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 competent individual at least 18 years of age may be a private guardian and can 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, 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.
- has another conflict of interest.
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. The petition shall state that the petitioner understands the nature, extent and consequences of the guardianship. The petition must specify which of the powers the petitioner requests to be exercised by the guardian and specify which individual the petitioner request to be appointed guardian. 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 court shall hold a hearing on the petition with notice to the petitioner and the proposed guardian. 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. The court may order that the petitioner be evaluated by a person who has specific training and demonstrated competence to evaluate the petitioner. 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 judgement specifying the powers of the guardian as requested in the petition.
If the court finds that the petitioner does not meet the criteria as outlined above, 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 involuntary guardianship.
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 qualified mental health professional (QMHP) or qualified developmental disability professional (QDDP) of the person in need of a guardian, and a report submitted within 30 days. The report must describe the individual in need of guardianship 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 person petitioned for guardianship in writing that a petition has been submitted. The court must also see that the person in need of guardianship is represented by a lawyer, and must appoint one if necessary. The court may appoint a guardian ad litem for a person in need of guardianship 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 person in need of a guardian’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 individual in need of a guardian, the petitioner, and all interested parties named in the petition receive notice of the hearing. In general, interested parties may testify, and the proposed person in need of a guardian 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 person in need of a guardian 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 person under guardianship, and other guardians only have authority over particular aspects of the individual'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 an Adult (Involuntary) (Probate Court Form PAG72)
- Statement of Respondent's Assets & Income (Probate Court Form No PG72)
- List of Interested Persons for a Guardianship (Probate Court Form No PG73)
These forms start the process for private guardianship and for public guardianship for people age 60 and older. NOTE: There is a different petition and a different process for appointing a public guardian for a person with developmental disabilities.
- 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 person under guardianship, 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 individual’s continuing needs for a guardian. Ordinarily the court sends a blank form to the guardian. The Guardian's Annual Report on Adult Guardianship PAG93 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 Summary of Account for Adult Guardianship and Motion PAG89 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.