2007 PROBATE COURT LEGISLATION

This report provides highlights of new laws (Public Acts) affecting the Probate Courts enacted during the 2007 legislative session.

Not all provisions of the acts are included here. Complete summaries of all 2007 Public Acts will be available in the fall when OLR's Public Act Summary book is published; some are already on OLR's webpage: Office of Legislative Research (http: //cga. ct. gov/olr/).

Readers are encouraged to obtain the full text of acts that interest them from the Connecticut State Library, the House Clerk's Office, or the General Assembly's website: (http: //cga. ct. gov).

You asked for a summary of 2007 public acts that affect Probate Court and Probate Court proceedings.

This year the legislature enacted several bills concerning probate courts and proceedings in probate court. One of the major bills (PA 07-184) gives the probate court administrator additional powers over probate courts and probate court judges. Specifically, it authorizes him to enforce statutes dealing with probate court administration and with regulations he issues. Also, under certain circumstances, it authorizes him to reassign pending cases to a special assignment probate judge or another probate judge and designate a special assignment probate judge to help the judge conduct his or her business.

Also, the act increases the minimum requirements for probate court facilities, requires the probate court administrator to notify a town if the court does not comply with minimum standards, gives the town the chance to submit a compliance plan, and requires probate court regulations to be submitted to the Judiciary Committee for approval.

Another major bill (PA 07-116) changes procedures for appointing conservators and designating their powers and sets procedures for appealing probate court decisions and filing habeas corpus petitions.

1. requires the probate court to record proceedings on appointing conservators, setting their powers and duties, and terminating conservatorships;

2. requires appeals of hearings appointing a conservator to be on record and sets the standard for court review;

3. changes the definitions of incapacity, which is required for the court to find appointment of a conservator necessary;

4. requires the probate court to consider certain factors and changes the standard the court must apply before deciding to appoint a conservator, including requiring a finding that appointing the conservator is the least restrictive intervention available to assist the person;

5. requires the probate court to give a conservator only the least restrictive duties and authority necessary to meet the person's needs, and the court must make specific findings on the need for each duty or authority; and

6. requires a conservator to carry out the duties and authority assigned by the court in a manner that is the “least restrictive means of intervention”.

The legislature also enacted other legislation relating to the threshold of the value of decedent's estates that are eligible for expedited probate proceedings; appointment and the removal of guardians for a minor; temporary custody of a minor; petitions to terminate parental rights; the emancipation of a minor; paternity claims; subsidized guardianship programs; extended family guardianships; the rights of prospective adoptive parents, foster parents, and relative care-givers; the council of probate judicial conduct; adoptions; and the appointment, powers and duties of conservators. (PA 07-115, -32, -238, -174, -247, and PA 07-5, June Special Session).

The act gives the probate court administrator additional powers over probate courts and probate court judges. Specifically, it authorizes him to enforce statutes dealing with probate court administration and with regulations he or she issues. Also, under certain circumstances, it authorizes him to reassign pending cases to a special assignment probate judge or another probate judge and designate a special assignment probate judge to help the judge conduct his or her business. These circumstances involve courts where (1) court facilities do not meet statutory minimum standards or (2) court business has not been conducted properly, with expeditious dispatch, or in accordance with statutes or regulations.

The act increases the minimum requirements for probate court facilities, requires the probate court administrator to notify a town if the court does not comply with minimum standards, gives the town the chance to submit a compliance plan, and requires probate court regulations to be submitted to the Judiciary Committee for approval.

Finally, the act delays from March 1 to April 1 of the following year, the date by which probate judges must file a statement of the actual gross receipts and itemized costs of his or her office and the net income for each such calendar year. It also delays from March 1 to April 1 the date by which a probate judge who ceases to hold office must file on the second and third years following the year he ceased to hold office a statement showing his or her net probate court income from the two years. The statements must be filed with the probate court administrator and signed under penalty of false statement.

The law requires the town or towns comprising each probate district to provide court facilities meeting minimum standards specified by statute. Existing law requires them to provide the use and maintenance of microfilming equipment and the necessary supplies, including record books, or the equipment to produce records. The acts expands this duty to include electronic, digital, microfilming, or similar systems required to maintain, provide access to, and produce court records, and the necessary supplies for such systems, equipment, and records.

The act requires that probate courts be open to the public for the conduct of court business not less than 20 hours a week, Monday through Friday, excluding holidays, on a regular schedule between 8: 00 a. m. and 5: 00 p. m. The judge may close a court temporarily for inclement weather, an emergency, or other good cause. The judge must immediately notify the probate court administrator of a temporary closing, together with the reason for the closing and the date and time when the court will reopen. The act authorizes the probate court administrator, for good cause shown, to modify these requirements.

