GUARDIANSHIP OF ADULTS

What is a Guardian?
What is Voluntary Guardianship?
What is Involuntary Guardianship?
Who May File in Court for Involuntary Guardianship?
What Happens at the Guardianship Hearing?
What if there is an Emergency?
What Can the Guardian Do?
What Rights Does the Ward Have?
Does the Guardian Have to Report to the Court?
When Does the Guardian Have to Get the Judge's Permission Before He or She Takes Any Action on the Ward's Behalf?
When Does a Guardianship End?
Where Can You Get More Help?

What is a Guardian?
A guardian is a person who is appointed by the Probate Court to help another person with his or her personal or financial affairs. The person who files the case in court is called the petitioner. The person who may need the guardian is called the proposed ward. If the Court orders the guardianship, the Court appoints a “guardian” to help protect the “ward”. The guardianship can either be voluntary or involuntary.

What is a Voluntary Guardianship?
A voluntary guardianship is when someone goes to the Probate Court and asks the Judge to appoint a guardian to help him or herself. This person may not have mental illness or be developmentally disabled to be eligible for a voluntary guardianship. The ward can ask to end the voluntary guardianship at any time. When the ward asks to end the guardianship, the Probate Court will end the guardianship unless the guardian files for an involuntary guardianship within ten days.

For more information and forms about a voluntary guardianship, visit the Probate Court’s website.

What is an Involuntary Guardianship?
An involuntary guardianship is when someone else asks the Probate Court to appoint a guardian for another person. The Probate Court can only appoint a guardian if the ward is either mentally ill or developmentally disabled. The Court must find that the ward can not take care of him or herself. The Court will order a mental evaluation of the proposed ward. The Court will hold a hearing before a guardian is appointed. The Court will appoint an attorney to represent the proposed ward.

For more information and forms about involuntary guardianship, visit the Probate Court’s website.

Who May File in Court for Involuntary Guardianship?
A friend, relative, social worker or anyone concerned about the proposed ward’s welfare. They need to file court papers that explain how the proposed ward is mentally ill or developmentally disabled and how the proposed ward is not able to take care of him or herself. The petitioner may request that someone other than the petitioner be named as guardian. The petitioner must pay a $50 filing fee unless he or she is low-income and can have the fee paid by the Court.

What Happens at the Guardianship Hearing?
The petitioner must attend the hearing. The petitioner needs to prove the case by testifying before the judge. The petitioner can have other witnesses testify too. The proposed ward may come to the hearing if he or she wants.. The proposed ward’s attorney must attend the hearing. The proposed ward’s attorney must make sure that the Judge hears what the proposed ward wants in the case. The court will read the mental evaluation. The person who did the mental evaluation can be required to testify at the hearing. If the court finds that the proposed ward is either mentally ill or developmentally disabled and is unable to handle his or her financial or personal affairs, the Court will appoint a guardian. The Court can appoint a guardian even though the proposed ward does not want one.

What if there is an Emergency?
If there is an need for a guardian right away, the Judge can appoint a temporary guardian. The petitioner has to show there will be serious harm to the proposed ward if a guardian is not appointed right away. If the Judge appoints a temporary guardian on an emergency basis without a hearing, the ward may request that the guardianship be ended or changed, and the court must hold a hearing on this request.

What can the Guardian Do?
A guardian can only do what the Court gave him or her the power to do. If the Court ordered a “total guardianship,” the guardian has all the powers listed here. If the Court ordered a “limited guardianship,” the guardian only has those powers that the Judge listed. The Court should give the guardian only those powers which the ward cannot do for him or herself. The powers of a total guardian include:

 

1.  General supervision, including deciding where the ward lives

2.  Approving contracts

3.  Buying and selling property

4.  General supervision over the ward’s finances

5.  Medical decisions, including consent to surgery and other medical procedures

6.  Legal decisions, including suing and defending lawsuits on the ward’s behalf

The guardian should always try to protect the ward’s personal freedom.

What Rights Does the Ward Have?
The ward has a right to have an attorney appointed by the court to represent him or her. The ward has a right to choose his or her own attorney too. If the guardianship is granted, the ward still has the right to talk with an attorney or other advocate privately. The guardian must consult with the ward before making a decision, and should follow the ward’s wishes when possible. The ward still has other civil rights under law like anyone else. These rights include the right to vote, to privacy, to marry and have children, to make a will, and to retain an attorney.

Does the Guardian Have to Report to the Court?
Yes, once a year. The guardian must file an annual accounting with the Court showing how the guardian spent the ward’s money during the year. The Judge reads the accounting and must approve it. The guardian must file a personal status report every year that tells the Judge how the ward is doing and explains how the guardian carried out his or her duties as guardian. The report must also include the guardian’s opinion as to whether the ward still needs a guardian.

When Does the Guardian Have to Get the Judge’s Permission Before He or She Takes Any Action on the Ward’s Behalf?
The guardian must get the Judge’s permission before selling the ward’s real estate. In some situations, the guardian must also get the Judge’s approval before changing where the ward lives. The guardian also needs the Judge’s permission to make certain medical decisions. If the ward disagrees with the decision of the guardian, the ward has the right to ask the Judge to change the decision.

When Does a Guardianship End?
The guardianship ends if the ward dies. The Judge can also end the guardianship if the ward gets better and take care of him or herself again. The ward has the right to ask the Judge to end the guardianship at any time.

Where Can You Get More Help?
If you want more information about how to get a guardianship, you can call your local probate court. The probate courts are listed in the Vermont Judiciary’s website.

If you are someone who has a guardian or are a proposed ward and want help or have questions about your rights, call Vermont Legal Aid at 1 (800) 747-5022.