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Rule 6.1 – Representation by Attorneys and Guardians Ad Litem in Specified Proceedings

May 14, 2021 | Family Law, Vermont

(a)Applicability. This rule applies to all proceedings involving adults under (1) Subchapter 12 of 14 V.S.A. Chapter 111 (Involuntary Guardianships), (2) 18 V.S.A. Chapters 179 and 181 (Involuntary Treatment), (3) 18 V.S.A. Chapter 204 (Sterilization), (4) 18 V.S.A. Chapter 206 (Care for Mentally Retarded Persons), and (5) 18 V.S.A. Chapter 215 (Protective Services).
(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 sua sponte. In all cases other than where 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 consents to the appointment and the court in its discretion finds that the affidavit provides sufficient support for the motion.

Hearing 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 mertits. Civil Rule 78(b) shall not apply to these motions.

When served upon the respondent, the motion and affidavit must include or be accompanied by a clear explanation that the respondent need not consent to the motion, and that the respondent has a right to appear in person before the court to object, or may object by letter.

(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)Selection, Replacement, Discharge. The guardian ad litem shall be a disinterested person not related to any party. The guardian may be selected and replaced as appropriate by the court in its discretion. 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.
(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, waived 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;
(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) of this subdivision.
(3)Approval Without Respondent’s Consent of Constitutional or Other Important Waivers. A waiver or admission listed in paragraph (2) of this subdivision 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. Each 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, nor 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. The guardian ad litem shall not be asked for nor provide an opinion on the merits to the court in any contested proceeding to which this rule applies. The guardian ad litem may state his or her opinion as to the proper disposition of the case and the reasons therefor at the disposition phase of a proceeding. The guardian ad litem shall ensure that the respondent’s attorney provides effective representation on behalf of the respondent. 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 attorney. If the guardian ad litem at any time is not satisfied that the respondent’s legal rights are being effectively represented, and the respondent expressly consents or is unable to communicate effectvely with respect to the representation, the guardian ad litem shall so advise the court in open court, orally or in writing. The guardian ad litem’s reasons shall be based upon evidence that is in the record and the guardian ad litem may not disclose confidential or privileged information to the court.
(4)Guardian Ad Litem as Witness. A guardian ad litem may be called as a witness only when his or her testimony would be directly probative of the respondent’s best interest, and no other person could be employed or subpoenaed to testify on the same subject matter. When a guardian ad litem is to be called as a witness, the court may appoint a new guardian ad litem.
(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 the Vermont Rules of Evidence and subject to paragraph (4) of this subdivision.
(f)Record of Proceedings. The court shall make a verbatim record of all proceedings under this rule.

Vt. R. Fam. Proc. 6.1

Added Aug. 29, 1995, eff. Dec. 1, 1995.