Guardianship

Vermont Guardianship Proceedings

What They Are, How They Work, and How to Avoid Them With Proper Planning

When a Vermont adult becomes unable to manage their own financial or personal affairs — due to dementia, a stroke, a traumatic brain injury, or another incapacitating condition — and they have no legal documents authorizing a trusted person to act for them, Vermont law requires a court-supervised guardianship proceeding before anyone can legally step in to help. Vermont guardianship is a lengthy, expensive, and very public court process that removes legal decision-making authority from the incapacitated person and places it under court supervision.

At Nicole Peck McPhee, PC, we help Vermont families navigate guardianship proceedings when they are unavoidable — and design estate plans that make guardianship unnecessary entirely. A Vermont Durable Power of Attorney and Vermont Advance Directive, properly drafted and executed while a person has legal capacity, give trusted family members the authority they need without a single court filing.

Vermont Guardianship — At a Glance ✦     Governing Statute — 14 V.S.A. Ch. 111 (Guardianship of Adults); 14 V.S.A. Ch. 110 (Guardianship of Minors) ✦     Court — Vermont Probate Division of the Superior Court — one in each Vermont county ✦     Who Can Petition — Any interested person — a family member, a friend, a healthcare provider, or the Vermont Department of Aging and Independent Living ✦     Standard for Appointment — The court must find by clear and convincing evidence that the respondent lacks the ability to make informed decisions — and that guardianship is the least restrictive appropriate alternative ✦     Types of Guardianship — Guardian of the Person (personal and healthcare decisions); Guardian of the Estate (financial decisions); Limited Guardian (specific defined powers only) ✦     Ongoing Court Supervision — Vermont guardians must file annual reports with the Probate Division and obtain court approval for major financial decisions — including selling real estate and making significant expenditures ✦     Public Record — Vermont guardianship proceedings are matters of public record — the petition, medical evidence, and court orders are accessible to the public ✦     The Alternative — A Vermont Durable Power of Attorney and Vermont Advance Directive — executed while the person has legal capacity — give family members the same authority without any court involvement

Vermont guardianship is a court-supervised legal arrangement in which a judge — sitting in the Probate Division of the Vermont Superior Court — removes a person's legal right to make certain decisions for themselves and transfers that authority to a court-appointed guardian. Guardianship of a Vermont adult is governed by 14 V.S.A. Ch. 111 and is intended as a protective measure of last resort for individuals who lack the capacity to make informed decisions about their own care or finances.

Vermont law requires that guardianship be the least restrictive appropriate intervention. Courts are directed to consider and exhaust less restrictive alternatives — including a durable power of attorney, a healthcare directive, a representative payee arrangement, or a supported decision-making agreement — before imposing a full guardianship. When a person has executed comprehensive incapacity planning documents in advance, guardianship is rarely necessary.

Two Types of Vermont Adult Guardianship •       Guardian of the Person — Has authority over the ward's personal decisions — where they live, what medical treatment they receive, their daily care and welfare. A guardian of the person does not automatically have authority over financial matters. •       Guardian of the Estate (Conservator) — Has authority over the ward's financial affairs — managing assets, paying bills, filing tax returns, buying and selling property. In Vermont, this role is sometimes referred to separately as a conservator, though the statutory framework treats both under the guardianship chapter. •       Limited Guardian — The court may appoint a guardian with specific, defined powers only — preserving the ward's autonomy in areas where they retain decision-making capacity. Vermont courts are required to consider limited guardianship before imposing plenary (full) guardianship. •       Temporary Emergency Guardian — When there is an immediate risk of serious harm and no time for a full hearing, a Vermont court may appoint a temporary guardian on an emergency basis — typically for no more than 90 days while a full guardianship petition is pending.

Vermont adult guardianship proceedings are governed by 14 V.S.A. Ch. 111 and the Vermont Rules of Probate Procedure. The process is formal, deliberate, and designed to protect the rights of the person whose capacity is at issue. It is also time-consuming, expensive, and emotionally difficult for all involved.

Medical or Clinical Evaluation Vermont courts require medical or clinical evidence of incapacity. The petitioner typically submits a physician's or licensed clinical professional's report describing the respondent's diagnosis, functional limitations, and the nature and extent of their incapacity. The respondent has the right to obtain an independent clinical evaluation at their own expense.

