Vermont S. 5: An act relating to plea agreements

Bill Text

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S.5 1
Introduced by Senator Williams 2
Referred to Committee on 3
Date: 4
Subject: Guardianship proceedings; adult guardianship 5
Statement of purpose of bill as introduced: This bill proposes to combine 6
jurisdiction over adult guardianship proceedings into a single division of the 7
Superior Court, the Probate Division, which would establish rules for the 8
proceedings with a more unified set of procedural protections and options. 9
An act relating to guardianship proceedings 10
It is hereby enacted by the General Assembly of the State of Vermont: 11
Sec. 1. APPLICATION AND CONSTRUCTION 12
In applying and construing this act, consideration shall be given to the 13
following: 14
(1) Prior to 1978, Vermont statute provided for adult guardianship only 15
through its probate court with minimal procedural protections. See Linda O. 16
Smiddy, “Guardianship for the Adult: A Need for Due Process Protections in 17
Vermont,” 4 Vt. L. Rev. 95 (Spring 1979). 18
(2)(A) The Vermont General Assembly passed Act 192 in 1978, which 19
provided the district court with jurisdiction to appoint the Commissioner of 20

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

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

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