13-003 Code Vt. R. 13-110-003-X

Current through August, 2024

Section 13 110 003 - REGULATIONS OF THE OFFICE OF PUBLIC GUARDIAN

Section I General Provisions

A. Introduction

The Office of Public Guardian was established to provide guardianship services to mentally disabled persons 60 years of age or older for whom the probate court is unable to appoint a guardian from the private sector.

It is the policy of the State of Vermont that guardianship for mentally disabled persons shall be utilized only as necessary to promote the well being of the individual and to protect the individual from violations of his or her human and civil rights. The Office of Public Guardian will encourage maximum self reliance and independence in the individual and guardianship services will be provided only to the extent required by the individual's actual mental and adaptive limitations as instructed by the probate court.

The ultimate objective of each public guardian is to ensure wards receive appropriate care, protection and services in the least restrictive manner and environment.

In making decisions for wards, public guardians shall consider all available current and past information indicative of the ward's wishes, preferences, and values in order to decide, as much as is possible and prudent, as the ward would if able. When no such information exists, public guardians shall make decisions based on the public guardian's judgment of what will benefit the ward the most and offer the greatest opportunity for independence and self-determination.

Public guardians shall also actively work to limit or terminate the guardianship and find private guardians.

B. Statutory Authority

The Office of Public Guardian is established pursuant to 14 VSA Chapter 111, subchapter 13.

C. Exceptions and Severability

A determination of invalidity of any provision of these regulations, or its application, shall not affect the validity of any other provision or its application.

Section II Definitions

a. Facility - Means a psychiatric hospital or psychiatric unit in a general hospital or any place licensed or required to be licensed by the state pursuant to 18VSA 45 2002 et. seq. including a nursing home, residential care home or therapeutic community residence, and including intermediate care facilities for the mentally retarded (ICF-MR's).

b. Office - Means the Office of Public Guardian.

c. Property - Means anything that may be the subject of ownership, including all real and personal, tangible and intangible property.

Section III Rights of Wards

In general, a ward retains all legal and civil rights guaranteed to Vermont residents under the Vermont and United States Constitutions and all the laws and regulations of Vermont and the United States. Certain rights are personal to the ward and are not transferable. Without limitation, these rights include:

1. the right of the ward to exercise control over all aspects of his or her life not specifically delegated to a public guardian by the probate court;

2. the right to be treated with dignity and respect;

3. the right to guardianship services suited to the ward's conditions and needs;

4. the right to privacy; this includes the right to bodily privacy, the right to unimpeded, private and uncensored communication with others by mail and telephone;

5. the right to visit with persons of the ward's choosing;

6. the right to procreate;

7. the right not to undergo sterilization solely for the purpose of birth control;

8. the right to vote;

9. the right to make a will;

10. the right to participate in all decisions made by the public guardian and to have personal preferences followed unless they would result in serious harm to the ward and the ward is unable to fully understand the benefits and consequences of the choice;

11. the right to petition the court for termination or modification of the guardianship or change of guardian; this right shall include, on at least an annual basis, an explanation by the public guardian of the steps necessary to initiate the procedure;

13. the right to have all personal and financial information kept confidential except when necessary in managing the care or affairs of the ward;

14. the right to access to all public guardian reports to the court;

15. The right to appeal actions of the public guardian to the supervisor of the Director of the Office of Public Guardian, the Human Services Board and to the probate court, and the right to an explanation of how to make such appeals.

16. The right to retain an attorney and to have the ward's attorney notified by the public guardian of all motions or proposed actions in probate court initiated by the public guardian and the right of the ward to communicate freely with counsel and the courts.

The public guardian shall work to help the ward attain these rights and shall respect these rights at all times.

Upon appointment or at the first meeting between the public guardian and the ward, the public guardian shall make every reasonable effort to explain these rights to the ward and shall provide a written copy of these rights in clear language and easily readable print to the ward.

1. In the case of wards who, in the judgement of the public guardian, are unable to understand these rights, the public guardian shall provide a copy of these rights to all interested parties in the guardianship proceeding.

2. In the case of wards who, in the judgement of the public guardian, are only partially able to understand these rights, the public guardian shall summarize these rights and then provide others with copies as in # 1 above.

