardian in 20
accordance with 3 V.S.A. § 3091 or by petition to the court, but an appeal or 21 BILL AS INTRODUCED H.26
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petition pursuant to this subsection shall not be required for a petition to the 1
court by an interested person to modify or terminate a guardianship under this 2
chapter. 3
Sec. 7. 14 V.S.A. § 3067 is amended to read: 4
§ 3067. EVALUATION AND REPORT; BACKGROUND CHECK; 5
RELEASE OF EVALUATION 6
(a)(1) When a petition is filed pursuant to section 3063 of this title and 7
there is probable cause to believe that the respondent is a person in need of 8
guardianship under subdivision 3061(1) of this title, or when a motion for 9
modification or termination is filed pursuant to subdivision 3077(a)(4) of this 10
title, the court shall order an evaluation of the respondent. If a motion to 11
terminate an involuntary guardianship is made for the purpose of establishing a 12
voluntary guardianship, the evaluation limitations in subsection 2671(e) of this 13
title shall apply. Except as otherwise provided in this subsection, the cost of 14
the evaluation shall be paid for out of the respondent’s estate or as ordered by 15
the court. If the respondent is unable to afford some or all of the cost of the 16
evaluation without expending income or liquid resources necessary for living 17
expenses, the court shall order that the Department of Mental Health or the 18
Department of Disabilities, Aging, and Independent Living provide the 19
evaluation through qualified evaluators. 20 BILL AS INTRODUCED H.26
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(2) A petition or motion filed pursuant to subdivision (1) of this 1
subsection shall contain a prominent notice that the respondent may object to a 2
proposed evaluation order and is entitled to a hearing on whether an evaluation 3
order should be issued. 4
* * * 5
Sec. 8. 14 V.S.A. § 3068 is amended to read: 6
§ 3068. HEARING 7
* * * 8
(h) Final orders of the Probate Division under this chapter shall notify the 9
parties of the right to appeal issues of fact to the Civil Division and issues of 10
law to the Supreme Court under 12 V.S.A. chapter 107 by filing a notice of 11
appeal with the Probate Division within 30 days after issuance of the order. 12
Final orders shall notify the parties of the right to seek a stay of the order from 13
the Probate Division or from the court appealed to under Vermont Rule of 14
Probate Procedure 62(d). 15
Sec. 9. 14 V.S.A. § 3076 is amended to read: 16
§ 3076. ANNUAL REPORTS; FINAL ACCOUNTING; FEES 17
(a) The guardian shall file an annual report with the appointing court within 18
30 days of following the anniversary date of the appointment. 19
* * * 20 BILL AS INTRODUCED H.26
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(e) If the Commissioner of Disabilities, Aging, and Independent Living or 1
the Office of Public Guardian has been appointed guardian, the Commissioner 2
or Office shall annually assess whether the person under guardianship would 3
qualify for a voluntary guardianship under section 2671 of this title and agree 4
to a voluntary guardianship being established. The assessment shall be 5
included in the annual report to the court required by this section. 6
Sec. 10. 14 V.S.A. § 3080 is amended to read: 7
§ 3080. APPEALS 8
Orders of the court issued pursuant to the provisions of this subchapter may 9
be appealed in such manner as provided in 12 V.S.A. § 2551 et seq. and Rule 10
72, Vermont Rules of Civil Procedure, provided, however, that any order 11
issued pursuant to this subchapter shall not be stayed during the pendency of 12
an appeal except by order of a court of competent jurisdiction. 13
(a) 12 V.S.A. §§ 2551 and 2553 shall govern whether an appeal under this 14
chapter shall be to the Civil Division or the Supreme Court. Appeals to the 15
Civil Division on questions of fact shall be tried de novo under Vermont Rule 16
of Civil Procedure 72. 17
(b) In an appeal to the Civil Division where the question is whether the 18
respondent is a person in need of guardianship, the respondent shall be entitled 19
to a jury trial. The right to a jury trial under this subsection may only be 20
waived with approval of the court. 21 BILL AS INTRODUCED H.26
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Sec. 11. EFFECTIVE DATE 1
This act shall take effect on July 1, 2026. 2