Hearing Before the Vermont Probate Division A hearing is held before a Vermont Probate judge. The petitioner must establish by clear and convincing evidence — Vermont's highest civil standard of proof — that the respondent lacks the capacity to make informed personal or financial decisions, and that guardianship is the least restrictive appropriate alternative. The respondent has full rights to appear, testify, and be represented by counsel. The guardian ad litem presents their findings and recommendation to the court.

Court Issues a Guardianship Order If the court finds the required evidence has been met, it issues an order appointing the guardian, specifying the scope of the guardian's authority — limited or plenary — and the specific powers granted. The order is issued under 14 V.S.A. § 3072 and becomes part of the permanent public record of the Vermont Probate Division.

Ongoing Court Supervision and Annual Reporting Vermont guardians are subject to continuing court supervision. Guardians of the estate must file an initial inventory of the ward's assets within 90 days and annual accountings thereafter with the Vermont Probate Division. Guardians of the person must file annual personal status reports. Major financial transactions — including selling real estate, making large expenditures, or changing the ward's residence — require prior court approval. This ongoing supervision continues throughout the guardianship.

Termination or Modification of Guardianship Guardianship terminates automatically upon the ward's death. It may also be terminated or modified earlier if the ward regains capacity, if a less restrictive alternative becomes available, or if the guardian is removed for cause under 14 V.S.A. § 3080. A petition for modification or termination can be filed by the ward, the guardian, or any other interested party. The court may also appoint a successor guardian if the original guardian dies, resigns, or is removed.

Vermont guardianship of a minor is a separate proceeding governed by 14 V.S.A. Ch. 110. A guardian of a minor is a person — other than the child's parent — appointed by the Vermont Probate Division to care for the child's personal welfare, manage their property, or both. Guardianship of a minor typically arises when both parents are deceased, incapacitated, or otherwise unable to care for the child.

Common Situations Requiring Vermont Minor Guardianship •       Both parents die without naming a guardian in a valid will or guardian nomination •       A parent is incapacitated and unable to care for the child •       A parent is absent, incarcerated, or has abandoned the child •       A minor inherits property directly — a guardian of the estate is required to manage inherited assets for children under 18 •       A minor is named as a beneficiary of a life insurance policy or retirement account without a trust in place The most important thing a Vermont parent can do: Include a guardian nomination in your Vermont will. A properly executed guardian nomination in a Vermont will is the strongest evidence of the parent's wishes and carries significant weight with the Vermont Probate Division — though the court retains the ultimate authority to appoint whoever serves the child's best interests. Without a nomination, the court appoints a guardian with no guidance from the parent at all.

A minor's guardianship also terminates automatically at age 18. Parents who want to ensure that their children's inherited assets are managed and protected beyond age 18 — and distributed at an age and in a manner the parent chooses — must use a trust, not simply a guardian nomination. A guardian can only manage a minor's property until they turn 18; at that point, the assets pass to the child outright. A trust can hold and distribute assets on whatever terms and timeline the parent specifies.

How much does Vermont guardianship cost?

Vermont guardianship is significantly more expensive than most families anticipate. Costs include Vermont Probate Division filing fees, attorney fees for the petitioner's counsel, fees for the court-appointed guardian ad litem (paid from the respondent's estate), costs of obtaining medical and clinical evaluations, and ongoing annual reporting costs for the duration of the guardianship. Initial guardianship petitions in Vermont commonly cost $5,000 to $15,000 or more in attorney and court fees — depending on whether the petition is contested and the complexity of the respondent's situation. The ongoing annual reporting and court supervision adds recurring cost every year the guardianship continues. All of these costs are typically paid from the ward's own assets — reducing what is available for their care.

How long does it take to establish Vermont guardianship?

A Vermont guardianship proceeding typically takes two to six months from the filing of the petition to the entry of a guardianship order — assuming the petition is uncontested and the required medical evidence is available promptly. Contested guardianships — where the respondent or family members challenge the petition — can take a year or more and involve multiple court hearings, expert witnesses, and extensive discovery. During the pendency of the petition, the family may have no legal authority to act on behalf of the incapacitated person. In true emergencies, a temporary guardian can be appointed on shorter notice, but this is a limited interim measure only.