Section IV Administrative requirements

A. Limit on number of wards

1. Public guardians shall not be responsible for more than ten wards per half time equivalent position at any one time. The Office shall review this limit at least annually and propose changes in these regulations as necessary to meet the need for guardians while ensuring the needs of wards are properly met.

a) Any time the Director of the Office of Public Guardian determines that, due to the complexity of current guardianship cases, public guardians would have significant difficulty meeting the needs of wards properly or carrying out their duties as guardians the Director may choose to temporarily suspend acceptance of appointments.

When the Director makes such a determination, he or she shall notify the probate courts in writing immediately.

b) The Director of the Office may exceed this limit in unusual circumstances provided that any additional appointment:

1. is a priority situation (see subsection C) and

2. will not adversely affect services to current wards.

2. The Office shall establish a method which affords flexibility in accepting appointments to enable public guardians, in one part of the State, with fewer wards than this limit to take on appointments from other parts of the State.

3. The Office shall notify the probate courts in writing whenever the maximum number of appointments has been reached.

B. Conflict of interest

1. A public guardian shall not commingle personal funds or any other funds with the funds of a ward.

2. A public guardian shall not sell or encumber a ward's real or personal property or any interest therein to himself or herself, his or her spouse or other relative, agent, attorney, or any corporation or trust in which the public guardian has beneficial interest.

3. A public guardian shall not borrow funds from or lend funds to a ward.

4. A public guardian shall not provide services for a fee, or work for any entity which provides services for a fee, to a ward or a relative of a ward, or receive any services or gifts from a ward or relative of a ward.

5. A public guardian shall not serve as private guardian for anyone except a relative. The Director of the of the Office may waive this requirement upon a determination that the private guardianship existed before employment as a public guardian and it will not interfere with the public guardian's ability to perform the duties of the position.

6. A public guardian shall not serve as a petitioner or as a witness in an initial guardianship proceeding or as an adverse witness opposing a termination motion when the public guardian is not the guardian.

C. Priorities

In general, the Office shall seek to restrict appointments to only those necessary. It shall work cooperatively with the probate courts toward that end and shall treat as priority:

1. situations involving abuse, neglect or exploitation of a ward or proposed ward;

2. situations requiring critical medical decisions on behalf of a ward or proposed ward;

3. in general, any situation which may cause serious or irreparable harm to the ward's mental or physical health or financial interests.

D. Policies and Procedures

The Office shall develop written policies and procedures and standardized forms which shall as much as possible-conform to and complement forms for rules of probate procedure.

E. Charges to Wards

1. The Office shall not charge wards for services provided by public guardians.

2. If the ward has available resources at or below 200% of the limit for Medicaid eligibility, the public guardian will make every reasonable attempt to obtain necessary consultant, legal or court services at no cost to the ward. If the cost for the service would reduce the ward's available resources below that limit, this provision would also apply.

F. Memos of Agreement

The Office shall establish written memos of agreement with at least the following organizations in order to clarify roles and procedures for referral of problems: the Vermont Office of the Long Term Care Ombudsman, the Vermont Adult Protective Services Program and Vermont Legal Aid.

G. Advisory Committee

The Office shall establish an advisory committee to advise the Office on the operation of its program. The advisory committee shall include among its members individuals with expertise in areas such as law, medicine, long term care, psychology, psychiatry and social services.

H. Assistance to Private Guardians

The Office shall provide assistance to private guardians for persons over 60 to help them understand their wards' disabilities, carry out their duties as guardian, and foster independence on the part of wards. The Office shall provide this assistance both upon request and by offering assistance to the probate court, but such assistance shall be provided only to the extent it will not detract from the public guardian's ability to provide services to wards.

I. Appealing Actions of Public Guardians

Wards who wish to appeal the action of a public guardian may first appeal to the Director of the Office of Public Guardian by contacting the Director in writing or verbally and requesting a review of the action. The Director must respond in writing within seven working days.

If the ward is not satisfied with the response from the Director, the ward may appeal next to the Commissioner of the Department of Aging and Disabilities, verbally or in writing, and the Commissioner must respond in writing within 14 working days.

If the ward is still not satisfied, the ward may exercise the right to appeal to the probate court, or to the Human Services Board pursuant to 3 VSA 3091.

