Connecticut Seal

Substitute Senate Bill No. 941

Public Act No. 03-51

AN ACT CONCERNING CHANGES TO THE STATUTES REGARDING PERSONS WITH MENTAL RETARDATION.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 45a-668 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2003):

Guardians of the property, and limited guardians of the property, of persons who are not minors and who are [mentally retarded] persons with mental retardation, appointed as such guardians or limited guardians under chapter 779a prior to October 1, 1982, shall serve on or after October 1, 1982, as conservators of the estates of such persons as if appointed conservators under the provisions of sections 45a-644 to 45a-662, inclusive, and in accordance with the provisions of said sections. Any guardian of the person or property of a minor person who is mentally retarded, appointed under chapter 779a, prior to October 1, 1982, may continue to serve as such guardian on or after October 1, 1982, as if appointed under and in accordance with the provisions of sections 45a-132, 45a-593 to 45a-597, inclusive, 45a-603 to 45a-662, inclusive, 45a-629 to 45a-638, inclusive, relative to guardians of minors. Such guardianship shall terminate upon the minor reaching the age of eighteen. Continuation of the guardianship of the estate shall be by application made pursuant to the provisions of sections 45a-644 to 45a-662, inclusive. Continuation of the guardianship of the person shall be by application made pursuant to the provisions of sections 45a-668 to 45a-684, inclusive. Any guardian of the person of a [mentally retarded] person with mental retardation who is not a minor, appointed under chapter 779a prior to October 1, 1982, may continue to serve as such guardian after October 1, 1982. Upon filing of a periodic account by any guardian appointed under the provisions of chapter 779a, prior to October 1, 1982, the court shall require a probate bond in the same manner as under sections 45a-132, 45a-593 to 45a-597, inclusive, 45a-603 to 45a-622, inclusive, 45a-629 to 45a-638, inclusive, or 45a-644 to 45a-662, inclusive. Failure to furnish a probate bond or written acceptance of guardianship required under the provisions of said sections, shall be cause for termination of the continued service of the fiduciary provided for in this section.

Sec. 2. Section 45a-669 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2003):

For purposes of sections 45a-668 to 45a-684, inclusive, as amended by this act, the following terms shall have the following meanings:

(a) "Plenary guardian of a [mentally retarded] person with mental retardation" means a person, legally authorized state official, or private nonprofit corporation, except a hospital or nursing home as defined in section 19a-521, appointed by a court of probate pursuant to the provisions of sections 45a-668 to 45a-684, inclusive, as amended by this act, to supervise all aspects of the care of an adult person, as enumerated in subsection (d) of section 45a-677, as amended by this act, for the benefit of such adult, who by reason of the severity of his mental retardation, has been determined to be totally unable to meet essential requirements for his physical health or safety and totally unable to make informed decisions about matters related to his care.

(b) "Legally competent" means having the legal power to direct one's personal and financial affairs. All persons in this state eighteen years of age and over are legally competent unless determined otherwise by a court in accordance with the provisions of sections 45a-668 to 45a-684, inclusive, or unless otherwise provided by law.

(c) "Limited guardian of a [mentally retarded] person with mental retardation" means a person, legally authorized state official, or a private nonprofit corporation, except a hospital or nursing home as defined in section 19a-521, appointed by a court of probate pursuant to the provisions of sections 45a-668 to 45a-684, inclusive, as amended by this act, to supervise certain specified aspects of the care of an adult person, as enumerated in subsection (d) of section 45a-677, as amended by this act, for the benefit of such adult, who by reason of the severity of his mental retardation, has been determined to be able to do some, but not all, of the tasks necessary to meet essential requirements for his physical health or safety or to make some, but not all, informed decisions about matters related to his care.

(d) ["Mentally retarded person"] "Person with mental retardation" means a person who has a condition defined as mental retardation pursuant to section 1-1g.

(e) "Respondent" means an adult person for whom an application for guardianship or limited guardianship of the person has been filed.

