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In Re Guardianship of A.S.

August 14, 2012

IN RE GUARDIANSHIP OF A.S.


APPEALED FROM: Superior Court, Rutland Unit, Probate Division Trial Judge: Kevin P. Candon

The opinion of the court was delivered by: Paul L. Reiber, Chief Justice

In re Guardianship of A.S. (2011-183)

2012 VT 70

ENTRY ORDER

SUPREME COURT

In the above-entitled cause, the Clerk will enter:

¶ 1. Guardian appeals an order of the probate division directing that a court-ordered guardianship evaluation performed by Rutland Mental Health Services, Inc. (RMHS) be placed with the court under seal. Guardian argues that the court exceeded its authority, or abused its discretion to the extent that it had any, in directing RMHS to return the evaluation to the court to be sealed. We reverse.

¶ 2. Throughout primary and secondary school, the ward, A.S., qualified for special education services because of a developmental disability. In 2003, when she turned eighteen, the probate court established an involuntary guardianship appointing her parents as guardians. At the time, a voluntary guardianship was not permitted for persons diagnosed as "mentally ill or mentally retarded."*fn1 14 V.S.A. § 2671(d)(1) (2002), amended by 2009, No. 97 (Adj. Sess.), § 9. In considering the involuntary guardianship, the court ordered RMHS to complete an evaluation. RMHS's report concluded that A.S. had a developmental disability allowing for a guardianship to be established.

¶ 3. In 2010, the Legislature amended the statute governing voluntary guardianships by removing the language that prohibited persons with mental disabilities from obtaining a voluntary guardianship, and instead providing that a person need only understand the "nature, extent, and consequences of the proposed guardianship." 14 V.S.A. § 2671(d)(2). Following this amendment, A.S. filed a motion seeking to "amend" her involuntary guardianship so as to create a voluntary guardianship. After a hearing in September 2010, the court ordered an evaluation of A.S. While the court ultimately granted the voluntary guardianship petition in January 2011, it was the evaluation stemming from the petition that precipitated the events leading to this appeal.

¶ 4. A short review of the statutory provisions pertaining to guardianships is helpful to understanding the issues. The probate division considers evaluations in determining whether to authorize either an involuntary or voluntary guardianship. The scope of the evaluation depends upon the type of guardianship being considered. In the case of an involuntary guardianship, the evaluation must "describe the nature and degree of the respondent's disability, if any, and the level of the respondent's intellectual, developmental, and social functioning." 14 V.S.A. § 3067(c)(1). The evaluation is then admitted into evidence at the guardianship hearing to help the court determine if the respondent is a person in need of a guardian. Id. § 3068(c). Modification or termination of an involuntary guardianship under § 3077 similarly triggers this same evaluation. Id. § 3077(c).

¶ 5. In contrast, following a hearing on a petition for a voluntary guardianship, the court may order an evaluation, but "[t]he scope of the evaluation shall be limited to whether the petitioner understands the nature, extent and consequences of the guardianship requested and the procedures for revoking the guardianship." Id. § 2671(e). Thus, as between the two types of guardianships, the evaluation conducted to establish a voluntary guardianship is less comprehensive than the evaluation conducted to establish, modify, or terminate an involuntary guardianship.

¶ 6. Following the request to convert A.S.'s involuntary guardianship into a voluntary one, the probate court issued an order for RMHS to evaluate A.S. Unfortunately, the desired scope of the requested evaluation was not entirely clear because the order cited provisions from both the voluntary and involuntary guardianship statutes. The order specified that RMHS was to determine if A.S. "understands the nature, extent, and consequences of a guardianship and the procedures for revoking the guardianship"--language taken nearly verbatim from § 2671, the statutory provision governing voluntary guardianship. But the order also cited language from § 3067(c), the statute governing involuntary guardianships, which, as noted, requires a more detailed evaluation describing "the nature and degree of the respondent's disability, if any, and the level of the respondent's intellectual, developmental, and social functioning."

¶ 7. In response to the court's order, RMHS conducted an evaluation addressing the nature and degree of A.S.'s disability, consistent with § 3067(c)(1) but beyond the scope of an evaluation under § 2671(e). Guardian objected to the evaluation, alleging that it exceeded the scope of § 2671(e). He requested that the court return the evaluation to RMHS or forward it to A.S. and her guardians, but not retain any copy. The court, reasoning that the evaluation should have been limited to the issues enumerated in § 2671(e), ordered that the evaluation be returned to RMHS with the direction that any reference to the nature of A.S.'s intellectual, developmental, or social functioning be deleted. RMHS filed a motion for clarification asking the court for guidance on what to do with the evaluation and related case notes since RMHS was unclear about whether the evaluation triggered a legal obligation on its part under the Regulations Implementing the Developmental Disabilities Act of 1996.*fn2 RMHS asked if it should destroy the evaluation, return it to the court under seal, or maintain it as part of the ward's file.

ΒΆ 8. On January 19, 2011, the probate court granted guardian's petition for a voluntary guardianship, appointing A.S.'s parents as guardians. On January 27, notwithstanding guardian's objection, the court ordered that the initial evaluation and related case notes be returned to the court under seal. Guardian filed a Vermont Rule of Probate Procedure 60(b) motion to set aside the January 27 order, claiming it was beyond ...


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