J. Public Information

The Office shall:

a) prepare and make available, at no charge, a booklet which describes the duties of a guardian;

b) develop and present public education programs on guardianship and alternatives to guardianship;

c) prepare an annual report describing activities of the Office in the preceding year including public education activities and activities to support private guardians.

K. Bonding

a) The Office shall be bonded for each of its wards as directed by the Probate Court pursuant to 14 VSA 2751.

b) The Office may combine the bonding rerquirements for some or all of its wards by purchasing a bond in an amount equal to or greater than the aggregate sum of the resources of the wards for whom the bond is issued. The amount of this bond shall be adjusted as necessary to reflect fluctuations in the aggregate amount of wards' resources.

c) The cost of the aggrregate bond shall be assessed on a pro rata basis against the resources of the wards covered by the bond.

Section V Duties and Responsibilities of Public Guardian

A. General Duties

If consistent with the powers granted in individual cases by the probate court, public guardians shall assure that wards of the Office:

(1) are appropriately housed, with adequate heating and ventilation and appropriate adaptations if the ward has physical limitations;

(2) receive any financial, health care or other public benefits for which they may be eligible;

(3) receive all necessary medical care, including routine preventive care and dental care, as prescribed by a physician;

(4) receive necessary mental health care as prescribed by a qualified professional;

(5) receive necessary personal care such as help with preparing meals, eating, dressing, bathing, mobility, general supervision;

(6) have proper food to maintain good health;

(7) have adequate clothing, including adaptive clothing as necessary;

(8) are visited by the public guardian no less than quarterly; if wards are not visited at least monthly, the guardian shall have monthly telephone contact with the ward or in the event that the ward is unable to communicate by telephone, then with the facility providing care and treatment to the ward; during visits and phone contacts public guardians shall ascertain, to the extent possible, the ward's satisfaction with the current living situation, the current status of the ward's mental disability, and current needs and wishes of the ward, and whether continued guardianship is appropriate;

(9) are represented by counsel in all matters before the probate court;

(10) are subject to the most limited guardianship necessary to meet the ward's needs, and public guardians shall actively work to limit the guardianship.

B. Initial Steps

(1) The public guardian shall meet with the ward as soon after appointment as is feasible, but no later than two weeks thereafter in order to:

(a) explain the role of the guardian to the ward;

(b) explain the rights of the ward in accordance with Section III of these regulations;

(c) assess the health care, personal care, housing, social and recreational needs of the ward, the ward's wishes and preferences, the ward's financial status, and the support systems available to the ward.

(2) Within two weeks after the first meeting, after consultation with the ward's physician and other health care providers, the public guardian shall formulate goals for the ward and shall develop plans to meet those goals. Plans shall address the unique situation of the ward and shall be consistent with the policy set forth in Section I of these regulations. The public guardian shall monitor the ward's situation, assessing the continued benefit of current plans and promptly making changes as needed to ensure the ward's needs are met.

C. Monitoring the Ward's Living Situation

Where the public guardian has authority to determine the residence and living situation of the ward, the public guardian shall monitor the living situation of the ward to assess:

(1) Whether the living situation provides the most appropriate, least restrictive living arrangement available;

(2) the ward's satisfaction or preferences with respect to the living situation;

(3) the degree of safety of the ward's home or apartment; the guardian will make every effort to make the home environment safe before considering moving the ward;

(4) the effect a change in living situation would have on the ward's psychological, emotional, social and physical condition;

(5) whether the living situation allows visiting by family and friends; and

(6) if a ward lives in a facility, the quality of life and care provided, including whether the ward's medical, personal and mental health needs are met and the safety, cleanliness, accessibility and general physical condition of the facility.

i. The Office shall request the most recent survey and licensing reports for facilities in which wards of the Office reside.

ii. In cases where deficiencies or violations may affect the welfare of wards, the Office shall seek appropriate remedial action by the licensing agency and may restrict further placement of wards until violations have been corrected.

iii. When a delay in remedying violations could lead to injury to the ward, the Office shall seek alternative residential placement.