(f) "Unable to meet essential requirements for his physical health or safety" means the inability through one's own efforts and through acceptance of assistance from family, friends and other available private and public sources, to meet one's needs for medical care, nutrition, clothing, shelter, hygiene or safety so that, in the absence of a guardian of the [mentally retarded] person with mental retardation serious physical injury, illness or disease is likely to occur.

(g) "Unable to make informed decisions about matters related to one's care" means the inability of a [mentally retarded] person with mental retardation to achieve a rudimentary understanding, after conscientious efforts at explanation, of information necessary to make decisions about his need for physical or mental health care, food, clothing, shelter, hygiene, protection from physical abuse or harm, or other care.

(h) "Ward" means a person for whom a guardianship is granted under sections 45a-668 to 45a-684, inclusive, as amended by this act.

Sec. 3. Section 45a-672 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2003):

The notice required by subsection (a) of section 45a-671 shall inform such respondent of (1) whether the guardianship sought is a plenary or a limited guardianship and that the court, notwithstanding which type of guardianship is sought, may appoint a plenary guardian or a limited guardian of the [mentally retarded] person with mental retardation with such limitations as the court determines; (2) the legal consequences of both plenary and limited guardianships; (3) the facts alleged in the application and the limitations on the guardian's authority, if any, specifically applied for; and (4) the right to be represented by counsel.

Sec. 4. Section 45a-674 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2003):

At any hearing for appointment of a plenary guardian or limited guardian of the [mentally retarded] person with mental retardation, the court shall receive evidence as to the condition of the respondent, including a written report or testimony by a Department of Mental Retardation assessment team appointed by the Commissioner of Mental Retardation or his designee, no member of which is related by blood, marriage or adoption to either the applicant or the respondent and each member of which has personally observed or examined the respondent within forty-five days next preceding such hearing. The assessment team shall be comprised of at least three representatives from among appropriate disciplines having expertise in the evaluation of persons alleged to be mentally retarded. The assessment team members shall make their report on a form provided for that purpose by the Office of the Probate Court Administrator and shall answer questions on such form as fully and completely as possible. The report shall contain specific information regarding the severity of the mental retardation of the respondent and those specific areas, if any, in which he needs the supervision and protection of a guardian, and shall state upon the form the reasons for such opinions. The applicant, respondent or his counsel shall have the right to present evidence and cross-examine witnesses who testify at any hearing on the application. If such respondent or his counsel notifies the court not less than three days before the hearing that he wishes to cross-examine the witnesses, the court shall order such witnesses to appear. The fees for such assessment team shall be paid from funds appropriated to the Department of Mental Retardation.

Sec. 5. Section 45a-676 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2003):

(a) If the court finds, by clear and convincing evidence, that the respondent is, by reason of the severity of his mental retardation, totally unable to meet essential requirements for his physical health or safety and totally unable to make informed decisions about matters related to his care, the court shall appoint a plenary guardian or plenary coguardians of the [mentally retarded] person with mental retardation who shall have all those powers and duties provided for in section 45a-677, as amended by this act.

(b) If the court finds by clear and convincing evidence that the respondent is able to do some, but not all, of the tasks necessary to meet essential requirements for his physical health or safety or that the respondent is able to make some, but not all, informed decisions about matters related to his care, the court shall appoint a limited guardian or limited coguardians of the [mentally retarded] person with mental retardation.

(c) For purposes of sections 45a-668 to 45a-784, inclusive, as amended by this act, and section 46b-29, any alleged inability of the respondent must be evidenced by recent behavior which would cause harm or create a risk of harm, by clear and convincing proof.

(d) The court shall take from any such plenary guardian or limited guardian a written acceptance of such guardianship and, if the court deems it necessary for the protection of the respondent, a probate bond.

(e) The court shall make written findings of fact which support each grant of authority to the plenary guardian or limited guardian. If the court in reaching its conclusion is relying on incidents of behavior which occurred more than six months prior to the date of hearing, the court findings shall include its reasoning for relying upon such incidents.

