There are three major types of guardianship under the jurisdiction of the probate division of the Vermont Superior Court: involuntary and voluntary guardianships for adults and guardianships of minors.
If you believe an adult is incapable of managing either their own personal care or their financial affairs or both, you may petition the court to appoint a guardian to promote the person's well-being or protect the person's human and civil rights. This is called an involuntary guardianship. The court may appoint a total guardian or a limited guardian. In either case, the guardian encourages the person under guardianship to build independence and self-reliance.
If you are an adult who needs help managing your own affairs, you may file a petition in the probate division and request the appointment of a guardian. This is called a voluntary guardianship.
Parents are the natural guardians for their children. But there are circumstances when a court-appointed guardianship is needed to provide for a minor's personal care (a custodial guardianship) or protect the minor's property (a financial guardianship) or both.
If you think someone needs help in the management of their personal or financial affairs, you can file a petition with the probate division to request appointment of a guardian.
Before filing the petition, you should consider whether there are any alternatives to guardianship that might meet the individual’s need for help. This includes an appointment of a representative payee through Social Security or executing a general power of attorney or advance directive.
You should also consider who will act as the guardian. If there is no suitable private guardian for someone over 60 years old or for an individual with developmental disabilities, the court may appoint a public guardian through the Department of Disabilities, Aging, and Independent Living (DAIL).
If you believe a person needs a guardian because they are abused, neglected, or financially exploited, you should contact Vermont’s Adult Protective Services at 1-800-564-1612.
To begin the process, you must file a Petition for Involuntary Guardianship form with the probate division.
The petition asks the court to appoint a guardian for the person, who is referred to as the "respondent." You must give specific reasons and supporting facts about why the guardianship is appropriate, and what alternatives to the guardianship have been considered, and list which powers you are requesting for the guardian. You must also file the Statement of Respondent’s Assets and Income and the List of Interested Persons for a Guardianship, along with a filing fee.
Once you file a petition for involuntary guardianship, the court will appoint a lawyer to represent the respondent. You may hire a lawyer, but you are not required to do so. The court then schedules a hearing and orders a confidential evaluation by a qualified mental health professional. You may propose the name of someone who can perform the evaluation. The evaluation is due within 30 days of the petition's filing. It describes the nature and degree of any disabilities the person has. It also identifies areas of personal care and financial matters that the person:
- Can manage without supervision or help
- Could manage with supervision or help of support services and benefits
- Is unable to manage without the supervision of a guardian
If the respondent has assets, those pay the cost of the evaluation. If the respondent has limited assets, the court will send the order for evaluation to the Department of Health, and it will arrange for payment by the State of Vermont.
If the person who is the subject of the petition is unable to understand the nature of the proceedings or is unable to communicate with their lawyer, the court may appoint a guardian ad litem (GAL). The GAL is there to assist the court in determining the best interests of the respondent. The GAL has no actual guardianship powers and is appointed only for the duration of the guardianship proceedings.
After taking evidence at the hearing and considering the evaluation, the court decides whether the person is in need of guardianship. If the court approves the petition for guardianship, it defines the powers and duties of the guardian to meet the specific needs of the respondent. This includes support services and benefits that the guardian should get for the respondent.
If the court determines that the person under guardianship cannot manage all aspects of their personal care and financial affairs, it may appoint a total guardian. On behalf of an individual under guardianship, a total guardian can:
- Provide general supervision, such as choosing or changing residence (with court permission, if necessary), care, education, and employment
- Approve a contract
- Approve a request to buy or sell property
- Supervise income and resources, consent to surgery or other medical procedures (with court permission), or refuse treatment
- Receive, sue for, and recover debts
- Obtain legal advice and file or defend court actions
If the individual is able to manage some aspects of their personal care and financial affairs, the court can set up a limited guardianship. The court will order powers that the limited guardian has. The law also establishes certain limits on a guardian’s powers. For example, a guardian may consent to nonemergency surgery or nonemergency admission to a nursing home only after court approval. A guardian must also get court approval before withholding or withdrawing life-sustaining treatment or consenting to a do-not-resuscitate order, unless the respondent has an advance directive.
