Discretionary appointment of GAL

Generally

Generally, consent is required to provide protective services to an adult.  If the adult or their agent does not consent, services can be provided involuntarily through court order provided that the adult is found incapable of consent.  In specific matters (requests for relief from maltreatment that are filed by “interested persons”), the court is permitted–but is not required–to appoint a guardian ad litem (GAL) for certain adults.  However, the criteria for appointment are not clear, because the court rule governing such matters appears to contain conflicting statements.  The development is classified as “discretionary” as well as “qualified”, since the permissive appointment does not appear to apply to all proceedings nor to all adults in the specified proceeding.  Furthermore, it is not clear whether the GAL must be an attorney.

Consent is required absent court order

V.S.A. 33 § 6906(b)(2) provides, “Services offered during or at the conclusion of an assessment can only be implemented through voluntary agreement or court action.” Consent may be provided by the vulnerable adult or their designated agent. V.S.A. 33 § 6907(b)(1) states:

Protective services shall be provided only with the consent of the vulnerable adult; the vulnerable adult’s guardian, agent under power of attorney, or agent under advance directive; or through appropriate court action. If the vulnerable adult does not consent, protective services shall not be provided, unless provision of protective services is court ordered.

(emphasis added).

Nonconsensual treatment through court order if adult incapable of expressing wishes

Emergency relief – No right to counsel provision found

Rule 9 of the Vermont Family Proceedings Rules indicate that, “[i]if the petition for relief is filed by an interested person on behalf of a vulnerable adult”, “the petition and actual notice of any final hearing under 33 V.S.A. §§ 6934-6936” must be provided to the adult. See also V.S.A. 33 § 6936(b). If the court determines that “the vulnerable adult is capable of expressing his or her wishes with respect to the petition” and the adult does not wish to pursue the petition, the court shall dismiss it. Id.  However, there was no appointment of counsel provision found for adults who are considered incapable of expressing their wishes.

Requests for relief from maltreatment

If relief sought by interested person – Appointment of GAL permitted

A request for relief from maltreatment of a vulnerable adult may be made by “[a] vulnerable adult, Adult Protective Services staff, or an interested person on behalf of a vulnerable adult”. 33 V.S.A. § 6933(a) (also outlining the variety of relief that can be requested). The court is permitted—but not required—to appoint a guardian ad litem for the adult if the relief is sought by an “interested person.” 33 V.S.A. § 6938(b).  But the Vermont Family Proceedings Rules provide additional details around when appointment of a guardian ad litem (GAL) is permitted as well as the role served by the GAL. See Vt. Fam. Pro. R. 9(l)(4) (“A guardian ad litem appointed by the court pursuant to 33 V.S.A. § 6938(b) shall be governed by Rule 6.1(c)(2), (c)(3), (e) and (f).”).  However, the applicable rule provisions seem to contradict one another. Vermont Family Proceedings Rule 6.1(c)(2) states:

The court shall appoint a guardian ad litem for the respondent only upon a finding that the respondent does not understand the nature of the proceeding or is unable to communicate effectively with counsel. For purposes of this rule a respondent is deemed able to communicate effectively or to be communicative when the respondent is able to convey information and express opinions responsively to questions related to the proceeding.

(emphasis added).  Paragraph (c)(3) requires that any GAL appointed must be discharged immediately if the court finds that the respondent is able to communicate effectively with counsel and understands the nature of the proceedings.  Confusingly, the portion of the Rule outlining the GAL’s role seems to conflict with paragraph (c)(3).  As to the role of the GAL, Vt. R. Fam. Pro. Rule 6.1(e) provides:

The guardian ad litem shall act as an independent advisor and advocate whose goal shall be to safeguard the respondent’s best interest and legal rights. When the respondent can effectively communicate his or her wishes with respect to any aspect of the proceedings, the guardian ad litem’s advocacy shall be consistent with the expressed wishes of the respondent, and the guardian ad litem shall state no fact nor disclose any opinion in regard to that aspect of the proceeding except with the express consent of the respondent.

(emphasis added).  Thus, the rule states that GAL appointment is allowed where the respondent is unable to effectively communicate.  The GAL should be immediately discharged if the court finds that the respondent is able to effectively communicate.  But the GAL has a responsibility to advocate for the respondent’s expressed wishes where the respondent is able to effectively communicate those wishes.

Related matters

Actions to review agent or guardian’s authority or refusal to consent – No right to counsel found

If the adult’s guardian is suspected responsible for the maltreatment and the guardian refuses to consent to either the investigation or to the protective services, “the investigator may seek review of the guardian’s refusal by filing a motion with the Probate Division of the Superior Court pursuant to 14 V.S.A. § 3062(c).”  To learn more about the right to counsel in guardianship matters in Vermont, please see Legislation, Guardianship/Conservatorship of Adults – Protected Person.

Similarly, if the adult’s agent is suspected responsible for the maltreatment and refuses to consent to the investigation or protective services, the investigator is authorized to seek review of the agent’s refusal by filing a motion pursuant to 14 V.S.A. § 3510(b) [as to review of a power of attorney agent’s actions] or 18 V.S.A. § 9718 [as to review of an advance directive agent’s actions].

Unfortunately, the reference to 14 V.S.A. § 3510 is outdated.  Section 3510 [titled “Action for accounting; declaratory relief; termination of power of attorney”] was repealed in 2023 and replaced by the Vermont Uniform Power of Attorney Act, 14 V.S.A. §§ 4001 through 4063. See 2023 Vermont Laws No. 60 (H. 227).  The Uniform Power of Attorney Act has a provision analogous to predecessor section 3510(b) though, found at 14 V.S.A. § 4016(a), which authorizes certain persons to “petition a court to construe a power of attorney or review the agent’s conduct and grant appropriate relief”. Among the individuals authorized to bring such a petition is “a governmental agency having regulatory authority to protect the welfare of the principal”. 14 V.S.A. § 4016(a)(7).

No right to counsel or appointment of a guardian ad litem for the principal was found.  But the statute does specify that “[u]pon motion by the principal, the court shall dismiss a petition filed under th[e] section, unless the court finds that the principal lacks capacity to revoke the agent’s authority or power of attorney.” Id. at (b).

As to related actions under 18 V.S.A. § 9718, no right to counsel or appointment of a guardian ad litem was located either.