Vermont H 26: An act relating to restricting retail and Internet sales of electronic cigarettes, liquid nicotine, and tobacco paraphernalia in Vermont

Bill Text

BILL AS INTRODUCED H.26
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VT LEG #379500 v.1
H.26 1
Introduced by Representatives Donahue of Northfield and Howard of Rutland 2
City 3
Referred to Committee on 4
Date: 5
Subject: Guardianship proceedings; adult guardianship 6
Statement of purpose of bill as introduced: This bill proposes to combine 7
jurisdiction over adult guardianship proceedings into a single division of the 8
Superior Court, the Probate Division, which would establish rules for the 9
proceedings with a more unified set of procedural protections and options. 10
An act relating to guardianship proceedings 11
It is hereby enacted by the General Assembly of the State of Vermont: 12
Sec. 1. APPLICATION AND CONSTRUCTION 13
In applying and construing this act, consideration shall be given to the 14
following: 15
(1) Prior to 1978, Vermont statute provided for adult guardianship only 16
through its probate court with minimal procedural protections. See Linda O. 17
Smiddy, “Guardianship for the Adult: A Need for Due Process Protections in 18
Vermont,” 4 Vt. L. Rev. 95 (Spring 1979). 19

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(2)(A) The Vermont General Assembly passed Act 192 in 1978, which 1
provided the district court with jurisdiction to appoint the Commissioner of 2
Mental Health as guardian for adults who were not institutionalized yet were 3
determined by the court to be “mentally retarded” and in need of protection 4
and supervision. That act provided for significant improvements in 5
guardianship procedural protections not available in the probate court system 6
at the time, including: 7
(i) a formal definition of the disabling condition upon which 8
guardianship jurisdiction could be founded and the requirement that there be a 9
comprehensive evaluation by a qualified mental retardation professional; 10
(ii) the right to representation by an attorney, at public expense if 11
needed; and 12
(iii) the necessity of a hearing, along with the opportunity to 13
present evidence and the right to subpoena and to cross-examine witnesses. 14
(B) Act 192 guardianship jurisdiction was subsequently assigned to 15
the Family Division of the Superior Court, with the Commissioner of 16
Disabilities, Aging, and Independent Living as appointed guardian. The 17
probate court is now the Probate Division of the Superior Court, and the 18
archaic and offensive term “mentally retarded” is no longer in use. 19
(3) In 1979, the General Assembly added subchapter 12 to the probate 20
court guardianship provisions in 14 V.S.A. chapter 111. Subchapter 12 21

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increased the procedural protections in the probate court so significantly that 1
they outstripped the protections available in what is now the Family Division. 2
In 2010 the differences between the two systems increased even further when 3
the General Assembly provided for voluntary guardianship in the Probate 4
Division without regard to an individual’s disability type. Voluntary 5
guardianship has never been an option in the Family Division. 6
(4) With regard to the Common Benefits Clause of the Vermont 7
Constitution, the General Assembly observed a generation ago that Vermont’s 8
history as an independent republic and as a State is one of equal treatment and 9
respect for all Vermonters. Presently, however, there are approximately 600 10
adults with disabilities for whom the State has been made guardian in the 11
Family Division despite deficiencies in how they are treated under the law 12
compared to how they would be treated in the Probate Division. These 13
differences include: 14
(A) In the Probate Division, under 14 V.S.A. § 3066, the court “may 15
appoint a guardian ad litem if it finds the respondent or person under 16
guardianship is unable to communicate with or advise counsel.” In the Family 17
Division, there is no provision for the appointment of a guardian ad litem. 18
(B) Appeals from the Probate Division to the Civil Division are de 19
novo, and under 12 V.S.A. § 2553 and Rule 72 of the Vermont Rules of Civil 20
Procedure, there is an available retrial in the Civil Division of disputed factual 21

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determinations such as mental incapacity. In the Family Division, only a 1
standard appeal with deference to the factual findings below is available. 2
(C) In the Probate Division, under 14 V.S.A. § 3076(a) and (b), the 3
guardian must file an annual report with the court “on the progress and 4
condition of the person under guardianship ... [and] the manner in which the 5
guardian carried out [their duties].” In the Family Division, no annual report is 6
required. 7
(D) In the Probate Division, under 14 V.S.A. § 3073, the residential 8
placement of the person under guardianship may only be changed upon an 9
order of the court made after a motion and hearing. In the Family Division, no 10
court permission is required for a change in reside