13-009 Code Vt. R. 13-150-009-X - PROTECTIVE SUPERVISION OR GUARDIANSHIP FOR MENTALLY RETARDED PERSONS
Section 1 Title
These rules of the Department of Mental Health shall be known as "Rules Governing Protective Supervision or Guardianship for Mentally Retarded Persons."
Section
2 Authority
These rules are promulgated by the Commissioner of Mental Health through Chapter 25 of Title 3 of Vermont Statutes Annotated and pursuant to his authority under Chapters 171, 173 and 177 of Title 18 of Vermont Statutes Annotated and Chapter 49 of Title 33 of Vermont Statutes Annotated.
Section 3
Purpose and Scope
The Vermont protective services statute provides for the appointment of the Commissioner of Mental Health as the guardian of a mentally retarded adult under certain circumstances. The Court appoints the Commissioner to make decisions on behalf of the mentally retarded person when no responsible adult is available to assist a mentally retarded person in the exercise of his or her rights as a citizen, and where there is a demonstrated need for guardianship or protective supervision. The degree of assistance to and control over the mentally retarded person may range from limited supervision to the establishment of a full guardianship.
These rules are intended to implement the statute in a manner consistent with the Department of Mental Health policies regarding the provision of services to mentally retarded persons. The following principles shall be considered in the exercise of guardianship authority or protective supervision of a mentally retarded person:
1. Mentally retarded persons are assumed
capable of exercising the same human and civil rights as other citizens. The
independent exercise of those rights should be limited only to the extent of
the individuals's demonstrated incapacity.
2. The goal of guardianship or protective
supervision is to increase the client's ability to make independent decisions
and, when appropriate, to reduce or terminate the guardianship for protective
supervision as soon as possible.
Section 4 Definitions
(a) "Commissioner": The Commissioner is the
Commissioner of the Vermont Department of Mental Health.
(b) "Director": The Director is the Director
of the Division of Community Mental Retardation of the Vermont Department of
Mental Health.
(c) "Interested
Person": An interested person is a responsible adult who has a direct interest
in a mentally retarded person and includes, but is not limited to, the mentally
retarded person, a legal representative, a near relative or guardian.
(d) "Client": A client is any mentally
retarded adult in the custody of the Commissioner of Mental Health pursuant to
Chapter 49 of Title 33 of the Vermont Statutes Annotated or any person who is
proposed to be placed in the custody of the Commissioner of Mental Health
pursuant to Chapter 49 of Title 33 of the Vermont Statutes Annotated.
Section 5 Comprehensive Evaluation
(a) The Commissioner of Mental Health shall
arrange for a comprehensive evaluation of the client's need for protective
services upon service of the petition for protective supervision or
guardianship on the Commissioner of Mental Health. The Commissioner shall
ensure that the person or agency conducting the evaluation is not a party to
the proceeding.
(b) The purposes of
the comprehensive evaluation are to describe the respondent's abilities and
level of functioning so that a proper determination can be made of the need for
protective supervision or guardianship and to make recommendations to the
court.
(c) The format of the
evaluation shall be one approved by the Department of Mental Health and shall
include:
(1) a report of the respondent's
general intellectual functioning prepared under the supervision of a
psychologist qualified in the diagnosis of mental retardation;
(2) a report of the respondent's social
history which describes the respondent's experiences with previous educational,
habilitation and residental services;
(3) a report of the respondent's current
developmental functioning, based on the results of a standardized test which
requires actual observation of the respondent's behavior. The report may also
contain information obtained during interviews with the respondent's family and
friends, staff members who provide services to the respondent and others.
Sources of information or conclusions other than those of the evaluator's
personal observation shall be identified in the report.
(4) a report of the respondent's ability to
exercise independently the following skills and responsibilities: the power to
choose or change his or her residence, care, habilitation, education and
employment; the power to sell or in any way encumber his or her real or
personal property; the power to enter into a contract; the power to commence or
defend against judicial actions; and the power to give informed consent to
surgical operations.
