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Vermont Probate Division

Frequently Asked Questions


Orleans Superior Court

Adoptions
expand  Can my new spouse/partner adopt my child if I cannot either locate or gain the consent of their other biological parent?
expand  How long does the adoption process take?
Every case is different so there is no single answer. Under Vermont law, the child must reside with you for six months before the adoption can be finalized. So if you are diligent in the filing of the petition to adopt and all other required paperwork and duties, it is foreseeable that it could be only six months between placement and adoption in non-relative adoptions. In the case of stepparent/partner adoptions or near-relative adoptions where the child has already been in the home, the process may be faster. The time frame will depend on timely filing of required paperwork.
 
   
 
expand  I am a foster parent and want to adopt my foster child – how does this affect the adoption process and timeline?
expand  I plan to adopt a child from a foreign country – does this change how I go about the adoption process?
This does not impact the part of the adoption process that takes place in the Probate Court. There may be significant changes in the earlier stages of the adoption on which the child placement agency or attorney that you are working with can advise you.
 
 
expand  If I have a criminal record will I be unable to adopt?
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Adult and Minor Guardianships
expand   Are there any alternative to Adult Guardianship?
expand   Are there any limitations on a guardian’s powers?

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.

expand   Can a guardian be appointed more quickly if the person in need of guardianship is at risk of harm?
expand   Can a guardian be held liable for the actions of the person under guardianship?

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.

expand   Can a guardian be paid for acting as a guardian?
expand   Can a guardianship be modified or terminated?

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:

  • The death of the guardian;
  • The failure of the guardian to carry out his or her responsibilities including the failure to file the annual report and accounting;
  • The failure of the guardian to obey an order of the court;
  • A change in the ability of the person under guardianship to manage his or her personal or financial affairs;
  • A change in the capacity or suitability of the guardian for carrying out his or her responsibilities;
  • The expressed preference of the person under guardianship to have an alternative guardian appointed.  

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.

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Changing a Name
expand  I want to go back to using my maiden name. Do I need to do anything?
expand  How much will it cost to change my name?
Name changes are relatively inexpensive and simple. The filing fee is $131.25.
expand  What is the Vermont Statute for changing a name?
expand  What requires an official name change?
Common everyday usage does not require a legal change of name. If you decide that you want to start calling yourself a different name, you are free to do so, as long as it is not for an illegal purpose. A legal name change is required when you want to start doing legally binding business under your new name or use the new name on official documentation, such as a passport.
 
   
 

Emancipations
expand  Are you required to give the names and address of parents of custodians if known?
expand  Does emancipation mean the minor can do all the things adults can do?
No. Any legal requirement that has and age specific restrictions (drinking age, voting age, etc.) are still effective to limit the actions of the emancipated minor. On the other hand, the minor may make contracts (rental leases, etc.) as any adult.
 
   
 
expand  How does a child become emancipated?
expand  How long do you need to be a Resident of Vermont in order to petition for Emancipation?
To petition for Emancipation the minor must be a resident of the State of Vermont for a period of at least three (3) months.
   
 
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Estates and Wills
expand  As Executor or Administrator what are my duties?
expand  Do I need a lawyer to open an estate?
While it is advisable and cost-effective to have a lawyer in certain estates, it is not required that you have a lawyer to open an estate. Any interested person may file a petition with the Probate Court to open the estate. However, if you are unsure of your duties or your rights, it is best to obtain legal counsel to avoid mistakes during the probate process or to assure that your rights are protected.
 
   
 
expand  How do I go about objecting to a will?
expand  How do I make a claim against an estate?
A claim against an estate must be filed with the Probate Court in which the estate is pending and with the Executor or Administrator. There may be a time limitation, after which your claim will not be honored, so it is important to file your claim as soon as possible to avoid being barred by a time limit. You may seek a written negotiated settlement of the claim with the Executor or Administrator. There are special rules concerning evidence of such claims, so you should prepare documentation of the claim. Probate Court Form 34 may be used to make your claim.
 
   
 
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Testamentary Trusts
expand  I feel that the trustee is mishandling the trust – what can I do?
expand  I want to set up a trust – what do I do?
The Probate Court deals only with testamentary trusts, which are created by will. If this is the type of trust you are interested in creating, you should discuss it with your attorney when you have your will drawn up. If you are interested in Inter Vivos Trust (also known as living trusts) it falls under the jurisdiction of the Superior Court. Please consult an attorney for further information concerning this subject.  
 
expand  If I set up trusts, do I still need a will?
expand  What are the Vermont Statutes for Trusts?
The Vermont Statutes are 14 VSA Chapter 105 (Secs. 2301 - 2329) and (Sec.2314 - Concerning Replacement of Intervivos Trustee) at Vermont Statutues Online.