If you are 18 or older and need help managing your affairs, you may request the appointment of a guardian. You can ask that the guardian have specific powers, including general supervision, power to consent to medical procedures, and financial powers.
You can ask to end the guardianship at any time. The court will do so unless the guardian files for an involuntary guardianship.
Although you can set up a guardianship without a lawyer, having a lawyer can simplify the process and help you avoid mistakes.
The first step in creating a voluntary guardianship is to file a petition with the probate division. You can download a copy of the Petition for Voluntary Guardianship form here:
Forms are also available at the probate division. If you are requesting appointment of a guardian, you are called the respondent.
You must also file the Statement of Respondent's Assets and Income and List of Interested Persons with the petition, along with the filing fee. The court has discretion as to who is an interested person in a voluntary guardianship.
After you file a petition for guardianship, the court schedules a hearing. In order for the court to go ahead with a voluntary guardianship, the court must be sure that you understand the aspects and limits of guardianship and how to revoke it.
The powers a guardian may hold are the same in both forms of guardianship. In a voluntary guardianship, an individual requests a guardian to assist them in the management of their personal and/or financial affairs. The person under guardianship must be able to understand the nature, extent, and consequences of a guardianship and the procedure for ending it.
In an involuntary guardianship, another person makes a request for guardianship. The person in this situation may agree to the guardianship but may not have the understanding to qualify for a voluntary guardianship.
Another difference between the two kinds of guardianship relates to how it can end. In a voluntary guardianship, the person under guardianship may write to the court requesting the end of the guardianship. If the individual’s guardian does not file a written objection within 10 days, the guardianship ends without a hearing. If the guardian does file a written objection within 10 days, the proceeding becomes an application for involuntary guardianship. The court then schedules a hearing. In an involuntary guardianship, someone must file a petition with the court to end the guardianship. The court schedules a hearing on the petition.
A guardian must stay in close contact with the person under guardianship while allowing the individual as much personal freedom as possible. Guardians should encourage the individuals to take part in decisions, act on their own behalf, and develop or regain the ability to manage their own affairs as much as they can. Guardians must do their best to respect the wishes, values, beliefs, and preferences of those under their guardianship.
A guardian should assure that the person under guardianship receives all possible benefits and services. These include public benefits, medical and dental services, therapeutic and habilitation services, adult education, vocational rehabilitation, and other appropriate services. Habilitation services enable the person under guardianship to achieve greater levels of independence.
A guardian must keep the court informed of changes in the circumstances of the person under guardianship, such as a major change in health or living situation. Guardians must file annual personal and, in some cases, financial reports with the court. They must also file final reports with the court when their guardianships end.
There are certain actions a guardian may not take on behalf of the person under guardianship:
- 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 either the agent's decisions or the directive's instructions, the guardian may file a petition with the court asking for review of the advance directive.
- A guardian who has the power to make medical decisions must get permission from the court before withholding or withdrawing life-sustaining treatment, unless the decision must be made before court approval can be obtained.
- A guardian who has the power to make medical decisions must get permission from the court before consenting to a do-not-resuscitate order.
- A guardian who has the power to choose or change the residence of the person under guardianship must get permission from the probate division 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 similar facility. In an emergency, the guardian may change the residence of the person under guardianship without permission of the court. But immediately after the change, the guardian must request the court’s permission to continue the placement.
- A guardian may not have a person committed to the state hospital. The Department of Mental Health must file any petition for commitment in the family division of Superior Court.
- A guardian may not consent to involuntary hospitalization or medication for a person under guardianship.
