Vermont Probate Division
Frequently Asked Questions
Vermont’s guardianship law requires that guardianship only be ordered when there are no less restrictive alternatives to assist an individual manage his or her personal and financial affairs. Some less restrictive alternatives include:
There are certain actions a guardian may not take on behalf of the person under guardianship. These include:
If the person under guardianship has an advance medical directive, the authority of the agent and the instructions in the directive remain in effect. If a guardian questions the decisions of the agent or the instructions contained in the advance directive, he or she may file a petition with the court asking for review of the advance directive;
A guardian who has been granted the power to make medical decisions on behalf of the person under guardianship must get permission from the court before withholding or withdrawing life-sustaining treatment, unless obtaining a court order would not be practical due to the need for a decision before court approval could be obtained;
A guardian who has been granted the power to make medical decisions on behalf of the person under guardianship must get permission from the court before consenting to a do-not-resuscitate order;
A guardian who has been granted the power to choose or change the residence of the person under guardianship must get permission from the probate court to admit the person to a nursing home or to move the person from a private home to a boarding home, residential care home, assisted living residence, group home, or other similar facility. In an emergency, the guardian may change the residential placement of the person under guardianship without permission of the court, but immediately after the change of placement must request the court’s permission to continue the placement (Probate Form PG77);
A guardian may not have a person committed to the state hospital. Any petition for commitment must be filed by the Department of Mental Health in the Family Division of Superior Court;
A guardian may not consent to involuntary treatment or medication for a person under guardianship;
A guardian may not consent to sterilization.
In certain limited circumstances it is possible for the court to order an emergency temporary guardianship before the evaluation is completed. An emergency temporary guardianship may be ordered only where following the normal court procedures relating to providing notice to the person who is the subject of the guardianship petition and allowing time for completion of the evaluation would cause serious and irreparable harm to the physical health or financial interests of the person who is the subject of the guardianship petition.
An emergency temporary guardianship order may be issued in one of two ways:
It may be issued before the evaluation is completed and following a hearing where the person who is the subject of the guardianship is represented by an attorney, or;
It may be issued before the evaluation is completed and without a hearing.
In order to obtain a temporary emergency guardianship order the person filing the petition for guardianship must also file a Motion for Emergency Temporary Guardian (Form PAG94).
If requesting an emergency temporary order with notice and hearing, a sworn statement that notice of the petition cannot be served as required by the Rules of Probate Procedure due to the emergency need for guardianship must be filed along with the Motion. The court will appoint an attorney for the person who is the subject of the guardianship and set a hearing for the earliest possible date.
If requesting an emergency temporary order without notice and hearing, a sworn statement with specific facts showing that immediate, serious, and irreparable harm will result to the respondent before a hearing on the appointment of an emergency temporary guardian can be held must be filed along with the Motion.
An emergency temporary guardianship order expires when the court makes a final decision on the guardianship petition. If the court has not issued a decision within 90 days of the filing of the petition, the court must hold a hearing to review the need for continuing the temporary guardianship order.
No, a guardian cannot be held liable for the actions of the person under guardianship. The guardian can be held liable if the guardian mishandles the financial affairs of the person under guardianship or otherwise causes harm to the person under guardianship.
Depending on the extent and nature of the work involved in acting as guardian, and on the assets of the person under guardianship, a guardian may be paid a reasonable fee. What is reasonable depends on such factors as the time expended on guardianship responsibilities, the results achieved, the experience of the guardian, and the complexity of the guardianship. Many guardians serve without charging a fee. Any fee is paid from the estate of the person under guardianship.
A guardian may request payment of a fee by filing a motion with the probate court with copies to all interested persons. The motion should describe the nature and extent of the work for which the guardian is requesting the fee and provide supporting documentation. A guardian may not be paid any fees until all annual personal and financial annual reports have been filed with the court. A guardian should never pay him or herself a fee without the permission of the probate court.
Yes. The person under guardianship or any person interested in the welfare of the person under guardianship may request modification or termination of the guardianship. Some reasons for termination or modification of the guardianship may include:
Individuals requesting modification or termination of an existing guardianship should file Probate Form PG78 “Motion to Terminate or Modify Adult Guardianship” with the court. The court will schedule a hearing on the Motion. The court may order an evaluation of the person under guardianship if the modification involves adding additional guardianship powers.