(f) In selecting a plenary guardian or limited guardian of the [mentally retarded] person with mental retardation, the court shall be guided by the best interests of the respondent, including, but not limited to, the preference of the respondent as to who should be appointed as plenary guardian or limited guardian. No person shall be excluded from serving as a plenary guardian or limited guardian solely because he is employed by the Department of Mental Retardation, except that (1) no such employee may be appointed as a plenary guardian or limited guardian of a [mentally retarded] person with mental retardation residing in a state-operated residential facility for the mentally retarded located in the Department of Mental Retardation region in which such person is employed; and (2) no such employee shall be so appointed unless no other suitable person to serve as plenary guardian or limited guardian can be found. Any appointment of an employee of the Department of Mental Retardation as a plenary guardian or limited guardian shall be made for a limited purpose and duration. During the term of appointment of any such employee, the Commissioner of Mental Retardation shall search for a suitable person who is not an employee of the department to replace such employee as plenary guardian or limited guardian.

Sec. 6. Section 45a-677 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2003):

(a) The court may assign to a limited guardian of a [mentally retarded] person with mental retardation any portion of the duties and powers listed in subsection (d) of this section for those particular areas in which the respondent lacks the capacity to meet the essential requirements for such respondent's physical or mental health or safety.

(b) A limited guardian may also be assigned the duty to assist the respondent in those particular areas in which the capacity of the respondent to meet the essential requirements of such respondent's physical or mental health or safety, protect such respondent's rights, obtain necessary services, or to fulfill such respondent's civil duties is impaired, as well as in other ways not specifically prohibited by sections 45a-668 to 45a-684, inclusive, as amended by this act.

(c) A limited guardian of a [mentally retarded] person with mental retardation shall have only such of the duties and responsibilities and powers of a guardian of a [mentally retarded] person with mental retardation under subsection (d) of this section as the court shall specify based upon its findings with regard to the individual need of the respondent for supervision. The guardian shall have the duty to report to the probate court which appointed such limited guardian at least annually the condition of the respondent. The preceding duties, responsibilities and powers shall be carried out within the limitations of the resources available to the ward, either through the ward's own estate or by reason of private or public assistance.

(d) The court may assign to a limited guardian the custody of the ward for the purpose of exercising any, but not all, of the following limited duties and powers, in order to assist the ward in achieving self-reliance: (1) To assure and consent to a place of abode outside the natural family home, (2) to consent to specifically designed educational, vocational or behavioral programs, (3) to consent to the release of clinical records and photographs, (4) to assure and consent to routine, elective and emergency medical and dental care, and (5) other specific limited powers to assure and consent to services necessary to develop or regain to the maximum extent possible the ward's capacity to meet essential requirements. All plenary guardians and limited guardians appointed pursuant to sections 45a-668 to 45a-684, inclusive, as amended by this act, shall also have a duty to assure the care and comfort of the ward within the limitations of their appointment, and within the limitations of the resources available to the ward either through the ward's own estate or by reason of private or public assistance.

(e) A plenary guardian or limited guardian of a [mentally retarded] person with mental retardation shall not have the power or authority: (1) To cause the ward to be admitted to any institution for treatment of the mentally ill, except in accordance with the provisions of sections 17a-75 to 17a-83, inclusive, 17a-456 to 17a-484, inclusive, 17a-495 to 17a-528, inclusive, 17a-540 to 17a-550, inclusive, 17a-560 to 17a-576, inclusive, 17a-615 to 17a-618, inclusive, and 17a-621 to 17a-664, inclusive, and chapter 420b; (2) to cause the ward to be admitted to any training school or other facility provided for the care and training of the mentally retarded if there is a conflict concerning such admission between the guardian and the [mentally retarded] person with mental retardation or next of kin, except in accordance with the provisions of sections 17a-274 and 17a-275; (3) to consent on behalf of the ward to a sterilization, except in accordance with the provisions of sections 45a-690 to 45a-700, inclusive; (4) to consent on behalf of the ward to psychosurgery, except in accordance with the provisions of section 17a-543; (5) to consent on behalf of the ward to the termination of the ward's parental rights, except in accordance with the provisions of sections 45a-706 to 45a-709, inclusive, 45a-715 to 45a-718, inclusive, 45a-724 to 45a-737, inclusive, and 45a-743 to 45a-757, inclusive; (6) to consent on behalf of the ward to the performance of any experimental biomedical or behavioral medical procedure or participation in any biomedical or behavioral experiment, unless it is (A) intended to preserve the life or prevent serious impairment of the physical health of the ward, (B) it is intended to assist the ward to regain the ward's abilities and has been approved for the ward by the court, or (C) has been (i) approved by a recognized institutional review board, as defined by 45 CFR 46, 21 CFR 50 and 21 CFR 56, as amended from time to time, and which is not a part of the Department of Mental Retardation, (ii) endorsed or supported by the Department of Mental Retardation, and (iii) approved for the ward by such ward's primary care physician; (7) to admit the ward to any residential facility operated by an organization by whom such guardian is employed, except in accordance with the provisions of section 17a-274; (8) to prohibit the marriage or divorce of the ward; and (9) to consent on behalf of the ward to an abortion or removal of a body organ, except in accordance with applicable statutory procedures when necessary to preserve the life or prevent serious impairment of the physical or mental health of the ward.