D. Moving a Ward

(1) A public guardian having authority to determine the residence and living situation of the ward shall attempt to accomodate the wishes of the ward and shall not authorize a move to a more restrictive environment unless:

(a) to the extent possible the guardian has discussed the move with the ward and considered the wishes of the ward;

(b) the ward's needs cannot be met in the current living situation;

(c) no less restrictive alternatives are available;

(d) the public guardian first has considered the the factors listed in Section C above; and

(e) the public guardian has first consulted with professionals actively involved with the ward and with family members if available.

(2) The public guardian must visit and evaluate the facility and consult with the facility licensing agency.

(3) If after assessing the ward's living situation under Section C above, a public guardian determines that the ward should move to a more restrictive setting, he or she shall seek the approval of the court before moving the ward pursuant to 14 VSA 3073. In no event shall a guardian admit a ward to a facility for the treatment of persons who are mentally ill or mentally retarded except by filing an application for involuntary treatment, pursuant to 18 VSA 7611 et seq, or a petition for commitment, pursuant to 18 VSA 8820 et seq.

(4) Before moving a ward to a more restrictive environment, a public guardian shall provide in the ward's file written documentation of compliance with this part and justification for the change in residence.

(5) A public guardian shall not authorize a ward be moved into any facility operating unlawfully without an appropriate license.

(6) The public guardian shall notify the probate court of any change in the ward's residence.

(7) Within five working days after a ward's living situation is changed, the public guardian shall visit the ward and assess the new arrangement.

(8) Any time a facility proposes to move a ward, the public guardian will assess the need for such a move, ensure the ward's legal rights are respected, notify the ward's attorney and pursue any appropriate administrative or legal remedies if the public guardian believes the ward is being treated unfairly.

E. Managing a ward's finances and property

The following regulations apply to a public guardian having authority over a ward's finances pursuant to 14VSA 3069(b)(2)(3)(4) and (6).

1. A public guardian acting as a fiduciary has the following duties:

a. to keep the affairs of the ward confidential except when disclosure is necessary and in the best interest of the ward;

b. to secure all income and resources to which the ward may be entitled;

c. to keep accurate records of all payments, receipts and financial transactions undertaken on behalf of the ward;

d. to ensure that all goods and services purchased for the ward are properly delivered and rendered;

e. as required by the court, and pursuant to section to post a bond sufficient to protect the ward's estate;

f. within 30 days of appointment, to file an inventory of the ward's assets;

g. to file annual financial accountings with the court including a list of all financial transactions made on behalf of the ward, identifying the purpose of each transaction.

h. to establish separate bank accounts for each ward and not commingle funds of wards;

i. to establish interest bearing accounts for wards when possible;

j. to establish accounts as guardian accounts, in the name of the public guardian and the ward;

k. to make all payments made by public guardians on behalf of wards by check;

l. when the financial assets of the ward are of sufficient amount, to establish a savings or investment package for the ward, considering the safety of funds, highest rate of return, and eligibility for public benefits; if assets exceed $ 25,000, to consult with a professional financial planner.

2. Disposition of property

a. A ward's preferences with regard to the disposition of property shall be followed unless the statutory requirements found at 14 VSA 2881 are met. If they are met, a public guardian with authority to dispose of the ward's real property shall not sell the ward's real estate or any interest therein before first trying to ascertain what is known about the ward's current or past wishes, preferences or values with respect to such property and attempting to decide as the ward would if able. If no evidence of the ward's prior wishes exists, or if the ward's stated preferences are likely to result in harm to the ward, the public guardian shall choose a course of action which the public guardian believes will benefit the ward most and offer the greatest opportunity for the ward's independence and self-determination.

b. Court approval shall be obtained prior to all sales, leasing or mortgaging of real property and such approval may be sought only under the following circumstances:

(1) When the personal property of the ward is insufficient to pay his or her just debts, together with the charges of managing his or her estate, or when it appears better for the ward that his or her real estate or some part thereof be sold for that purpose in lieu of disposing of the personal estate; or

(2) When the personal property of the ward is insufficient to pay the expenses incurred in the care, support or maintenance of the ward, together with the charges of managing his or her estate; or

(3) When the personal estate of the ward is insufficient to pay the expenses of maintaining the ward and his family, or of educating a minor ward as his circumstances require;

(4) When it appears that it would be for the benefit of the ward that real estate or any part thereof be sold and the proceeds thereof reinvested.

