Rule 80.10 - Representation by Attorneys and Guardians ad litem of Adults in Specified Proceedings(a)Applicability. This rule applies to all proceedings involving adults under Subchapter 12 of 14 V.S.A. Chapter 111 and 18 V.S.A. Chapters 215 (Protective Services) and 231 (Advance Directives). (b)Appointment of Counsel. In all proceedings to which this rule applies, the court shall assign counsel pursuant to Administrative Order No. 32 to represent the respondent unless counsel has been retained by that person. (c)Appointment of Guardian Ad Litem. (1)Appointment. In all proceedings to which this rule applies, the respondent, or an attorney who has been appointed or retained to represent a respondent, or any other attorney or party, may file and serve a motion, supported by affidavit, requesting the appointment of a guardian ad litem. The court may raise the issue on its own motion. In all cases other than where the respondent has personally filed the motion or consents in open court, the motion and affidavit shall be served upon the respondent. The motion shall not be granted except after opportunity for hearing. No hearing is required when the respondent does not object any later than 7 days prior to a hearing date for the appointment of a guardian ad litem, and the court in its discretion finds that the affidavit provides sufficient support for the motion. on these motions shall be set expeditiously, and sufficiently in advance of the hearing on the merits so as to allow the guardian ad litem adequate time to prepare for the hearing on the merits.
When served upon the respondent, the motion and affidavit must include or be accompanied by the statement that a guardian ad litem will be appointed if the respondent does not timely file a written objection with the court and the court finds sufficient support for the motion. If the respondent files a written objection, the respondent has a right to appear in person before the court.
(2)Standard. 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. (3) Appointment, Replacement, Discharge. The court in its discretion may appoint, replace, or discharge a guardian ad litem. The court shall discharge the guardian ad litem immediately upon a finding that the respondent understands the nature of the proceeding and can communicate effectively with counsel. Any party may file a written objection to the appointment, replacement, or discharge of a guardian ad litem provided the written objection is filed with the court no more than 7 days after the appointment, replacement, or discharge of a guardian ad litem if no prior objection to the appointment, replacement, or discharge has been filed by the party. If a written objection to the appointment, replacement, or discharge has been timely filed, and a written request for hearing has been timely filed by any party, the court shall hold a hearing.(d)Settlements, Compromises, and Waivers. (1)In General. In any proceeding in which a guardian ad litem has been appointed pursuant to these rules, the court shall review all settlements, compromises, waivers of evidentiary, statutory, constitutional or common-law privileges, stipulations, and other decisions affecting the substantial rights or interests of the respondent. (2)Waivers of Constitutional and Other Important Rights. When a respondent or guardian ad litem wishes to waive a constitutional right of the respondent, enter an admission to the merits of a proceeding, or waive patient's privilege under V.R.E. 503, the court shall not accept the proposed waiver or admission unless the court determines, after opportunity to be heard, each of the following: (A) that there is a factual and legal basis for the waiver or admission; (B) that the attorney for the respondent has investigated the relevant facts and law and consulted with the respondent and guardian ad litem, and that the guardian ad litem has consulted with the respondent; (C) that the waiver or admission is in the best interest of the respondent; and (D) that the waiver or admission is being entered into knowingly and voluntarily by the respondent and also by the guardian ad litem, except as set forth in paragraph (3). (3)Approval Without Respondent's Consent of Constitutional or Other Important Waivers. A waiver or admission listed in paragraph (2) may be approved with the consent of the guardian ad litem but without the consent of the respondent only if the respondent is unable to communicate effectively with respect to the waiver or admission. (e)Role of Guardian Ad Litem. (1)In General. 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. (2)Duties Generally. The guardian ad litem shall meet with the respondent, the respondent's attorney, and others who may be necessary for an understanding of the issues in the proceeding. The guardian ad litem shall not contact the court ex parte, or disclose confidential or privileged information to opposing parties without the express consent of the respondent after consultation with counsel. The guardian ad litem shall be familiar with all pertinent pleadings, reports, and other documents. The guardian ad litem shall discuss with the respondent and the respondent's attorney all options which may be presented to the court, and shall assist the attorney in advising the respondent regarding those options.(3)Courtroom Role. In any proceeding governed by this rule, the guardian ad litem may state his or her position or opinion on the merits of any issue before the court in which the respondent has not effectively communicated his or her wishes. Such statement by the guardian ad litem shall be based upon the evidence which is in the record. At any hearing the court may inquire, subject to the provisions of this rule, whether the guardian ad litem is satisfied with the representation of the respondent by the attorney, including but not limited to the presentation of evidence made by the respondent's attorney. If the guardian ad litem at any time is not satisfied that the respondent's rights and interests are being effectively represented, the guardian ad litem shall so advise the court in open court, orally or in writing. (4)Guardian Ad Litem as Witness. A guardian ad litem may be called as a witness only when that person's testimony would be directly probative of the respondent's best interest, and no other persons could be employed or subpoenaed to testify on the same subject matter. (5)Reports Prepared by Guardian Ad Litem. If the guardian ad litem prepares a written report, it shall be submitted to the court only by agreement of the parties or pursuant to Rule 43(a) and other provisions of these Rules.Adopted June 12, 2020, eff. 8/18/2020; amended May 8, 2023, eff. 5/8/2023.Reporter's Notes
Rule 80.10 is adapted from V.R.F.P. 6.1. to incorporate that rule as appropriate in probate proceedings. See Rule 80.10(a) and Reporter's Notes to Rule 80.9(a).
Rule 80.10(c)(1) departs from V.R.F.P. 6.1(c)(1) by requiring the respondent to object, rather than consent, to an appointment without hearing. The reference to V.R.C.P. 78(b) in paragraph (c)(1) is not carried forward because, unlike the family rules, the probate rules do not generally incorporate the civil rules.
Rule 80.10(c)(3) differs from the family rule by giving the court more discretion in selecting a guardian but providing a procedure for a written objection and hearing on the court's action. Rule 80.10(e)(3) gives the guardian more opportunity to address the court than does the family rule. As with V.R.P.P. 80.9, the provisions of V.R.F.P. 6.1(d)(5) for replacement of a guardian ad litem and of V.R.F.P. 6.1(f) for a verbatim record are not carried forward. See Reporter's Notes to V.R.P.P. 80.9.