By law, if a town does not provide the court facilities required by law, the probate court administrator must offer in writing to meet with the judge and the responsible local officials. The Probate court administrator may subsequently waive or modify the application of a particular requirement for the court.

The act requires the probate court administrator to provide written notice, by first class mail, to the probate judge of the district and the chief executive officer of the town in which the court is located, on or before October first of any year in which a town fails to provide suitable court facilities. The notice must specify the statutory requirements that are not met and require a plan to meet them. By January first of the following year, the town's chief executive officer, or his or her representative, must file the plan and implementation schedule with the Probate court administrator.

By law, if court facilities do not comply with the minimum standards, the probate court administrator must also either (1) submit a report to the Judiciary Committee together with a recommendation that the probate district be abolished as a separate district and be consolidated with a contiguous district where suitable court facilities can be provided or (2) if, in the probate court administrator's opinion, abolition is not in the public interest and judicial action is necessary to provide suitable court facilities, bring an action in the Superior Court to enforce the requirement to provide such facilities. The act requires the probate court administrator to do so by February first of the year after he or she first provides notice to the town.

The act gives the probate court administrator the authority to administer and enforce the statutes dealing with probate court administration, the act's provisions, and the regulations he or she issues to ensure performance of the duties of probate judges and clerks (§ 502(a)).

The law gives the Probate Court Administrator two types of regulation making authority. One way authorizes him to issue regulations for certain purposes following certain procedures. The other authorizes him to adopt regulations for other purposes following the procedures in the Uniform Administrative Procedures Act, which governs the adoption of regulations by all administrative agencies.

The act expands the probate court administrator's authority to issue regulations for the administration of probate court to include:

3. training of court personnel and continuing education programs for judges of probate and court personnel; and

4. the enforcement of the probate administration provisions of the statutes, the act, and regulations, including recovery of expenses associated with any such enforcement, as the regulations permit.

The act gives the probate court administrator the authority to issue instead of adopt, regulations concerning (1) the annual weighted-workload, which is used to determine the maximum amount of net income; (2) payments to the state treasurer, (3) the penalty for a deficiency in connection with the compensation of probate court judges, (4) and group hospitalization and medical and surgical insurance for probate court judges and employees (§§ 506-509).

By law the probate court administrator may adopt regulations that concern (1) the availability of judges; (2) court facilities, personnel, and records; (3) hours of court operations; and (4) telephone service.

The act requires that any proposed new regulation and any change in an existing regulation issued or adopted on or after July 1, 2007 must be submitted to the Judiciary Committee for approval or disapproval in its entirety. But if more than one proposed new regulation or change in an existing regulation is submitted at the same time, the committee must approve or disapprove all of them together in their entirety. Unless the committee disapproves them within 90 days after submission, each regulation becomes effective on the date specified in such regulation, as long as it is at least 90 days after promulgation.

The law gives the probate court administrator the duty and authority to regularly review the auditing, accounting, statistical, acting, recording, filing, and other procedures of the courts of probate. The act also requires him or her to review their administrative procedures.

The law requires the probate court administrator, or his or her designee to visit each court of probate at least once every two years to examine their records and files. It also authorizes him or her to make any additional inquiries to ascertain whether the business of the court has been conducted in accordance with law, rules of the courts of probate, and the canons of judicial ethics. The act also authorizes him or her to determine whether the courts are complying with regulations the administrator issued.

Notice. The act allows the probate court administrator to meet with probate judges to correct any deficiencies if the administrator determines that:

1. the business of the judge's court has not been conducted properly, with expeditious dispatch, or in accordance with law, the regulations the administrator issued; or

2. suitable court facilities are not being provided for a court of probate in accordance with legal requirements.

If the probate court administrator determines that additional action is warranted, he or she must give the judge written notice. The notice must include the administrator's reasons and a proposed disposition, which may include one or more of the following actions:

1. reassignment of any case pending before the court to a special assignment probate judge or another probate judge by means of a citation in the manner provided in law,

2. designation of a special assignment probate judge to assist the judge to conduct its business, or

3. recovery of expenses from the judge of such court, as permitted by regulation.

Hearing. Under the act, within 10 business days after receiving this notice, the probate judge may file with the probate court administrator a request for a hearing before a review panel. The review panel must consist of (1) a probate judge selected by the administrator, (2) a probate judge selected by the judge who received the notice, and (3) a probate judge jointly selected by the judges already selected. If the selected judges are unable to make a joint selection, the Supreme Court chief justice will select the third judge.

