civil division and the family division and I think even the criminal division, doing ar- raignments, and just sort of doing a day here or a day there. GB: Right.
BP: How are the skills different? What do you bring to the table that is different on the probate bench and the other courts? GB: Well, my bias is towards specialized judges. I think if you know the law and you work in it regularly, you see a broad variety of situations. What is different about be- ing a judge in a trial court versus a probate court is the probate judges are generally specialists and they have seen all aspects of adoptions, estates, trusts, guardianships, and emancipations, and all the other spat- tering of things that we do. I know some trial judges are experts in criminal law or family law, and they are as much experts in those areas as we are in probate court. But they are moved to other divisions where they might not be so experienced, and that, I think, is one distinction between the trial courts and the probate courts. Also, in probate court we have quite a bit of flex- ibility, I think. A probate judge might sit down with someone at the window, some- thing that you wouldn’t find a trial judge doing. But if it clearly is an administrative matter, and it’s one person trying to open an estate and they have some questions that the register or the clerk cannot answer (which would be few) it would not be un- heard of for a judge to come out and talk to that person.
BP: You have already given us the sub- ject matter of the probate court, and the different kinds of cases that you’ve seen. Have they changed over this twenty-one, twenty-year period? GB: Yes. The Adoption Act of 1996 clari- fied and improved adoption practice. Be- fore that there was really no way to search if you were an adoptee and you wanted to find your biological parents; there was no statutory scheme to do that, and now there is a system. So that was added as well as the termination of parental rights. By the way, the Vermont Adoption Act made Ver- mont the first jurisdiction to adopt the Uniform Adoption Act, which was recom- mended by the Uniform State Laws Com- mission. Since I have been probate judge the emancipation law has been adopted al- lowing sixteen-to-seventeen year-olds to be decreed to be emancipated. The Ver- mont Trust Code was recently adopted thanks to Mark Langdon, Paul Hanlon, Bob Pratt, and others. I cannot tell you what a benefit that law is for people and law- yers who are trying to find simple answers to trust problems. That statute addresses most of the trust administration problems that come up. It provides a statutory solu-
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tion and a process to get those matters re- solved. That is a big area of improvement in the law that has happened since I’ve been probate judge.
BP: I think for most people, probate
court really is estates and trusts. But, a lot of what you have talked about in terms of the expansion of adoption law, termination of parental rights, sounds a little bit to me like the family division. How do those two fit together? When do you go to one or the other? GB: Well, the dividing line in many of the cases is whether the state is initiating the case or whether it is a relative or a par- ty other than the state. In adult guardian- ships, often it’s a relative who sees an el- der failing and they initiate a proceeding. For developmentally disabled person(s), often those are brought by the state; sort of a hangover from the Brandon Training School. Those “guardianship services” cas- es are brought by the state in family court. Child neglect and abuse proceedings (CHINS cases) are brought in family court because it is the power of the state being brought to intercede in a family, whereas in probate court, it’s one relative trying to help their grandchild or niece or nephew out by bringing the minor guardianship in probate court. Many of those cases are consensual anyhow. A parent realizes, for whatever reason, they cannot parent for awhile, and they consent to a guardianship for their child. My point is, the level of state interference and whether it is a civil matter versus a state-prosecuted matter, is one of the dividing lines between the two courts. On that point, we have the ability to ask the family division to consolidate probate cas- es to the family division. There is a legisla- tive study committee underway to resolve how the two courts work together and in- terface where a minor guardianship is es- sentially a child neglect proceeding and there is something going on in family court as well, such as a divorce or a CHINS case.
BP: That’s a holdover committee. That was a committee that should have finished last year but asked for an extension to do more work? GB: Correct.
BP: Do you serve on that? GB: I do, although I am an ad hoc mem- ber now. Judge Ertel is the probate repre- sentative for that committee now.
BP: You talked earlier about representa- tion that is required for certain people in certain cases. GB: Right.
BP: Are those privately retained lawyers or are those volunteer lawyers?
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GB: In the termination of parental rights context, the administrative judge can ap- point a lawyer subject to the rules of ap- pointed counsel and the state reimburse- ment rates, so we go to the administrative judge for that. When an adult is the subject of an involuntary guardianship proceeding, the law requires that counsel be appointed. The law also says that the probate judges must go to the private bar first to seek pro bono representation before we go to Legal Aid or the Disability Law Project. I have al- ways bristled a bit at that, because I think that if it’s important enough for a person to have representation to protect their rights, it should be important enough to pay the lawyers that are being asked to do that. It’s a little unfair to say that just because we have a pro bono system, a whole class of cases should tap into that system as a mat- ter of statutory law. When I was a private lawyer, Judge Olich used to ask me to take cases, and one of my jobs as probate judge was to call people around the county and ask them to take the cases. I so much ad- mire the members of the bar because they give freely of their time. I recall one lawyer took an appeal and spent many hours pur- suing it on behalf of an indigent client. It is a selfless thing that lawyers do and they do a good job. I am so appreciative of the law- yers of Washington County who have done that.
BP: Let’s talk about the types of cases that have kind of changed. You related it to the change in the law in about 1996. Where is the probate court going from here, as you see it? GB: Well, my hope, my fervent hope, is that some of the division between the pro- bate court and the other divisions of the judiciary will be resolved. Now, the new probate judges who are coming in must be lawyers, and I think that was an obsta- cle before. I think that’s a good thing. The nature of many cases today requires some- one who is legally trained. Another hope I have is that the probate court does not change to become like the trial courts. I like the notion of community justice—that you have someone who is in tune with the lo- cal services and the hospital. As the pro- bate judge in Washington County I had knowledge about the way the Central Ver- mont Medical Center works, and how they do discharge planning. If you have people who are not familiar with the local services, I don’t think you will have as good an out- come and the cases will not be handled as well. My hope is that the probate court of the future retains a local nature. During the reorganization, that was to me the essen- tial reason that there should be a probate court in every county. That would make it local. If they are elected—and I am not particularly a fan of elected judges—but
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Interview with Judge George Belcher
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