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. § 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.13-009 Code Vt. R. 13-150-009-X
Effective Date: July 16, 1986 (SOS Rule Log # 86-32) Statutory Authority: 18 V.S.A. C. 171, 173, 177; 33 V.S.A. C. 49