Within 15 business days after the filing of a request for a hearing, the review panel must hold a hearing on the probate court administrator's determination and proposed disposition of the matter. The probate court administrator and the probate judge who is the subject of the action have a right to be heard and present evidence at the hearing. The probate court administrator has the burden of proving that probate judge received written notice from him.

After the hearing, a majority of the members of the review panel may affirm, dismiss, or modify the probate court administrator's determination and proposed disposition. The act gives the Probate court administrator and the judge the right to request that the matter be heard on the record.

If the notified judge does not request a hearing in time, the probate court administrator's proposed disposition takes effect immediately after the 10 business day period expires.

Emergency Action. If the probate court administrator, in consultation with the chief court administrator, determines that an emergency exists in a pending case because it has not been conducted within the required time frames, the Probate court administrator's proposed disposition takes effect when the probate judge receives notice. The proposed disposition is subject to the judge's right to a hearing and the decision of the review panel. But the validity of any order or decree made, proceeding held, or other action taken by a special assignment probate judge or another probate judge pursuant to such proposed disposition in such a matter is not affected by any review panel's subsequent decision.

Right to Appeal. The act gives any probate judge who is aggrieved by any decision to appeal to the superior court for the judicial district in which the judge's probate district is located. The appeal must be taken within 30 days after the decision. Appeals from any decision rendered in a case after a record is made must be on the record and not result in a new trial. In any such appeal, the court may grant whatever relief it determines appropriate.

Regulations. The act requires the probate court administrator to issue regulations concerning rules of procedure for review panel hearings. The rules must address:

1. the notice of the probate court administrator's determination and reasons for it;

4. evidence, subpoenas, productions of documents, continuances, intervenors, and the hearing record, and

5. the right to cross-examine, present arguments, and inspect and copy relevant materials.

Nomination and Appointment. The act authorizes the Supreme Court's chief justice to appoint special assignment probate judges nominated by the probate court administrator, from among current probate judges. A nominee must have demonstrated the special skill, experience, or expertise necessary to serve as a special assignment probate judge. A special assignment probate judge shall serve at the chief justice's pleasure.

The act requires the probate court administrator to issue regulations to establish requirements concerning the responsibilities of special assignment probate judges and the number, geographic distribution, and expertise of such judges.

Compensation. The act authorizes the probate court administrator, subject to the chief court administrator's approval, to fix the compensation of special assignment probate judges. The compensation is paid from the Probate Court Administration Fund on the probate court administrator's order. The act specifies that the compensation, including compensation that a special assignment probate judge receives as a probate judge of the district to which he or she was elected, may not exceed the maximum compensation for probate judges in a high volume court. (The maximum compensation for a high volume court is 75% of the salary of a Superior Court judge. Currently, a Superior Court judge is paid $ 146,780. Thus, the maximum a probate judge can earn is $ 110,085. )

The act specifies that a special assignment probate judge is only entitled to benefits due him or her as a probate judge and can not receive additional benefits, except compensation specified by the act.

The law allows the probate court to appoint a conservator of the estate for someone who cannot manage his or her affairs and a conservator of the person for someone incapable of caring for himself of herself. This act changes procedures for appointing conservators and designating their powers and sets procedures for appealing probate court decisions and filing habeas corpus petitions.

1. requires the probate court to record proceedings on appointing conservators, setting their powers and duties, and terminating conservatorships;

2. requires appeals of hearings appointing a conservator to be on record and sets the standard for court review;

3. changes the definitions of incapacity, which is required for the court to find appointment of a conservator necessary;

4. includes specific language for a notice to the person who is the subject of a petition for appointment of a conservator;

5. adds specific provisions about the right to an attorney and to choose an attorney, for a person who has a conservator appointed for him or her or is the subject of a petition for the appointment of one;

6. requires the probate court to consider certain factors and changes the standard the court must apply before deciding to appoint a conservator, including requiring a finding that appointing the conservator is the least restrictive intervention available to assist the person;

7. requires the probate court to give a conservator only the least restrictive duties and authority necessary to meet the person's needs, and the court must make specific findings on the need for each duty or authority;

8. requires a conservator to carry out the duties and authority assigned by the court in a manner that is the “least restrictive means of intervention” (§§ 19-20);

9. makes a number of similar changes to provisions on appointing a temporary conservator;

10. imposes specific requirements on the conservator of the person, including assisting in removing obstacles to the conserved person's independence, ascertaining the person's views, and making decisions that conform with the person's reasonable and informed preferences;

11. creates a procedure for the probate court to hold a hearing on changing a conserved person's residence similar to the provisions in the law for a conservator placing a person in a long-term care institution; and

12. allows a conserved person to petition the probate court to terminate the conservatorship at any time.