Can Vermont guardianship be avoided with a power of attorney?

Yes — and this is by far the most important estate planning point on this page. A Vermont Durable Power of Attorney, executed under 14 V.S.A. Ch. 127 while the principal has legal capacity, gives a named agent the authority to manage the principal's financial and legal affairs if they become incapacitated — without any court involvement, without any cost beyond the initial drafting, and without any delay. A Vermont Advance Directive, executed under 14 V.S.A. Ch. 121, gives a named healthcare agent the authority to make medical decisions. Together, these two documents provide the same decision-making authority that a guardian would have — privately, immediately, and at a tiny fraction of the cost. The critical requirement: both documents must be executed while the principal still has legal capacity. Once capacity is lost, it is too late.

What is the difference between a guardian and a power of attorney in Vermont?

A power of attorney is a private legal document signed voluntarily by the principal while they have capacity. It takes effect according to its own terms, requires no court involvement, is not a matter of public record, and can be executed in a single attorney appointment. A guardianship is a court-imposed legal status requiring a formal petition, a court hearing, medical evidence, a guardian ad litem, and a judge's order — taking months to complete, costing thousands of dollars, and creating a permanent public court record. A guardianship is what happens when no power of attorney exists. Every Vermont adult should have a durable power of attorney to make guardianship unnecessary.

Vermont Guardianship	Vermont Durable Power of Attorney
Requires court petition and hearing	No court involvement — ever
Takes 2–6 months minimum	Effective immediately upon incapacity
Costs $5,000–$15,000+ to establish	Modest one-time attorney drafting fee
Annual court reporting required	No ongoing reporting or court supervision
Public court record	Completely private
Court controls scope of authority	Principal defines the agent's authority
Guardian accountable to court	Agent accountable to principal and family
Cannot be planned in advance	Must be planned in advance — while capacity exists

What happens if someone becomes incapacitated in Vermont with no documents?

If a Vermont adult becomes incapacitated with no durable power of attorney, no healthcare directive, and no funded revocable living trust, their family has no legal authority to manage their finances, access their bank accounts, sell their property, or make medical decisions on their behalf. Every action requires either a court order or the adult's own signature — which they can no longer provide. The only way to obtain legal authority in this situation is to file a guardianship petition with the Vermont Probate Division. Until a guardian is appointed, the person's finances may be frozen, bills may go unpaid, and medical decisions may be delayed or made by healthcare providers under default protocols rather than by the family who knows the person best.

Can a Vermont guardianship be contested?

Yes. The respondent — the person who is the subject of the guardianship petition — has the right under 14 V.S.A. § 3068 to contest the petition, to be present at the hearing, to be represented by their own legal counsel, and to present evidence and cross-examine witnesses. Family members and other interested parties may also contest a guardianship petition — for example, if they dispute the proposed guardian's suitability, if they believe a less restrictive alternative is available, or if they believe the respondent retains adequate capacity. Contested guardianship proceedings are among the most expensive and emotionally damaging legal proceedings a Vermont family can face.

Who has priority to be appointed Vermont guardian?

Vermont courts are guided by the respondent's own prior expressions of preference — including any written nomination of a guardian made while the respondent had capacity. Under 14 V.S.A. § 3071, the court gives great weight to the respondent's prior nomination of a guardian in a written instrument. In the absence of such a nomination, the court considers the respondent's spouse or civil union partner first, then adult children, then parents, then adult siblings, then other relatives, and then other interested parties. The court is not bound by this priority order — it always appoints the person who will best serve the ward's interests. This is why a written guardian nomination — included in a will or a separate document executed while the person has capacity — is one of the most important and most overlooked estate planning tools.

What can a Vermont guardian of the estate do — and what requires court approval?

A Vermont guardian of the estate has authority to manage the ward's assets within the scope of the court's order — collecting income, paying ordinary bills, managing investments, and handling routine financial matters. However, significant financial decisions require prior court approval under 14 V.S.A. Ch. 111, including selling or mortgaging real estate, making large gifts or distributions, entering into significant contracts, making investments outside the court's approved guidelines, and changing the ward's primary residence. This requirement for prior court approval adds both time and expense to every significant financial decision made on behalf of a ward — one of the most significant practical burdens of Vermont guardianship compared to a well-drafted power of attorney.

