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

REPORTER'S NOTES--2022 AMENDMENT: The Vermont Supreme Court promulgated V.R.P.P. 80.9 (Representation by Guardians ad Litem of Minors) and V.R.P.P. 80.10 (Representation by Attorneys and Guardians ad Litem of Adults in Specified Proceedings) on June 12, 2020, effective August 18, 2020. Prior to that time, the appointment of guardians ad litem and attorneys in these probate proceedings were governed by V.R.F.P. 6 and 6.1. In light of the promulgation of probate rules for the appointment of guardians in probate guardianship proceedings, it is no longer necessary for the family rules to apply to these proceedings. In addition, the title of 18 V.S.A. Chapter 206 is amended to be consistent with legislation enacted in 2014. 2013, No. 96 (Adj. Sess.), § 114. Rule 6.1(c)(1) is amended to replace the reference to V.R.C.P. 78(b) (Disposition of Written Motions With or Without Hearing), which was abrogated by order of June 7, effective August 9, 2021, with a reference to V.R.C.P. 7(b)(6) (Evidentiary Hearings) added by that order and embodying its relevant provisions in revised form. See Reporter's Notes to 2021 amendment of V.R.C.P. 7(b) and abrogation of V.R.C.P. 78.

REPORTER'S NOTES: Rule 6.1 is adopted and Rule 6 is simultaneously amended to separate the procedures and roles for attorneys and guardians ad litem in cases involving minors from those in cases involving adults. Rule 6 will now govern only Family Court cases involving minors (juvenile proceedings and guardianships of minors). Rule 6.1 applies to the appointment of counsel and guardians ad litem in the specific proceedings concerning adults that were formerly listed in Rule 6(a) and are now listed in Rule 6.1(a). The rule is not intended to address the power of a court to appoint a guardian ad litem in other proceedings as a matter of inherent power or under Rule 7, V.R.C.P. 17(b), D.C.C.R. 17, or V.R.P.P. 18(c). See, e.g., State v. Hackett, 141 Vt. 223, 446 A.2d 369 (1982) (hospitalization hearing under 13 V.S.A. § 4820); cf. Guardianship of H.L., 143 Vt. 62, 460 A.2d 478 (1983) (appointment of guardian ad litem for incompetent parent in probate court guardianship proceeding for minor child); In re J.S., 139 Vt. 6, 420 A.2d 870 (1980) (appointment of guardian ad litem for juvenile in placement proceeding over natural guardian's dissent). See also 14 V.S.A. § 2657. By simultaneous amendments of Rule 13(b) and V.R.P.P. 18(d), the rule is made applicable to Probate Court guardianship proceedings. Rule 6.1(b) is taken from Rule 6(b), substituting “respondent” as the person for whom counsel is to be appointed. (Throughout this rule, the inclusive term “respondent” is used to denote proposed wards and others to whom statutory provisions not involving appointment of a general guardian apply.) As to the importance of counsel and the need for appointed counsel, see Reporter's Notes to Rule 6(b). Rule 6.1(c)(1) is similar to Rule 6(c)(2). See, generally, Reporter's Notes to that rule. In recognition of its application to adults, the present rule provides that a “respondent” may petition for appointment of a guardian ad litem. Like Rule 6(c)(2), the rule also permits any party to petition for appointment of a guardian ad litem, thus permitting the party seeking appointment of a general guardian to assure that the position of the respondent was properly presented. The rule also requires only the “opportunity” for hearing, recognizing that to require a hearing in every instance may be unnecessary in the absence of objection by the respondent and may create timing problems. Rule 6.1(c)(2) sets forth a standard for the appointment. The court must find that the respondent either does not understand the proceedings or is not able to communicate effectively with counsel. The language of the standard is taken from Morissette v. Morissette, 143 Vt. 52, 463 A.2d 1384 (1983), and State v. Hackett, supra, and is similar to that of 14 V.S.A. § 3066. The definitions of “communicate effectively” and “communicative” apply not only to this determination but to decisions that must be made by the guardian and counsel under Rule 6.1(d)(3) and (e)(1), (2). Note that a respondent who is “communicative” on some aspects of the matter must be permitted to participate as to those aspects even when a guardian ad litem has been appointed. The purpose of the appointment of a guardian is to facilitate the respondent's conduct of the case; that goal is best achieved by limiting the guardian's actions to those situations in which the respondent is incapable of participating. See discussion of Rule 6.1(e)(1) below. Rule 6.1(c)(3) requires that a person appointed as guardian ad litem be “disinterested” and not related to the parties. The purpose of this provision is to permit the court to consider possible conflicts of interest that may arise when a relative, or a state agency in a custodial relationship, serves as guardian. The remainder of paragraph (3) is similar to Rule 6(c)(3), except that it incorporates the standard of Rule 6.1(c)(2). Note that the court must find that the respondent is both comprehending and communicative before discharging the guardian. Cf. State v. Ladd, 139 Vt. 642, 433 A.2d 294 (1981); Reporter's Notes to Rule 6(c)(3). Rule 6.1(d)(1) is taken from Rule 6(d)(1) without change. See