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Rep. Donahue introduces bill to unify guardianship process for adults with developmental disabilities
Summary
Representative Anne Donahue told the House Judiciary Committee she will introduce legislation to address what she called an inequity in Vermont guardianship law that treats adults with developmental disabilities differently depending on whether a private individual is available to serve as guardian.
Representative Anne Donahue of Northfield introduced a bill to the House Judiciary Committee to address differences between probate and family-division adult guardianship procedures for people with developmental disabilities.
The measure would either transfer all adult guardianship cases to the probate division so the same voluntary-guardianship process would apply regardless of whether a private guardian is available, or else amend the family-division statute to allow the same voluntary-guardianship option now available only in probate. "The basics of this bill are really to address a pretty significant inequity, injustice, really, in terms of self determination, of people with a developmental disability," Donahue said during the committee meeting.
Nut graf: Donahue said the distinction matters because probate court can grant a voluntary guardianship — which an individual can revoke — while the family-division route, used when no private individual is available and the state agency becomes guardian, currently lacks a voluntary option. "A voluntary guardianship is revocable by an individual, an involuntary one isn't," she said, noting the legal and personal consequence of that difference under federal law.
Under current practice described in the committee meeting, the probate division oversees guardianships when a private person is available to serve as guardian; where no private candidate exists, the family division handles the case and the Department of Disabilities, Aging, and Independent Living (DAIL) typically would serve as guardian under statute. Donahue told the committee that a 2010 statutory change created the voluntary-guardianship option but applied it only to probate-division cases; she said the bill seeks to correct that discrepancy.
Donahue said the proposal grew out of concerns raised by a long-serving guardian, David Searls, who brought the issue to her attention. She said Searls, who she said has served as a guardian since 2003, would be available to testify. Representative Mary Howard is listed as a cosponsor, Donahue said.
Committee members asked procedural questions about who files guardianship petitions and about the role of the petitioning adult's capacity. One member asked whether an adult petitions for their own guardianship or whether another party files the petition; Donahue said an adult can file a petition for themselves but that petitions filed by others — when the person cannot consent or understand — would be treated as involuntary. The committee also discussed whether the measure might increase burdens on DAIL; Donahue said she expects DAIL would likely want to testify and said the equity argument is persuasive but that some parties may raise concerns about administrative burdens.
Donahue told the committee staff will try to schedule the bill for a committee hearing "whether it's gonna be crossover or during their time after crossover," and she said DAIL would probably be invited to testify. No formal motion or vote occurred in the recorded discussion.
Ending: The committee did not take action on the bill during the session. Donahue said she will pursue scheduling a hearing and will bring witnesses, including the sponsoring guardian and likely DAIL, to discuss the proposal and any operational questions.
