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Vermont Probate Court
Frequently Asked Questions About Guardianships
Disclaimer:
The Court is not able to give you legal advice. The information listed below is only meant to generally answer some common questions. This information is in no way intended to advise you or to substitute for consulting an attorney. For detailed help with any of these subjects we strongly urge you to contact an attorney.
General Guardianship Questions
In the State of Vermont a person who is over 18 years of age, who does not work in a residential care home, a nursing home or a group facility in which the proposed ward resides may serve as guardian.
The petitioner must suggest a proposed guardian. Wards, including minors over the age of 14, can recommend a person of their choice as guardian. In appointing a guardian who will carry out the designated responsibilities and serve the best interests of the ward, the Probate Judge gives consideration to these factors:
- preference of the ward;
- geographic location;
- relationship to the ward;
- ability of the guardian to carry out the powers and duties; and
- potential conflicts of interest
If the petition for appointment of a guardian is approved, the Probate Judge appoints a guardian and designates specific powers and duties for the guardian to assume while promoting and protecting the best interests of the ward.
Duties of a Guardian:
A guardian’s duties to his or her ward include care, concern, and special attention. It is also the guardian’s duty to see that the ward receives the benefits and services he or she is lawfully entitled to and needs. These benefits and services include but are not limited to:
- education services for a ward who is of school age;
- residential services for a ward who lacks adequate housing;
- nutrition services;
- medical and dental services, including home health care;
- therapeutic and habilitative services, adult education, vocational rehabilitation or other appropriate services.
A guardian is required to report to the Court, annually by the anniversary date and at the time the guardianship is terminated. The Summary of Account (Form 89) and the Personal Status Report (Form 93) are required. These reports are essential, and failure to prepare them is grounds for removal of the guardian.
It is usual in Vermont for guardians to be bonded. This means that before the Probate Court appoints the guardian, he or she must file a bond, using the Guardian’s Bond (Form 79). The bond stands as an assurance that the guardian will perform the duties according to law. Although being bonded does not require the actual deposit of funds, it may be necessary to have an insurance company act as guarantor for the guardian’s obligations. This service can be arranged through local insurance companies at a reasonable fee. The necessity of a bond often depends upon the size and nature of the assets in the guardianship.
If the guardian has been granted financial, contract or property power, a report of the income, expenses and assets held by the ward must be filed with the appointing Court annually. For purposes of financial reporting, it is necessary to keep separate accounts for the ward and to record income, expenditures, and any activity that changes the ward’s personal estate or real estate. If the ward’s individual financial transactions are recorded, preparation of the annual summary is not too difficult. General assistance is always available through the Court. If you are becoming a guardian you should review the guardian’s account form and instruction sheet to become familiarity with your accounting responsibility.
The Court has an on-going interest in the ward and relies on the guardian to report on the progress and general well-being of the ward as well as assessing the appropriateness of the guardianship in general. Special concerns and unusual changes in the ward’s status should be reported to the Court as they occur. Annually, the guardian must complete the Personal Status Report (Form 93) which requests the following information about the ward:
- current address and living situation;
- current condition;
- state of the ward’s health and medical and dental care being provided;
- clothing resources, education and employment;
- summary of how the guardian’s powers have been carried out and how the duties have been fulfilled;
- recommendations for changes to the guardianship and whether the guardianship should continue with reasons for this recommendation.
Fee Paid to Guardian for Service:
A guardian is entitled to reasonable compensation, once appointed by the Probate Court. What is reasonable depends on several factors: the time expended, the result achieved, the experience of the guardian, the complexity of the guardianship, and the customary fee in the locality where the guardian serves. Many guardians serve without claiming a fee. If you do claim a fee, the amount of the fee should be approved by the Court in writing before it is paid. You should submit an itemized bill to the court, with a copy to interested persons, if you are requesting approval of a fee.
Termination or Modification of Guardianship:
The ward or any person interested in the welfare of the ward may, at any time, file a motion for termination or modification of the guardianship. Annually, each ward under guardianship and his or her lawyer receives notice from the Court advising the ward of the right to file a motion for termination or modification of the guardianship. When such a motion is received in the Probate Court that approved the guardianship, notifications are sent to all interested persons, a hearing is held and based on the information presented, the Probate Judge will determine whether changes are appropriate.