Reporter's Notes to Rule 6(d)(1). Rule 6.1(d)(2) is taken from Rule 6(d)(3), as amended. While a hearing need not be held, the court must determine that there is a factual basis for each criterion. See, generally, Reporter's Notes to Rule 6(d)(3) and 1991 emergency amendment. The present rule contains no equivalent of Rule 6(d)(2) covering disagreements between respondent and guardian, in light of the limitations on the guardian imposed by Rule 6.1(e)(1). Rule 6.1(d)(3) is consistent with the limitations on the guardian contained in Rule 6.1(e)(1). The provision is adapted from Rule 6(d)(4), with provisions pertinent only to minors omitted. Before granting approval under this paragraph, the court must make the findings required by Rule 6.1(d)(A)-(C) for a waiver or admission by a communicative respondent. Cf. Reporter's Notes to Rule 6(d)(4). The court must also find that the respondent is noncommunicative as to the particular matter that is the subject of the waiver or admission. Cf. Rule 6.1(e)(1). The first sentence of Rule 6.1(e)(1) is adapted from Rule 6(e)(1). See Reporter's Notes to that provision. The second sentence is unique to the present rule. It sets forth the limitation that when a respondent is communicative, as defined in paragraph (c)(2), regarding any aspect of the proceedings, the guardian ad litem, as to that aspect of the proceedings, must act consistently with the expressed wishes of the respondent and may not take positions without the respondent's consent. This provision reflects the deference to the due process and privacy interests of an allegedly incompetent person recognized in State v. Ladd, supra. The effect of the provision is that a partially communicative respondent must be permitted to participate in the proceedings to the extent that he or she is communicative, but the guardian continues to exercise judgment, consistent with the scope and objectives of the representation, on issues as to which the respondent is noncommunicative. This standard does not require that the respondent be capable of providing clear direction on every aspect of the representation. Rather, in the course of resolving the details, the attorney and the guardian ad litem should assure that their decisions are consistent with the respondent's scope and objectives. Thus, the role of a guardian ad litem of an adult in proceedings under Rule 6.1 differs from the role of a minor's guardian under Rule 6. Under Rule 6 the guardian may, in some settings, supersede the expressed wishes of the minor. Under Rule 6.1 the guardian cannot supersede the wishes of a respondent who is communicative. In administering this provision, all concerned should be sensitive to the delicate balance in the relationship among the attorney, the guardian ad litem, and the respondent. A guardian ad litem has been appointed under Rule 6.1(c)(1), (2), because the respondent is basically noncomprehending or noncommunicative. Thus, in general, as Ethical Consideration 7-12 of the Vermont Code of Professional Responsibility makes clear, the guardian becomes in effect the client and must determine the needs and interests of the respondent and communicate them to the attorney for the latter's representation to be adequate. As EC 7-12 also points out, however, the lawyer should seek the aid of a disabled client on matters that the client is capable of understanding and participating in. It is up to the guardian ad litem and the attorney to determine when a respondent is partially communicative and to defer to the respondent's wishes in those situations. For other limitations on the role of guardian, see the Reporter's Notes to Rule 6(e)(1). Rule 6.1(e)(2) is taken from Rule 6(e)(2), with the addition of prohibitions against ex parte contact with the court and disclosures of confidential information without consent of both the respondent and counsel. These provisions state the existing law and are intended for the guidance of lay guardians. A guardian ad litem may contact court personnel other than the judge for information or direction on administrative issues that do not go to the merits. Rule 6.1(e)(3) is adapted from portions of Rule 6(e)(3) applicable to juvenile proceedings. It reflects the view that disabled adults should receive the same protections as children in juvenile proceedings. Of course, at all times the guardian is controlled by the requirement of Rule 6.1(e)(1) that the guardian must act in conformity with the expressed wishes of a communicative respondent. The rule also contains a proviso requiring the guardian of a noncommunicative or consenting respondent to assure effective representation by the respondent's attorney and to advise the court of any problems in that regard. The guardian may communicate in open court, orally or in writing. The latter provision is intended to offset the potentially intimidating effect of a court appearance on a lay guardian. See simultaneous amendment of Rule 6(e)(3). To protect the attorney-client relationship, such representations must be based on evidence in the record and must not involve disclosure of confidential information. Rule 6.1(e)(4), (5), and (f) are taken from Rule 6(e)(4), (5), (f), with minor verbal changes. See Reporter's Notes to those provisions. In the Probate Court, the method of making and preserving the record is governed by V.R.P.P. 47(d), (e).