The guardian has only the specific powers granted by the court order. A person under guardianship retains all other legal and civil rights guaranteed by the Vermont and United States Constitutions and all the laws and regulations of Vermont and the United States. These include the rights to:
- Control over all aspects of life not specifically delegated to the guardian by the court
- Treatment with dignity and respect
- Take part in all decisions made by the guardian
- Consult with and hire a lawyer
- Speak with another advocate
- Freedom of religion
- Have friends of choice
- Expression and free speech
- Be free from discrimination
- Petition the court on matters about the guardianship, including asking that the guardianship end
- Refuse medical treatment
- Have children
- Be safe from harm
- Access personal information, such as medical, financial, and treatment records
- Make a will if competent to do so
The person under guardianship or anyone interested in the welfare of that person may request modification or termination of the guardianship at any time. Reasons for ending or changing the guardianship include:
- Death of the guardian
- Failure of the guardian to carry out their responsibilities, including the failure to file the annual report and accounting
- Failure of the guardian to obey an order of the court
- Change in the ability of the person under guardianship to manage their personal or financial affairs
- Change in the capacity or suitability of the guardian for carrying out their responsibilities
- Expressed preference of the person under guardianship to have an alternative guardian appointed
To request modification or termination of an existing guardianship, you should file a Motion to Terminate or Modify Adult Guardianship.
The court will schedule a hearing on the motion. The court may order an evaluation of the person under guardianship if the change involves adding to existing guardianship powers.
In certain limited circumstances, the court may order an emergency temporary guardianship before an evaluation is completed. The court does so only when following normal court procedures would put the individual at risk of serious harm to physical health or financial interests. The court may issue an order for emergency guardianship either without a hearing or following a hearing where the individual is represented by a lawyer.
To ask for emergency guardianship, you must file a Motion for Emergency Temporary Guardian form along with the Petition for Involuntary Guardianship.
You must file a sworn statement saying that notice of the petition cannot be served because of the emergency need for guardianship. 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 you request an order without a hearing, you must include a sworn statement with specific facts showing that immediate, serious, and irreparable harm could result to the subject of the guardianship before a hearing can be held. An emergency temporary guardianship issued without a hearing expires after 10 days. The court schedules a hearing within that time on the emergency request.
To act as a guardian a person must be at least 18 years old and must be competent. A proposed guardian is usually required to undergo a background check.
A guardian cannot be a person who operates 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 guardianship would live.
When appointing a guardian, the court will consider the following factors:
- The preferences of the person under guardianship
- The geographic location of the proposed guardian
- The relationship between the proposed guardian and the person under guardianship
- The ability of the proposed guardian to carry out the powers and duties of the guardianship
- The willingness of the guardian to communicate with and respect the wishes of the person under guardianship
- Any potential financial conflicts of interest between the guardian and the person under guardianship
If you believe the guardian of an adult is not properly performing their duties, please write a letter to the court describing your concerns. The court may hold a hearing to determine whether the guardian is acting properly or whether there should be some change in the guardianship. If you think the court should appoint a new guardian, you should file a Motion to Terminate or Modify Adult Guardianship with the probate division.
If you believe a guardian is abusing, neglecting, or financially exploiting the person under guardianship or allowing the person under guardianship to be abused, neglected, or financially exploited, you should report you concerns to Vermont’s Adult Protective Services division at 1-800-564-1612.
If you believe a child’s guardian is not performing their duties, you should discuss your concerns with the guardian and the guardian ad litem, if there is one. If this approach is not successful, you may file a request or review of the guardianship with the probate division. If you are concerned about the safety of the child under guardianship, you should immediately notify the Department for Children and Families at 1-800-649-2642.
Many guardians serve without charging a fee. But depending on both the work involved and the assets of the person under guardianship, a guardian may be paid a reasonable fee. The amount depends on such factors as the time spent on guardianship responsibilities, the results achieved, the guardian's experience, and the complexity of the guardianship. Any fee comes from the estate of the person under guardianship. All guardian fees must be approved by the court.
If you are a guardian, you may request payment of a fee by filing a motion with the probate division. Your motion should describe the nature and extent of your work and include supporting documentation. You should send copies of the motion to all interested persons. You may not receive any fees until all personal and financial annual reports are filed with the court. You cannot pay yourself a fee without the permission of the probate division.