(5) When consistent with the ward's preferences or prior wishes, resources may be transferred as permitted by law to a non-institutionalized spouse or other eligible recipients in order to obtain or maximize eligibility for long term care Medicaid benefits. When the ward is non-communicative and has not expressed a prior preference with respect to disposition of the property, on request of the community spouse and upona finding by the Office that transfer would not adversely affect the quality of the ward's care, transfer of the resources to the community spouse is permitted.

c. In considering whether or not to dispose of property, the public guardian shall consider at least the following factors:

(1) the current desires of the ward with respect to the sale of the property;

(2) the likelihood that the ward will need or benefit from the property in the future;

(3) the provisions of the ward's estate plan, if any;

(4) the tax consequences of the sale;

(5) the condition of the entire existing estate of the ward;

(6) the ability of the ward or the ward's estate to maintain the property;

(7) the availability and appropriateness of alternatives to the sale of the property;

(8) the potential for deterioration, waste or dissipation of the property if it is retained;

3. Public benefits. According to the ward's wishes when known, public guardians shall:

a. ensure wards receive all public benefits for which they are eligible, and avail themselves of agencies or persons with the expertise to pursue the application and appeals process when necessary to obtain such benefits;

b. when funds are available and according to the wishes of the ward when known, establish a burial account or pre-paid funeral account;

c. appeal all adverse decisions by agencies affecting the ward's public benefits if they appear erroneous.

If denial or termination of benefits resulted from inaction or incorrect action by the public guardian, the Office of Public Guardian will secure counsel for the ward to pursue appeals.

4. Contracts

In considering whether or not to approve or withhold approval for a contract the public guardian shall consider:

a. The ward's wishes and preferences;

b. the potential benefits and risks to the ward;

c. the ability of the ward to comprehend any or all of the terms of the contract;

d. the ability of the ward to comply with the terms of the contract.

5. Recovering debts and suing on behalf of ward

A public guardian having authority to recover debts, etc., and sue on behalf of a ward shall:

(a) aggressively pursue recovery of all debts or demands due a ward and shall obtain counsel for a ward when necessary;

(b) ensure a ward has counsel to protect his or her interests in legal actions;

(c) pursue legal action when necessary to recover damages for injury to the person or property of the ward;

(d) compromise, release or discharge actions by or against the ward as the public guardian deems just and beneficial to the ward.

F. Securing medical services and authorizing treatment

1. A public guardian with responsibility for a ward's personal care shall:

a. ensure the ward receives needed medical, dental, and mental health care, including regular preventive services;

b. both examine the medical records of the ward and confer with the attending physician and other caregivers at least twice per year.

2. Medical decisions.

a. A public guardian with responsibility for consenting to surgery and other medical procedures shall, relying on what is known about the ward's current or past wishes, preferences or values, attempt first to decide as the ward would if able.

However, if:

a) no there is no evidence of the ward's prior wishes; or,

b) the ward's stated preferences are likely to result in serious harm to the ward and, in the judgement of the public guardian, the ward is incapable of comprehending the risks and benefits of a particular treatment,

the public guardian shall choose a course of action which the public guardian believes will benefit the ward most and offer the most opportunity for independence and self-determination.

b. In considering a ward's prior wishes, the public guardian shall consider wishes expressed in a living will, a durable power of attorney or any other oral or written declaration of the ward's intent or preferences.

c. The direction of a duly appointed durable power of attorney for medical decision making shall be followed except when:

(i) the public guardian has reason to believe the attorney in fact is not following the ward's instructions;

(ii) the ward has expressed a wish to revoke the durable power of attorney;

(iii) the public guardian has reason to question the validity of the durable power of attorney.

In such circumstances, the public guardian shall petition the probate court to suspend or revoke the power of attorney.

d. The public guardian shall consider information arising out of personal contact with the ward or out of contact with the family or close friends of the ward, as well as information and opinions imparted by attending physicians or other relevant medical professionals.

e. When a ward whose right to consent to surgery or other medical procedures has been restricted pursuant to 14 VSA 3069(b)(5) is admitted to a hospital for non-emergency surgery or other non-emergency medical procedures requiring consent, the guardian may give such consent upon the advice of the treating physician, after obtaining a second opinion, and only with permission of the probate court.

f. When a ward's religious beliefs prohibit certain medical treatment (such as blood transfusions for a Jehovah's Witness or medical treatment for a Christian Scientist) the public guardian shall petition the probate court for permission to withhold treatment based on any preferences or wishes of the ward and only after discussing the situation with available family of the ward.

