Vermont Statutes Title 18 Sec. 9718
Terms Used In Vermont Statutes Title 18 Sec. 9718
- Advance directive: means a written record executed pursuant to section 9703 of this title, which may include appointment of an agent, identification of a preferred primary care clinician, instructions on health care desires or treatment goals, an anatomical gift, disposition of remains, and funeral goods and services. See
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Agent: means an adult with capacity to whom authority to make health care decisions is delegated under an advance directive, including an alternate agent if the agent is not reasonably available. See
- Capacity: means an individual's ability to make and communicate a decision regarding the issue that needs to be decided. See
- Clinician: means a medical doctor licensed to practice under 26 Vt. See
- Department: means the Department of Health. See
- following: when used by way of reference to a section of the law shall mean the next preceding or following section. See
- Fraud: Intentional deception resulting in injury to another.
- Gift: A voluntary transfer or conveyance of property without consideration, or for less than full and adequate consideration based on fair market value.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Guardian: means a person appointed by the Probate Division of the Superior Court who has the authority to make medical decisions pursuant to 14 V. See
- Health care: means any treatment, service, or procedure to maintain, diagnose, or treat an individual's physical or mental condition, including services provided pursuant to a clinician's order, and services to assist in activities of daily living provided by a health care provider or in a health care facility or residential care facility. See
- HIPAA: means the Health Insurance Portability and Accountability Act of 1996, codified at 42 U. See
- Interested individual: means :
- Mental health patient representative: means the mental health patient representative established by section 7253 of this title. See
- Ombudsman: means :
- Person: means any individual, company, corporation, association, partnership, the U. See
- Principal: means an adult who has executed an advance directive. See
- Probate: Proving a will
- Residential care facility: means a residential care home or an assisted living residence as those terms are defined in 33 V. See
§ 9718. Petition for review by the Probate Division of the Superior Court
(a) A petition may be filed in the Probate Division of the Superior Court under this section by:
(1) a principal, guardian, agent, ombudsman, a mental health patient representative, or interested individual other than one identified in an advance directive, pursuant to subdivision 9702(a)(10) of this title, as not authorized to bring an action under this section;
(2) a social worker or health care provider employed by or directly associated with the health care provider, health care facility, or residential care facility providing care to the principal;
(3) the Defender General if the principal is in the custody of the Department of Corrections;
(4) a representative of the State-designated protection and advocacy system if the principal is in the custody of the Department of Mental Health;
(5) an individual or entity identified in an advance directive, pursuant to subdivision 9702(a)(10) of this title, as authorized to bring an action under this section; or
(6) Adult Protective Services, for the purposes of reviewing the authority of the agent under 33 V.S.A. § 6907(b)(3) to refuse protective services under 33 V.S.A. § 6907(b)(2)(C).
(b) A petition filed in the Probate Division of the Superior Court under this section shall include a supporting affidavit and may request:
(1) that the advance directive be revoked on the grounds that the principal lacked capacity to understand the nature of the advance directive, was under duress, or was the subject of fraud or undue influence when the advance directive was executed, except that, if the principal is deceased, this subdivision shall not apply to any part of an advanced directive making an anatomical gift;
(2) that the suspension or revocation of the advance directive be voided and the advance directive be reinstated on the grounds that at the time of the suspension or revocation, the principal was under duress or was the subject of fraud or undue influence;
(3) a declaratory judgment concerning the construction of an advance directive or the rights, legal status, or other legal relationship of the parties with respect to an advance directive; or
(4) an order for disposition of the remains of the principal.
(c) A principal, agent, or interested individual may file an petition in the Probate Division of the Superior Court with a supporting affidavit challenging a determination that the condition specified pursuant to subdivision 9702(a)(3) of this title is met.
(d) The principal or an agent may file an petition in the Probate Division of the Superior Court challenging a determination under subdivision 9706(a)(1) or subsection (c) of this title if:
(1) the petitioner provides notice to any agent, the principal, an interested individual, or a person entitled to notification of a determination of capacity under subdivision 9706(a)(1) or subsection (c) of this title prior to filing;
(2) the petition includes a supporting affidavit setting forth specific facts challenging a capacity determination under subdivision 9706(a)(1) or subsection (c) of this title;
(3)(A) prior to filing, the petitioner obtains a determination from a clinician that the principal’s capacity is not as the principal’s clinician has determined; or
(B) if the petitioner is unable to obtain the determination required by subdivision (A) of this subdivision (3), the petitioner includes in the supporting affidavit the facts regarding the attempts to obtain a second determination of capacity and supporting the challenge to the capacity determination by the petitioner’s clinician; and
(4) the petitioner notifies the principal’s clinician that an petition challenging the determination of capacity has been filed and provides the supporting determination or affidavit to the principal’s clinician.
(e) The Probate Division of the Superior Court may limit the frequency of a capacity redetermination pursuant to subsection (d) of this section upon a finding that there have been multiple requests for redetermination, and that those requests have been frivolous or requested in bad faith.
(f) The agent, if any, shall have the opportunity to appear in any action brought under subdivision (b)(1), (2), or (3) of this section or subsection (c) or (d) of this section.
(g) A petitioner filing under subsection (b), (c), or (d) of this section shall, if doing so would be consistent with any obligations the petitioner has under HIPAA, provide notice to the following persons if known: the principal, an agent, a guardian, and interested individuals. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; amended 2005, No. 215 (Adj. Sess.), § 338; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2013, No. 192 (Adj. Sess.), § 21; 2015, No. 23, § 52; 2017, No. 121 (Adj. Sess.), § 4a, eff. May 3, 2018; 2023, No. 81, § 3, eff. July 1, 2023.)