Saturday, February 2, 2008

Rep. Maxine Grad: Legislative Update

It has been a busy few weeks in my committee. The following is a summary of the bills we are currently working on.

H.617 Guardianship. This bill is a product of a study commission’s rewrite of our current law. The bill recognizes that people who are under guardianship, which is a court ordered relationship, are some of the most vulnerable Vermonters. It also recognizes that if a person is under guardianship, it does not mean that the individual should lose all of his or her rights. Instead, the guardian’s goal is to help the person under guardianship to maximize his or her potential and function as best as he or she can. Generally, there is consensus on this bill from the mental health advocates, legal community and administration.

The one area of disagreement is the ability of the guardian to consent to the administration of involuntary medication.

We took testimony from Judge Mary Teachout for the need for the legislature to clarify the authority of the probate and mental health courts in involuntary medication cases where the patient refuses medication but the guardian consents. This issue arose out of recent cases where Judge Teachout’s ruling had the effect that involuntary medication decision should be made by probate courts instead of the family court. The state mental health agency disagreed. According to mental health law, these cases are decided in family court. The probate courts generally do not have a role in these proceedings. There are no due process standards in probate court for making these decisions. Further, Probate court tends to defer to the wishes of the family that isn’t always consistent with patient’s.

This issue is of great concern to the mental health community. The Vermont Supreme Court recently held that involuntary medication is an even greater intrusion on a patient’s autonomy than involuntary commitment to the state hospital. We will continue to consider which court is the most appropriate.

H.203 Surviving Spouse’s Rights When There is Not a Will. Most people assume that if a person dies without a will, the surviving spouse gets everything. Currently, unless there are no kindred—i.e. cousins, kids, etc. the surviving spouse is not entitled to the whole estate, but one third. We need to recognize that seeing a lawyer for a will can be very expensive. When people do wills on their own, the wills are often not executed properly and are therefore invalid. We will continue looking at how to remedy this.

H.180 Qualifications for the Attorney General, States Attorneys, Assistant Attorney Generals and Deputy State Attorneys. Currently the attorney general does not need to be a lawyer. This bill would require it. It would also require that the other listed positions be attorneys who are licensed in Vermont. According to the Executive Director of the State’s Attorneys, “We would be crippled if we had nonlawyer state’s attorneys” given our case law. The Attorney General testified that he takes no position on whether his position should be an attorney. He said he has so many layers in his office; it would not present a problem if we continued with current law.

H.615 Juvenile Proceedings for children In Need of Supervision and Care Due to Abuse or Neglect and Delinquent Children. This is a rewrite of our juvenile laws that I have discussed in my articles before. We continue to spend each Tuesday and Thursday learning about the contents in the bill with the testimony of Administrative Judge Amy Davenport and representatives from the department for children and families and the juvenile defenders office. All of them served on the committee that proposed the bill. Here are some of the things we reviewed this week:

1. Bill changes the name of the emergency hearing where a child is taken into state custody from detention hearing to care hearing. This is a national trend that recognizes that detention is more like prison and the criminal system, which this isn’t. We noted that schools are still using the term detention for violations such as not having homework done.

2. Changed the manner a child is taken into custody—used to be always to court, but is this the best thing for a baby or small child? Is there a better place to take an infant or young child than the courthouse? The goal is to minimize trauma to child.

3. A hearing must occur within 72 hours of issuing an emergency a care order. Attorneys are appointed for the child and parents. Judge Davenport discussed the challenges of our rural areas and lack of cell reception's impact on the ability to obtain counsel ASAP.

We will continue our work on this very important issue.

We are also working on a bill that looks at when there has been embezzlement or crime committed by a municipal official or sheriff. In the next few weeks, we will take up bullying in schools and cyber bullying.

Thank you to Brenda Cruickshank for coming to the State House in her capacity as Legislative Liaison for the VFW. Ms. Cruickshank has been a mentor and advisor to me on veteran affairs.

Congratulations to the Moretown Town Hall committee for a great event on Saturday. The Town Hall is a jewel of the community. Thank you to the town and committee for its leadership in helping to p reserve this vital resource.

Please stay in touch. 496-4244 (home) or 828-2228 (State House). It is an honor to represent you.

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