What is a Vermont supported decision-making agreement?

Vermont law recognizes supported decision-making agreements as a less restrictive alternative to guardianship. A supported decision-making agreement is a written contract between an adult with a disability or cognitive limitation (the principal) and one or more supporters who agree to help the principal understand information and make their own decisions — without taking away the principal's legal authority. Vermont courts are required to consider supported decision-making as an alternative before imposing guardianship. For individuals with intellectual disabilities or early-stage cognitive decline who retain meaningful decision-making capacity with support, a supported decision-making agreement may preserve autonomy that guardianship would eliminate. Attorney McPhee can advise Vermont families on whether this alternative is appropriate for their specific situation.

What Vermont guardianship services does Attorney McPhee provide?

Attorney Nicole Peck McPhee assists Vermont families with the full range of guardianship matters, including:

Vermont Guardianship Services ✦     Filing petitions for adult guardianship in Vermont Probate Division ✦     Filing petitions for minor guardianship and guardian nominations ✦     Representing petitioners, respondents, and interested family members in guardianship proceedings ✦     Emergency temporary guardianship petitions ✦     Annual guardian accounting and reporting to the Vermont Probate Division ✦     Petitions to modify or terminate an existing Vermont guardianship ✦     Guardian removal proceedings ✦     Drafting Vermont Durable Powers of Attorney and Advance Directives to avoid future guardianship ✦     Supported decision-making agreement guidance ✦     Incapacity planning as part of a comprehensive Vermont estate plan

Vermont guardianship is almost entirely avoidable with proper advance planning. The three documents below — executed while the principal has legal capacity — give trusted family members the same authority a guardian would have, without a single court filing.

The Three Documents That Make Vermont Guardianship Unnecessary ✦     Vermont Durable Power of Attorney (14 V.S.A. Ch. 127) — Authorizes a named agent to manage financial and legal affairs — paying bills, managing investments, selling property, filing tax returns — immediately upon incapacity, without court involvement. Must be durable (contain language specifying it survives incapacity) and must be executed while the principal has legal capacity. Certain critical powers — including making gifts, creating or amending trusts, and managing digital assets — require express authorization in the document. ✦     Vermont Advance Directive (14 V.S.A. Ch. 121) — Vermont's combined healthcare power of attorney and living will. Names a healthcare agent with authority to make medical decisions — including end-of-life decisions — when the principal cannot make them. Expresses the principal's specific healthcare wishes so that providers and agents have clear guidance. Without this document, healthcare providers may be required to follow default protocols, and family members may have no legal authority to direct care. ✦     Funded Revocable Living Trust (14A V.S.A. § 602) — Allows the successor trustee to manage all trust assets immediately upon the grantor's incapacity — without any court involvement. Provides seamless continuity for real estate, bank accounts, investment portfolios, and business interests. The trust must be funded — assets must actually be transferred into the trust — for this benefit to apply. An unfunded trust provides no incapacity protection. Every Vermont adult over 18 should have all three of these documents. The cost of drafting them is a small fraction of the cost of a Vermont guardianship proceeding — and they provide far greater flexibility, privacy, and family control.

Attorney Nicole Peck McPhee represents Vermont families in guardianship proceedings throughout the state. The Vermont Probate Division has a division in each Vermont county — including Rutland, Bennington, Windsor, Addison, Orange, Washington, Chittenden, Lamoille, Caledonia, Orleans, Essex, Grand Isle, and Franklin counties. In-person meetings are available at our Rutland, Vermont office. Virtual consultations via Zoom or Google Meet are available for families throughout Vermont.

Schedule a Consultation with Attorney Nicole Peck McPhee

Whether for estate planning and wills or trusts, a real estate transaction, business formation or acquisition, or a private adoption matter, the first step is a focused one-on-one consultation. Nicole will learn about your situation, clearly explain your legal options, and outline exactly what is needed and at what cost. Consultations are available in person in Rutland or by secure Google Meet for clients anywhere in Vermont.

Contact us at 802-775-4845 or by email at [email protected] or contact Nicole Peck McPhee, PC.