Vt. R. Prob. P. 80.9

As amended through August 12, 2024

Rule 80.9 - Representation by Guardians ad litem of Minors

(a)Applicability. This rule applies to any proceeding under 14 V.S.A. Chapter 111 in which the probate court, on its own or a party's motion, considers the appointment of a guardian ad litem for a minor, except for those situations in which a minor is proposed to be a witness under 14 V.S.A. § 2625. It also applies to change of name proceedings under 15 V.S.A. Chapter 13, and to adoption proceedings under 15A V.S.A. Article 3.

(b)Appointment of Guardian Ad Litem.

(1)On Court's Own Motion. The court, on its own motion, may appoint a guardian ad litem for a minor.

(2)On Motion of a Party. Any party may move for appointment of a guardian ad litem for a minor.

(3)Replacement; Discharge. The court in its discretion may replace or discharge a guardian ad litem.

(4)Objections. Any party may file a written objection to the appointment, replacement, or discharge of a guardian ad litem provided the written objection is filed with the court no less than 7 days after the appointment, replacement, or discharge of a guardian ad litem if no prior objection to the appointment, replacement, or discharge has been filed by the party. If a written objection to the appointment, replacement, or discharge has been timely filed, and a written request for hearing has been timely filed by any party, the court shall hold a hearing.

(c)Settlements, Compromises, and Waivers.

(1)In General. In any proceeding in which a guardian ad litem has been appointed pursuant to this rule, the court shall review all settlements, compromises, waivers of evidentiary, statutory, constitutional or common-law privileges, stipulations, and other decisions affecting the substantial rights or interests of the minor.

(2)Disagreements Between Minor and Guardian Ad Litem. When a minor and a minor's guardian ad litem disagree as to a matter governed by paragraph (1), the attorney assigned to represent the minor shall promptly and fully inform the court of the position of the guardian ad litem. The guardian ad litem also shall be afforded the right to be heard but shall not disclose privileged information or information that has not been admitted into evidence. The court may, in its discretion, appoint additional counsel for the guardian ad litem.

(3)Waivers of Constitutional and Other Important Rights. When a minor or a guardian ad litem wishes to waive a constitutional right of the minor, 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 has investigated the relevant facts and law, consulted with the client and guardian ad litem, and the guardian ad litem has consulted with the minor;

(C) that the waiver or admission is in the best interest of the minor; and

(D) that the waiver or admission is being entered into knowingly and voluntarily by the minor and also by the guardian ad litem, except as set forth in paragraph (4).

(4)Approval Without Minor's Consent of Constitutional or Other Important Waivers. A waiver or admission listed in paragraph (3) may be approved with the consent of the guardian ad litem but without the consent of the minor if the minor, because of mental or emotional disability, is unable to understand the nature and consequences of the waiver or admission or is unable to communicate with respect to the waiver or admission. A person who has not attained the age of thirteen shall be rebuttably presumed to be incapable of understanding the nature and consequences of the waiver or admission and of communicating with respect to the waiver or admission; a person thirteen years old or older shall be rebuttably presumed to be capable. The rebuttable presumptions shall have the effect set forth by V.R.E. 301 and shall also allocate the burden of persuasion.

(d)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 minor's best interest and rights.

(2) Duties Generally. Each guardian ad litem shall meet with the minor, the minor's attorney, and others who may be necessary for an understanding of the issues in the proceeding. The guardian ad litem shall be familiar with all pertinent pleadings, reports, and other documents. The guardian ad litem shall discuss with the minor and the minor's attorney all options which may be presented to the court, and shall assist the attorney in advising the minor regarding those options.

(3)Courtroom Role. In any proceeding governed by this rule, the guardian ad litem may, at any phase of the proceeding, state his or her position or opinion on the merits of any issue before the court and the reasons therefor, which reasons shall be based upon the evidence which is in the record. 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 minor by the attorney, including but not limited to the presentation of evidence made by the minor's attorney. If the guardian ad litem at any time is not satisfied that the minor's rights and interests are being effectively represented, the guardian ad litem shall so advise the court in open court, orally or in writing.

(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 minor's best interest, and no other persons could be employed or subpoenaed to testify on the same subject matter.

(5)Reports Prepared by Guardians Ad Litem. If the guardian ad litem prepares a written report, it may be submitted to the court pursuant to the Vermont Rules of Evidence and subject to these rules.

Vt. R. Prob. P. 80.9

Adopted June 12, 2020, eff. 8/18/2020.

Reporter's Notes

Rules 80.9-80.11 are added to incorporate in the Rules of Probate Procedure, with appropriate modifications, those provisions of Rules 6, 6.1, 7, and 7.1 of the Rules for Family Proceedings that are applicable in proceedings in the Probate Division. See Rule 80.9(a).

Rule 80.9(a), making the procedure for appointment of a guardian ad litem (GAL) applicable to nearly all matters affecting minors under 14 V.S.A. Ch. 111, gives the Rule a broad scope to include the appointment of a financial guardian, modifications of permanent guardianships, and minor custodial guardianships. It is inapplicable only to proceedings under 14 V.S.A. § 2625 in which a minor will be a witness and counsel is to be appointed for the minor. In addition, the Rule also applies to change of name proceedings under 15 V.S.A. Ch. 13, and to adoption proceedings under 15A V.S.A. art. 3, eliminating the need for a separate Rule equivalent to V.R.F.P. 7 covering minors who are the subject of proceedings under those rules.

Rule 80.9(b) adapts V.R.F.P. 6(c)(2) and (3) in simpler form. Here and throughout Rule 80.9, "minor" is substituted for "ward," "proposed ward," "person under guardianship," or "child" for uniformity and simplicity of usage. The reference to V.R.C.P. 78(b) in V.R.F.P. 6(c)(2) is not carried forward because, unlike the family rules, the probate rules do not generally incorporate the civil rules.

Rules 80.9(c) and (d) carry forward V.R.F.P. 6(d) and (e) with minor editorial changes. A sentence in V.F.R.P. 6(e)(4) allowing the court to appoint a new GAL if a GAL has been called as a witness is omitted as superfluous in light of the broad discretion to replace a GAL provided by proposed V.R.P.P. 80.9(b)(3). There is no equivalent of V.R.F.P. 6(f) requiring a verbatim record to be made, because V.R.P.P. 47(a), as amended in 2016, requires a recording to be made in all cases except the finalization of an adoption, an uncontested name change proceeding, and an uncontested vital records request.