(5) The
Commissioner shall return the evaluation to the court within thirty (30) days
of service of the petition for protective supervision or guardianship. If the
evaluation cannot be completed within 30 days, the Commissioner shall report to
the court the reasons for the delay.
Section 6 Commissioner's Delegation of
Authority
The Commissioner's powers and responsibilities under the statute are delegated to protective services specialists employed by the Department of Mental Health and who shall be under the supervision of the Assistant Director of the Division of Community Mental Retardation or such other person designated by the Commissioner.
Section 7 Protective Services Specialist
Caseload
Reasonable client caseloads shall be assigned such that it is possible for protective services specialists to act pursuant to the powers and responsibilities granted to the Commissioner on behalf of each individual client.
Section 8 Client
Contact
(a) The protective services specialist
shall, to the extent possible, fully explain to each client the powers and the
duties of the protective services specialist when protective services are
initiated and semi-annually thereafter. Every such discussion with the client
shall include: a description of each power contained in the court order and the
program goals for the client in each area addressed by the court order; an
explanation of the client's right to voluntarily accept services and assistance
in other areas besides identified in the court order; the client's right to
appeal any decision of the Commissioner or his representative; the client's
right to petition the court to modify or terminate this court order; the
client's right to counsel before and during these proceedings; and a
description of the protective services program including the client's
individual service plan.
(b) The
protective services specialist shall contact each client as individual need
requires, but no less than once every two months.
Section 9 Personal Finances
In any case where the client cannot manage his or her own finances, the protective services specialist shall determine whether a guardian has been appointed to manage the client's financial affairs. If not, the protective services specialist may petition the probate court for the appointment of a private guardian to manage the client's finances. A protective services specialist shall not act as a financial guardian for any client. If the client receives public benefits, and if the client cannot manage his or her own finances, the protective services specialist may apply to the appropriate administrative office for a representative payee to be appointed for the client.
Section 10
Individual Service Plans
(a) The protective
services specialist shall prepare an individual service plan for each client.
The individual service plan may be incorporated into the Individual Program
Plan of a community mental health agency where the District Court has given the
Commissioner the authority, and provided that the protective services
specialist participates in the development of the Individual Program Plan and
expressly authorizes its terms.
(b)
Each plan shall specify the goals which are appropriate for the client's needs
and consistent with the client's rights.
(c) The plan shall include a description of
client needs and the manner in which those needs will be addressed. The plan
will identify each provider of services addressing the client's
needs.
Section 11 Power
to Choose or Change Residence
When exercising the power to choose or change the residence of a client, the protective services specialist may perform the following activities, if appropriate to the client's needs:
(a) Secure for the client assistance in
finding housing. If the service provider which the protective services
specialist locates to help the client find housing is unable to respond to the
client's housing needs in a timely manner, the protective services specialist
may provide direct assistance to the client in locating housing.
(b) Review with the manager or operator of a
residential placement the assistance and programming which the client requires
in a residential environment.
(c)
Make application for, consent to, and enroll the client in private residential
care facilities.
(d) Determine the
client's satisfaction with his or her current residence.
(e) Evaluate the capacity of the client's
current residential program to meet the client's need for assistance and
training.
(f) Explore with the
staff of a residential program the ways in which the client's progress might be
accelerated.
(g) Assist the client
to resolve problems involving housing discrimination.
(h) Petition for the admission of a client to
a state school or hospital only when no other appropriate alternative is
available.
(i) Any other activities
necessary to fulfill the client's needs.
Section 13 Power to Choose or Change
Habilitation or Education
When exercising the power to choose or change the habilitation or education of the client, the protective services specialist may perform the following activities, if appropriate to the client's needs:
(a) Make application for, consent to and
enroll the client in appropriate educational programs and services.
(b) Make application for, consent to and
enroll the client in vocational programs and services.
(c) Make application for, consent to and
enroll the client in community mental health agency programs and
services.
(d) Review the individual
education plan for clients under age twenty-two (22), of the individual
rehabilitation plan for clients receiving services from the Division of
Vocational Rehabilitation.
(e)
Request the assignment of a surrogate parent if necessary to represent the
client's educational interest in the development and review of the individual
education plan.