Grounds for Termination or Modification:
Grounds for termination or modification of the guardianship include the following:
- death of the guardian;
- failure of the guardian to file an annual report or act in accord with an order to the Court;
- change in the ability of the ward to manage his or her personal care or financial affairs;
- change in the capacity or suitability of the guardian for carrying out his or her powers and duties.
At the time of termination, the guardian must submit a final financial report and personal status report.
When an individual needs assistance in managing his or her personal or financial affairs, there are several alternatives to establishing a guardianship. Some of these alternatives are:
- setting up a power of attorney
- establishing a trust
- Protective Services for Mentally Retarded Persons
- SSI Representative Payee
- Citizen Advocacy
I am worried about someone and think they should have a guardian – how can I help?
As an interested party you have the right to petition the Probate Court for guardianship if you feel that the person needs a guardian for his or her own protection. The Court will hold a hearing on the petition and determine if the person does or does not need a guardian. Before filing the petition, you should consider who will act as the guardian. Often, it will be a family member or friend. If you believe that a person is being abused, you may contact Adult Protective Services at 1-800-564-1612
I am worried that a guardian is not properly performing their duties – what can I do?
You can take your concerns to the Probate Court. The best way would be to contact the Court in writing with your concerns. The Judge or Register may schedule a hearing for all involved parties to consider the matter.
A guardian can be given full powers or limited powers depending on the needs of the ward. If a ward needs only help managing their finances, then the Court will give the Guardian power only over this area. The Court will carefully assess the situation to ensure that the ward does not lose any more autonomy than necessary.
How might my relative grant a Power of Attorney?
Both parties involved must agree to the Power of Attorney. Available at Probate Court is the pamphlet "Taking Steps To Plan for Critical Health Care Decisions" which is published by the Vermont Ethics Network. Forms are available online at www.vtethicsnetwork.org. This pamphlet contains the form for a Durable Power of Attorney for Health Care, which gives the person with the power of attorney the authority to make health care decisions of the other person when they are unable to make them for themselves. Concerning financial powers of attorney, you should seek competent legal advice from a Vermont attorney. A worthwhile pamphlet entitled "Taking Charge" is available on line with forms from the Vermont Bar Association at www.vtbar.org. A financial power of attorney is a significant legal step which should be considered carefully.
What is the difference between a voluntary guardianship and an involuntary guardianship?
As the names would suggest, the difference is the ward’s agreement to the guardianship. In the case of a voluntary guardianship, the potential ward sees the need for the guardianship and agrees to it. In the case of an involuntary guardianship the potential ward either refuses to see a need for the guardianship or is unable to understand the concept due to illness or mental incapacity. The Court must be convinced the ward is mentally disabled and functionally incapable, and that it is in the best interest of the potential ward, before an involuntary guardianship will be established.
I need help with caring for my minor child at this time due to various reasons and want to have a specific person made guardian – how do I do this?
You or the person that you want to be guardian of your minor child can petition the Court to appoint a guardian. The Court will hold a hearing on the matter. The Court will try to accommodate your wishes as to who will act as guardian of your child as long as the person you have picked is suitable for the role. The Court will also give the guardian information about reporting requirements, which the guardian will have during the term of the guardianship.
My child is under the guardianship of another and I feel that it is no longer necessary – what can I do?
You should write a letter to the Court explaining why the guardianship is not necessary and request that the guardianship be terminated. A hearing will be held to determine if the guardianship should be terminated.
I am the guardian for a minor’s property - how do I become bonded?
The Court will advise you what of bond is required. Sometimes the Court waives a surety. In this case, you simply sign the bond and return it. If a personal surety is required, often you need a financially responsible person to join with you in the obligation of the bond. If you violate your duties and cause a loss, both you and the surety are potentially liable on the bond. If a commercial surety is required, then you should speak with insurance companies to locate an insurer who writes fiduciary bonds. There will be a bonding fee for this sort of surety depending upon the amount of the bond.
A guardian ad litem is a person appointed by the court to represent the interests of a party, in this case, the minor. The Court appoints someone who is impartial to speak for the party who cannot speak for themselves, due to age or disability, to insure that their interests are protected throughout the proceeding. This is done to insure that the minor’s interests are adequately represented and heard. The court administrator shall reimburse guardians ad litem for necessary and actual expenses incurred in the performance of their duties. (32 V.S.A. ' 1408)
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