(f) A plenary guardian or limited guardian shall submit a report to the court: (1) Annually; (2) when the court orders additional reports to be filed; or (3) when there is a significant change in the capacity of the ward to meet the essential requirements for the ward's physical health or safety; (4) when the plenary guardian or limited guardian resigns or is removed; and (5) when the guardianship is terminated.

(g) Such reports shall be submitted on a form provided by the Office of the Probate Court Administrator and shall contain the following information: (1) Significant changes in the capacity of the ward to meet the essential requirements for the ward's physical health or safety; (2) the services being provided to the ward and the relationship of those services to the individual guardianship plan; (3) the significant actions taken by the limited guardian of a [mentally retarded] person with mental retardation or plenary guardian of a [mentally retarded] person with mental retardation during the reporting period; (4) any significant problems relating to the guardianship which have arisen during the reporting period; and (5) whether such guardianship, in the opinion of the guardian, should continue, be modified, or be terminated, and the reasons therefor.

(h) When any [mentally retarded] person with mental retardation for whom a guardian has been appointed becomes a resident of any town in the state in a probate district other than the one in which a guardian was appointed, or becomes a resident of any town in the state to which the guardianship file has been transferred under this section, such court in that district may, upon motion of any person deemed by the court to have sufficient interest in the welfare of the respondent, including, but not limited to, the guardian, the Commissioner of Mental Retardation or the commissioner's designee, or a relative of the person under guardianship, transfer the file to the probate district in which the person under guardianship resides at the time of the application, provided the transfer is in the best interest of the [mentally retarded] person with mental retardation. A transfer of the file shall be accomplished by the probate court in which the guardianship matter is on file by making copies of all documents in the court and certifying each of them and then causing them to be delivered to the court for the district in which the person under guardianship resides. When the transfer is made, the court of probate in which the person under guardianship resides at the time of transfer shall thereupon assume jurisdiction over the guardianship and all further accounts shall be filed with such court.

(i) A plenary guardian or limited guardian of a [mentally retarded] person with mental retardation and, to the extent appropriate, such person shall be the primary decision maker with respect to programs needed by such person and policies and practices affecting the well-being of such person within the authority granted by the court pursuant to this section, provided any such decision does not conflict with the requirements of section 17a-238. In making any such decision, the plenary guardian or limited guardian shall consult with the ward and appropriate members of the ward's family, where possible. A limited guardian shall be the primary decision maker only with respect to such duties assigned to the limited guardian by the court. The provisions of this subsection shall be included in any court order appointing a plenary guardian or limited guardian of a [mentally retarded] person with mental retardation.

Sec. 7. Section 45a-678 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2003):

Any plenary guardian or limited guardian of the [mentally retarded] person with mental retardation serving in accordance with the provisions of sections 45a-668 to 45a-684, inclusive, as amended by this act, may be removed by the court of probate which appointed such guardian and another person appointed guardian of the [mentally retarded] person with mental retardation if the court of probate making such appointment, after notice and hearing as required in section 45a-671, finds such removal and appointment of a new plenary guardian or limited guardian of the [mentally retarded] person with mental retardation to be in the best interest of the respondent. In the event an application for removal has been filed under this section, the attorney of record for the respondent shall have access to all of the records of the respondent.