(f) Arrange for
diagnostic evaluations of the client in order to develop strategies and goals
for educational and vocational training.
(g) Arrange for a request for administrative
hearing or appeal from the Department of Education or Division of Vocational
Rehabilitation or other habilitation or educational program when educational or
rehabilitation services are unnecessarily segregated, delayed or denied, or
when programs are not responsive to the client's abilities and needs, or when
the client shows unsatisfactory progress in the program in which he or she is
placed.
(h) Arrange for and monitor
the tutoring of the client over the age twenty-one (21) in functional
academics.
(i) Any other activities
necessary to fulfill the client's needs.
Section 14 Power to Choose or Change
Employment
In exercising the power to choose or change employment, the protective services specialist may perform the following activities, if appropriate to the client's needs:
(a)
Assist the client to obtain employment.
(b) Confer with the client's employer about
ways to arrange or rearrange the working conditions so as to reasonably
accomodate the client's handicap.
(c) Assist the client to fulfill his or her
tax obligations.
(d) Any other
activities necessary to fulfill the client's needs.
Section 15 Power to Approve or Withhold
Approval of Any Contract
When exercising the power to approve or withhold approval of any contract, the protective services specialist may perform the following activities, if appropriate to the client's needs:
(a) Consult with the client about the need
for and the adviseability of entering into a contract for goods and
services.
(b) Authorize contracts
for the clients when necessary.
(c)
Any other activites [activities] necessary to fulfill the client's
needs.
Section 16 Power
to Commence or Defend Against Judicial Action
When exercising the power to commence or defend against judicial action in the client's name, the protective services specialist may perform the following activities, if appropriate to the client's needs:
(a) Secure legal advice and representation in
any legal or administrative proceeding and explore legal alternatives and
consequences. The protective services specialist shall have the authority to
make controlling decisions about any legal actions, and the course of any
litigation, except as provided in subsection (b), below.
(b) Secure independent legal assistance for
the client in any action in which the client has an interest where the
Commissioner or the Department of Mental Health is named as a party, or in any
action where there is a real conflict of interest between the client and the
protective services specialist. Once the protective services specialist has
assisted the client to obtain legal representation in such an action, the
protective services specialist shall withdraw from further involvement in the
litigation.
(c) Any other
activities necessary to fulfill the client's needs.
Section 17 Power to Consent to Medical
Treatment
When exercising the power to consent to medical treatment, the protective services specialist may perform the following activities, if appropriate to the client's needs:
(a)
Secure the opinions of two licensed physicians about the client's need for
surgery.
(b) Secure from the
treating physician a written statement containing the information necessary to
render informed consent to a surgical operation.
(c) Obtain the informed consent of a near
relative for a surgical operation necessary to save the life, eyesight, hearing
or limb of a client. If the near relative does not consent, and the protective
service specialist, after consultation with the client's physician, determines
the operation should be performed, the protective services specialist shall
petition the District Court for an order permitting the operation or utilize
other appropriate legal means to obtain an order permitting the operation to be
performed.
(d) In an emergency, the
protective services specialist may consent to surgery upon the advise of the
chief medical officer of the hospital.
(e) Arrange for and consent to medical
treatment and dental operations.
(f) The protective services specialist does
not have the independent authority to consent to sterilization, abortion,
lobotomy, ECT, psychosurgery, or experimental treatment.
Section 18 Emergency Medical Treatment
(a) If the client's right to consent to
medical treatment has not been restricted by court order, the client retains
the right to make the decision about emergency medical treatment provided that
his or her medical condition allows for an informed decision. When such a
client is admitted to the hospital for emergency treatment, the chief medical
officer shall determine if the client's medical condition is such that the
client has the capacity to make a responsible decision. If the client has such
capacity, his or her informed consent shall be obtained before treatment is
provided. In such cases, the client's decision shall be determinative, and no
other consent is necessary.
