Private Guardianship for Mentally Disabled Adults
A private guardian is a person appointed by the Probate Court to assume the responsibility for making decisions on behalf of another person (the court calls this person a "ward") whom the court has found is unable to make those decisions independently.
A private guardian may be a family member, a friend, an attorney or other interested person. The Probate Court may appoint a person who is not a resident of Vermont as a guardian if the court thinks the person is qualified to do the job.
The Probate Court will not appoint a person as guardian if he or she:
- formerly served as guardian ad litem in the case, or
- operates or is an employee of a boarding home, residential care home, nursing home, group home, or other similar facility in which the ward resides, or
- has another conflict of interest.
An involuntary guardianship is initiated through the filing of a petition with the Probate Court by an interested party (called the petitioner) such as a family member, social worker, or nursing home representative. The court then orders an evaluation by a mental health or mental retardation professional of the prospective ward, and a report submitted within 30 days. The report must describe the proposed ward’s abilities and disabilities in detail, and make recommendations about the need for and extent of a guardianship based upon the criteria set out in the law.
The court must notify the proposed ward in writing that a petition has been submitted. The court must also see that the proposed ward is represented by a lawyer, and must appoint one if necessary. The court may appoint a guardian ad litem for a proposed ward who cannot communicate with a lawyer or does not understand the right to be represented by a lawyer. A guardian ad litem’s role is to make sure the proposed ward’s legal interests are adequately protected during the court process; the guardian ad litem's role does not extend beyond the scope of the proceedings.
The hearing is held between 15 and 30 days from the date the evaluation is filed with the court. The proposed ward, the petitioner, and all interested parties named in the petition receive notice of the hearing. In general, interested parties may testify, and the proposed ward and the petitioner have the right to call additional witnesses as well. At the end of the hearing, the judge decides, based upon all the evidence presented at the hearing, whether or not the proposed ward meets the legal criteria for needing a guardian. If so, an order is issued listing the specific powers and duties of the guardian.
According to Vermont law, guardianship services for adults must encourage self determination and independence, and the extent of a guardian’s decision making ability must be based upon the abilities and needs of the ward. The court may create a total or limited guardianship. Thus, some guardians have responsibility for all personal and financial matters of the ward, and other guardians only have authority over particular aspects of the ward’s life, such as medical decisions or finances.
A Guide to the Responsibilities of Guardians of Adults with Mental Disabilities, Office of Public Guardian
This booklet has been prepared by the Office of Public Guardian to help private guardians and people considering becoming guardians to understand the role and responsibilities of guardianship.
You can get a form from any Probate Court office or online (You will need all three forms):
- Petition to Appoint a Guardian for a Mentally Disabled Adult (PC72)
- Statement of Proposed Ward’s Assets & Income (PC73)
- List of Interested Persons for a Guardianship (PC75)
These forms start the process for private guardianship and for public guardianship for people over 60. NOTE: There is a different petition and a different process for appointing a public guardian for a person with developmental disabilities.
Are having difficulty accessing any of the above listed forms"?
If your web browser shows that the form has downloaded completely but you do not see the form, click the "Back" button on your web browser and click the form link again. If the form still does not appear you can access the VT Judiciary Probate Court Forms website directly at: http://vermontjudiciary.org/eforms/probate.aspx. From this page you may access the above listed forms directly.
By law, all guardianships in Vermont for adults with mental disabilities must follow the procedures for involuntary guardianship. In many cases, the individual may agree that he or she would like to have a guardian, but the procedures for independent review are followed anyway. This includes the appointment of an attorney for the proposed ward, an independent evaluation, and court review of the person’s need for a guardian. This is because, in the past, there was a lot of abuse of the guardianship process for individuals with mental disabilities who didn’t understand the authority of a guardian, and didn’t understand their right to object to guardianship.
- Personal status report.
One year after the appointment, and annually thereafter, guardians with personal powers must file with the Probate Court a report which summarizes the progress and condition of the ward, including descriptions of his or her health, medical care, residence, education, employment, and other programs. The report must also explain to the court how the guardian carried out the duties and powers contained in the order, and must include the guardian’s opinion as to the ward’s continuing needs for a guardian. Ordinarily the court sends a blank form to the guardian. The form is available from the Probate Court or online.
- Financial accounting.
A guardian with financial responsibilities must file an annual report with the Probate Court. Ordinarily the court sends a blank form to the guardian. The form is available from the Probate Court or online.
A person who is under a guardianship and wants to end or change the guardianship can get legal assistance from Vermont Legal Aid.