Our Guardianships Practice
There are two types of guardianships handled in the Vermont probate courts. The first is an adult guardianship for an incapacitated adult. The second is a minor guardianship.
An adult guardianship proceeding is the legal process whereby a Court may appoint a guardian to manage the personal care or financial affairs of an incapacitated adult. Absent a valid medical directive, an incapacitated individual may need a third party to obtain the legal authority to make personal or health care decisions. Similarly, without a valid financial power of attorney, an individual may need another to make financial decisions. Even with proper advance planning documents, Court intervention may be necessary in circumstances where an individual requires protection from himself or herself, the agent under the power of attorney or from a third party.
To initiate a guardianship proceeding, an interested person (family, friends, nurse, etc.) may file a petition containing certain required information, such as the interested parties, specific reasons why a guardianship is needed, supporting facts, and financial information. After the filing of the petition, the Court will order an independent evaluation of the person for whom guardianship is sought (commonly referred to as the proposed “Ward” or the proposed “person under guardianship”) and appoint counsel for the proposed ward if none has already been retained. The Court requests that the evaluation be completed within 30 days. The court will schedule the hearing on the petition. The hearing is usually scheduled 15-30 days from filing of the medical evaluation. It is required that all interested parties receive notice of the hearing at least 14 days prior to the hearing. At the hearing, the Court will review the record and make a determination regarding the appointment of the guardian and the extent of his or her powers.
If a guardian is appointed, he or she will be granted some or all of the following powers:
- To exercise general supervision over the ward.
- To approve or withhold approval of any contract, except for necessities, which the ward may wish to make.
- To approve or withhold approval of any request by the ward to sell or in any way encumber the ward’s personal or real property.
- To exercise general supervision over the ward’s income and resources.
- To consent to surgery or other medical procedures, subject to the provisions of 14 V.S.A. section 3075 and any constitutional right of the ward to refuse treatment, except to the extent such decisions have been delegated to an agent under a durable power of attorney for health care.
- To receive, sue for, and recover debts and demands due the ward, to maintain and defend actions or suits for the recovery or protection of the ward’s property or person, settle accounts, demands, claims and actions at law or in equity against the ward, including actions for injuries to the property or person of the ward, and to compromise, release, and discharge the same on such terms as you deem just and beneficial to the ward.
Under Vermont Law, a minor, up to the age of 18, could have a Court-appointed guardian for one or more of the following reasons:
- The minor(s) has no living parent authorized to act as guardian;
- One or both of the parents are under guardianship or are incompetent or unsuitable to have custody of the person of minor(s);
- The parent of the minor(s) resides outside the state and has so resided for three years and has not contributed to the minor’s support during that time, and the minor(s) has resided in the state for three years prior to the date of appointment;
- No parent objects and transfer of custody is in the best interest of the minor(s) and is not solely for the purpose of establishing a residence for school purposes;
- The minor(s) has a parent living and the minor is the owner of real or personal property.
When petitioned to appoint a guardian for a minor, the Probate Court’s primary goal is selecting a guardian who will act in the best interest of this child. The Court can appoint either a parent, a family member or an individual who is not related to the ward. Minors 14 years or older may choose their guardian, subject to Court approval. Vermont law also allows parents to name their choice for guardian in their will, in case both parents die before the children are 18 years old.
The paramount duty for the guardian charged with responsibility for the personal care of a minor is to provide direction, decision making, and a nurturing environment appropriate to the age and abilities of the child so that he or she can grow and mature into an independent and responsible person. If the guardian is given responsibility for the property of a minor, decisions about the use and disposition of funds and property are to be made in a prudent and informed manner that will best suit the child’s needs. However, the guardian is not the sole decision maker when it comes to assets in the child’s name. The guardian is required to receive prior authorization from the Court before using the assets. Criminal prosecution or contempt of court may arise from unauthorized use of the child’s assets by a guardian.