(b) If
the client's right to consent to medical treatment has not been restricted by
court order, but the chief medical officer determines that the client's medical
condition prevents the client from making a responsible decision about the
proposed emergency treatment, the protective services specialist shall make a
diligent effort to consult with a near relative to obtain informed consent for
a surgical operation necessary to save the life, eyesight, hearing or limb or a
client. If after consultation with a near relative informed consent is not
obtained and the protective services specialist determines that the operation
should be performed, the protective services specialist shall petition the
District Court for an order permitting the operation. If such relatives cannot
be found after diligent search, or if there is not enough time to obtain such
consultation or consent or order, or if the proposed operation is not necessary
to save the life, eyesight, hearing or limb or a client, the protective
services specialist may give consent to the emergency treatment upon the advice
of the chief medical officer.
(c)
The protective services specialist shall submit a report in the client case
record detailing the emergency and any actions taken on the client's
behalf.
Section 19
Maintenance of Records
(a) Each client case
record shall contain the following:
(1) The
comprehensive evaluation.
(2) The
order of protective supervision or guardianship and subsequent order of
modification of termination.
(3)
Each individual service plan developed since the order of protective
supervision or guardianship.
(4) A
record of all client contacts.
(5)
Reports of significant occurrences when the protective services specialist has
exercised a power on behalf of the client.
(6) A record of any appeal or request for
review of a decision made by a protective services specialist.
(b) All records containing
personal information about a client shall be confidential.
(c) The disclosure of personal information
from the client's record shall be limited to:
(1) Employees of the Department of Mental
Health who need the information in order to perform their employment
responsibilities.
(2) The client or
the client's attorney or the client's private guardian.
(3) Physicians who request information
necessary for medical treatment of a client in an emergency when the client
cannot give his or her consent. Notice of the disclosure of information shall
be given to the client as soon as possible after the emergency has
passed.
(4) Other persons pursuant
to judicial order.
(5) Other
persons with the prior consent of the client or the client's attorney or the
client's private guardian.
(d) If a court determines that a respondent
to a petition for protective supervision or guardianship is not in need of
protective supervision or guardianship, or when a client's order of protective
supervision or guardianship is terminated, the client's case record and all
other information which identifies the client personally shall be sealed. A
sealed file may be opened only by order of the Commissioner for good cause
shown.
Section 20
Administrative Review of Protective Supervision or Guardianship
(a) An interested person who is not satisfied
with the decision or activity of the protective services specialist acting on
behalf of the client shall seek administrative review of the matter prior to
seeking Human Services Board review or judicial review. Administrative review
shall be pursued through the Department of Mental Health regulations entitled
"Rules for the Administrative Review of the Habilitation and Care of Mentally
Retarded Persons".
(b) An
interested person who is aggrieved by the final decision of the Commissioner of
Mental Health may seek review by the Human Services Board pursuant to
33 V.S.A. ยง
3615 and
3901.
Section 21 Annual Review of Need
for Protective Supervision or Guardianship
(a)
The protective services specialist shall prepare an annual review of the social
adjustment and progress of every client who is receiving protective supervision
or guardianship.
(b) The protective
services specialist's annual review shall be documented in a report which shall
include: a summary of the basic information about the client which was
collected at the time when the client's program was initiated; the discussion
of any changes in the client's abilities or circumstances since the initiation
of protective supervision or guardianship or since the client's last annual
review; a summary of all significant actions taken on the client's behalf
during the past year and a discussion of the results of those actions; and the
protective services specialist's proposed disposition of the case following the
review.
(c) The report of the
annual review shall be kept in the client case record. The client shall be
furnished with a copy of the report.
Section 22 Modification or Termination of
Protective Supervision or Guardianship
(a) The
Commissioner shall petition the District Court or support a petition for the
modification of the order of protective supervision or guardianship when
circumstances indicate that a change in the powers granted to the Commissioner
should be made.
(b) The
Commissioner shall petition the District Court or support a petition for the
termination of protective services when: the client no longer needs protective
supervision or guardianship because he or she is competent to take care of his
or her own needs; or the client has moved out of state without intent to
return, and any referral or transfer of guardianship for necessary service has
been completed; or the client is receiving the active assistance of a
responsible adult and so does not require protective supervision or
guardianship; or any other reason justifying termination of protective
supervision or guardianship.
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.