To the degree possible, public guardians will establish the nature of such religious beliefs and the ward's preferences as soon as possible and provide direction to health care providers in advance. In emergencies, when there is doubt about the ward's beliefs, necessary care must be provided pending clarification.

3. The Office shall request a second opinion and obtain the permission of the probate court before consenting to any of the following medical treatments, whether they are to be performed in a hospital or any other setting, and the Office shall request that the court hold a hearing:

a. interventions which may create significant emotional, behavioral, or psychological trauma;

b. any treatments which require restraints, either chemical or mechanical, or any behavior modification. Before these treatments shall be authorized, the guardian shall explore and exhaust all less restrictive alternative interventions.

c. interventions which pose a significant risk to the ward, due to the ward's condition or unique vulnerabilities, such as allergic reactions, poor physical health, bleeding problems, and heart conditions;

d. administration of anti-psychotic or psychotropic drugs, and in such cases will attempt to obtain a second opinion from a psychiatrist;

e. experimental treatment or medications;

f. any other treatment or intervention which is objected to by the ward or family.

g. any proposed restriction or witholding of medical treatment in any setting, including requests to institute "do not resuscitate" or "no code" status for a ward, or to terminate, withdraw, or not extend life supporting treatment, including food and hydration.

4. Emergency Medical Treatment

a. "Emergency" is defined as a situation where irreparable physical or mental harm is likely to occur to a ward in less than 72 hours unless appropriate intervention occurs.

b. Notwithstanding section 3, in emergencies, a public guardian with authority to consent to surgery and other medical procedures may authorize medical treatment within the time frame allotted by the emergency. In all emergency situations the public guardian shall speak with the treating or attending physician before consenting to any medical treatment and, as soon as practicable, the guardian shall notify the probate court in writing of action taken in response to an emergency.

c. If medical treatment authorized in an emergency becomes on-going treatment, the public guardian will seek permission from the probate court as outlined in Section 3 above and 14VSA 3073.

G. Modifying, transferring and terminating the guardianship

1. The public guardian shall, on at least a quarterly basis, evaluate the need for continuation or modification of guardianship and document such evaluation in the ward's file. When the public guardian believes a modification or termination of the guardianship is appropriate, he or she shall petition the probate court promptly for such a change and obtain legal counsel for the ward.

2. The public guardian shall make every reasonable effort to locate a suitable and willing guardian from the private sector for each ward. This effort shall continue through the term of appointment and shall be documented in reports to the probate court.

3. Upon locating a suitable guardian from the private sector the public guardian shall petition the probate court to transfer the guardianship and, upon approval, submit a final accounting to the probate court, inform the ward in writing of the reason for and effective date of the transfer, and meet with the new guardian to explain the ward's situation and the duties of a guardian.

H. Death of a ward

Upon the death of a ward, a public guardian shall:

1. notify the probate court by submitting a certified copy of the deceased ward's death certificate;

2. notify any agency providing benefits to the ward, including the Social Security Administration, the Veteran's Administration, and the Department of Social Welfare;

3. make arrangements with a funeral home if no family or friends are available to make such arrangements;

4. apply for burial funds if necessary;

5. turn the ward's assets over to the individual designated by the probate court to receive such assets;

6. with the permission of the probate court, pay burial costs;

7. submit a final accounting of the ward's estate to the court;

I. Mandatory reporting of abuse and unlicensed facilities

1. Public guardians are mandatory reporters of abuse, neglect or exploitation per 18 VSA 1150 et. seq.

2. Public guardians are mandatory reporters of unlicensed nursing homes or residential care homes per 18 VSA 2005b.

13-003 Code Vt. R. 13-110-003-X

Effective Date: January 28, 1991 (SOS Rule Log # 91-5)

Statutory Authority: 14 V.S.A. C. 111