The act defines “least restrictive means of intervention” as intervention for a conserved person that is sufficient to provide, within the available resources of the person's estate or public or private assistance, for the person's personal needs or property management while allowing the greatest amount of independence and self-determination (§ 10).

The act also changes the term of someone who is subject to involuntary representation by a conservator from ward to a conserved person (§ 10). It makes numerous technical and conforming changes (§§ 7-9, 12, 26-32).

By law, the probate court can order an examination by a physician, psychiatrist, or psychologist in any matter where a party's capacity is at issue. The act allows someone who is under involuntary representation by a conservator to refuse an examination. It specifies that someone who is the subject of an application for involuntary representation by a conservator or temporary conservator can refuse. The law already allows them to refuse as part of the court proceedings on the application.

§ 2 — Time for Appeal. The act imposes new requirements on appeals to the Superior Court from probate orders, denials, or decrees when another law does not specify otherwise. It requires the appeal within 45 days after mailing the order, denial, or decree if it concerns (1) appointing a guardian or conservator for a veteran or beneficiary of veterans' benefits; (2) compensation of a guardian or conservator of a social services beneficiary or veteran; (3) investment of funds in insurance and annuity contracts by a conservator or guardian of the estate of a ward, conserved person, or incapable person; (4) payment by a guardian or conservator of administrative expenses of a deceased protected person; (5) many provisions regarding conservators such as naming a conservator for future incapacity, applying for and release from voluntary representation, appointment of involuntary representation, appointing temporary conservators, duties of conservators, and terminating conservatorship; (6) appointing guardians of mentally retarded people, their powers and duties; (7) sterilization; and (8) a guardian's or conservator's petition on competency to vote.

For other matters unless another statute applies, the act requires the appeal within 30 days of mailing the order, denial, or decree.

§ 2 — Service. Under the act, someone who files an appeal under these provisions must have a state marshal, constable, or indifferent person serve a copy of the complaint on the relevant probate court and all interested parties. Failure to do so does not deprive the Superior Court of jurisdiction. Service must be in hand but a copy can be left at the probate court or at an interested party's residence or address on file at the probate court. Service must be in hand for a conserved person or someone who is subject to a petition for conservatorship for matters relating to conservators.

Within 15 days of filing the appeal, the act requires the person who filed the appeal to file with the Superior Court clerk a document with the name, address, and signature of the person who served the complaint and the date and manner of service. If an interested party has not been served, on motion, the Superior Court must require notice as reasonably calculated to notify them.

§ 2 — Hearings. The act requires a hearing on an appeal in the following matters to begin within 90 days of its filing unless a stay is issued:

1. Commitment of a mentally ill child and status review of a voluntarily committed mentally ill child;

2. commitment of a person with psychiatric disabilities, their release or transfer; their medication, treatment, psychotherapy, or shock therapy; and medication of criminal defendants in Department of Mental Heath and Addiction Services' (DMHAS) custody;

4. appointing a conservator, appointing a temporary conservator, and terminating conservatorship;

5. appointing a guardian, plenary guardian, limited guardian, temporary limited guardian for a mentally retarded person, and court review of guardians or limited guardians;

§ 2 — Effect of Appeal. Under the act, filing the appeal does not stay enforcement of an order, denial, or decree. The act allows an appealing party to file a motion for a stay with the probate court or Superior Court, and filing with the probate court does not prevent action by the Superior Court.

The act provides that these procedures do not prevent someone aggrieved by the order, denial, or decree from filing a petition for habeas corpus, terminating involuntary conservatorship, or any other remedy, unless a law provides otherwise.

§§ 2-3 — Appeals on the Record. Under prior law, an appeal in a case where the parties agreed to have a record made was based on the record and was not a new trial. The act requires appeals on the record if a recording is made of proceedings (1) appointing conservators (the act requires these proceedings to be recorded) and (2) committing someone with psychiatric disabilities or for drug or alcohol treatment.

When the appeal is based on a hearing that was on the record, the act requires the probate court to transcribe any portion that has not been transcribed within 30 days of service, unless the Superior Court allows additional time. The person filing the appeal is charged the expense. If the person is unable to pay and files an affidavit showing it, the probate court administrator pays the expenses from the probate court administration fund.