Sec. 8. Section 45a-679 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2003):

If a ward has both a plenary guardian or limited guardian of the [mentally retarded] person with mental retardation and a conservator of the estate or person or a temporary conservator who are not the same person and a conflict arises between the two concerning the duties and responsibilities or authority of either, the matter shall be submitted to the court of probate making the appointment of such guardian or conservator and such court shall, after a hearing, order the course of action which in its discretion is in the best interest of the ward.

Sec. 9. Section 45a-680 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2003):

Whenever a court of probate appoints a plenary guardian or limited guardian of the [mentally retarded] person with mental retardation, such court may appoint a standby plenary guardian or a standby limited guardian of the [mentally retarded] person with mental retardation. Such standby shall act if the appointed plenary guardian or limited guardian of the [mentally retarded] person with mental retardation dies, becomes incapable, or renounces his plenary guardianship or limited guardianship. The standby plenary guardian or standby limited guardian shall immediately inform the court of probate which has jurisdiction over such guardianship of his assumption of the guardianship and the reason therefor. The standby guardian, in the event of the guardian's death, incapacity or renunciation, shall, upon furnishing a probate bond if such a bond had been required from the plenary guardian or limited guardian whose duties are being assumed, but without further proceedings, be empowered to assume the duties of his office immediately upon the death or adjudication of incompetency of the plenary guardian of the person or limited guardian of the person of the [mentally retarded] person with mental retardation, subject only to confirmation of his appointment by the court of probate within sixty days following assumption of his duties of office.

Sec. 10. Section 45a-681 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2003):

(a) The court shall review each guardianship of the [mentally retarded] person with mental retardation or limited guardianship of the [mentally retarded] person with mental retardation at least every three years and shall either continue, modify or terminate the order for guardianship. The court shall receive and review written evidence as to the condition of the ward. The guardian, the attorney for the ward and a Department of Mental Retardation professional or, if requested by the ward or by the court, an assessment team appointed by the Commissioner of Mental Retardation or his designee shall each submit a written report to the court within forty-five days of the court's request for such report. If the ward is unable to request or obtain an attorney, the court shall appoint an attorney for the ward. If the ward is unable to pay for the services of the attorney, the reasonable compensation of such attorney shall be established by, and paid from funds appropriated to, the Judicial Department; however, if funds have not been included in the budget of the Judicial Department for such purposes, such compensation shall be established by the Probate Court Administrator and paid from the Probate Court Administration Fund. The Department of Mental Retardation professional or assessment team shall personally observe or examine the ward within the forty-five-day period preceding the date of submission of its report.

(b) If the court determines, after receipt of the reports from the attorney for the ward, the Department of Mental Retardation professional or assessment team and the guardian, that there has been no change in the condition of the ward since the last preceding review by the court, a hearing on the condition of the ward shall not be required, but the court, in its discretion, may hold such hearing. If the attorney for the ward, the Department of Mental Retardation professional or assessment team or the guardian requests a hearing, the court shall hold a hearing within thirty days of such request. No order expanding or reducing the powers and responsibilities of a guardian shall be issued unless such hearing is held.

Sec. 11. Section 45a-683 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2003):

Any plenary guardian of a [mentally retarded] person with mental retardation, temporary limited guardian or limited guardian of a [mentally retarded] person with mental retardation who acts in good faith or pursuant to order of a court of probate pursuant to the provisions of sections 45a-668 to 45a-684, inclusive, as amended by this act, shall be immune from civil liability, except that such immunity shall not extend to gross negligence.

Sec. 12. Section 45a-684 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2003):

All fees and expenses incurred under sections 45a-668 to 45a-684, inclusive, as amended by this act, except as otherwise provided, shall be paid pursuant to [subsections (i) and (j) of section 45a-105] sections 45a-106 and 45a-111.

Approved May 23, 2003