The act requires the probate court to send the original or a certified copy of the entire record (including the probate court's separately stated findings of fact and conclusions of law) to the Superior Court.

Under the act, the appeals are heard by the Superior Court without a jury and can be referred to a state referee (a judge past the mandatory retirement age of 70 who continues to serve).

Under the act, the scope of the appeal is limited to the materials in the probate court record. The court can accept proof limited to alleged irregularities in procedure if the alleged irregularities or necessary facts to show it are not in the record. The Superior Court must hear oral argument and accept written briefs on a party's request.

§ 4 — Standard of Review When Proceedings are on the Record. When the appeal is based on a hearing that was on the record, the act prohibits the Superior Court from substituting its judgment for the probate court's on the weight of evidence on a question of fact. It requires the Superior Court to affirm the probate court's decision unless the substantial rights of the person appealing were prejudiced because the probate judge's findings, inferences, conclusions, or decisions:

1. violate the state or federal constitution or state statutes;

2. exceed the probate court's statutory authority;

3. were based on illegal procedures;

4. were affected by legal errors;

5. were clearly erroneous based on the reliable, probative, and substantial evidence on the whole record; or

6. were arbitrary, capricious, an abuse of discretion, or a clearly unwarranted exercise of discretion.

If prejudice is found, the Superior Court can return the case to the probate court for further proceedings or modify the probate court order, denial, or decree. A remand is a final judgment.

§ 5 — Costs for Appeals. The act allows a prevailing party to receive costs as in other Superior Court judgments.

If the person appealing cannot pay the costs of the appeal, he or she can (within the time allowed for the appeal) file an application with the court clerk to waive costs including bond. The application must conform with Superior Court rules. The court can hold a hearing if necessary and rule on the application, stating its findings of fact and conclusions.

The waiver application tolls the time for filing the appeal until the court renders judgment.

A fiduciary acting on a court order made after the appeal period expires is not liable for good faith actions unless the fiduciary has actual notice of the tolling of the appeal period. A fiduciary includes a conservator or guardian.

§ 33 — Repealed Provisions. The act deletes provisions requiring (1) an appeal from probate or the actions of commissioners to state the interest of the appellant in the motion unless the interest is apparent from the probate court's proceedings and records and (2) the probate court to order notice of appeal to interested person as reasonable and the court to hear the appeal without further notice.

For purposes of the provisions on conservators, prior law defined a person as “incapable of caring for himself or herself” if the person had a mental, emotional, or physical condition:

1. resulting from mental illness, mental deficiency, physical illness or disability, chronic drug or alcohol use, or confinement;

2. that made the person unable to provide medical care for physical or mental health needs, nutritious meals, clothing, safe and adequately heated and ventilated shelter, personal hygiene, and protection from physical abuse or harm; and

The act changes this and defines a person as “incapable of caring for himself or herself” if the person has a mental, emotional, or physical condition that makes him or her unable to receive and evaluate information or make or communicate decisions so that he or she cannot, even with appropriate assistance, meet essential requirements for personal needs. “Personal needs” include the need for food, clothing, shelter, health care, and safety.

The act makes a similar change to the definition of a person who is “incapable of managing his or her affairs. ” Under prior law, this was when a person (1) had a mental, emotional, or physical condition; (2) resulting from mental illness, mental deficiency, physical illness or disability, chronic drug or alcohol use, or confinement; and (3) that prevented the person from managing his or her affairs regarding property. The act instead defines it as when the person has a mental, emotional, or physical condition that results in being unable to receive and evaluate information or make or communicate decisions to an extent that he or she is unable, even with appropriate assistance, to manage his or her affairs regarding property.

It defines “property management” as actions to (1) obtain, administer, manage, protect, and dispose of real and personal property, intangible property, business property, benefits, and income and (2) deal with financial affairs.

The act requires the probate court to record all proceeding regarding appointing and paying conservators, setting their powers and duties, and terminating conservatorships. The recording is part of the court record and must be made and maintained in the manner set by the probate court administrator.

By law, an application for involuntary representation by a conservator must be filed in the probate district where the person resides or has his domicile. The act also allows an application in the district where the person is located at the time of filing.

The act prohibits granting an application regarding someone who does not have a domicile in Connecticut unless:

1. the person is presently in the probate district where the application is filed;

2. the applicant made a reasonable effort to notify (a) the person and any of his or her relatives who may be required by law to receive notice, (b) state agencies providing aid to the person, (c) a hospital or institution if the person is in one, and (d) others who the court orders to receive notice because they have an interest or the person requests it;

3. the person had an opportunity to return to his or her domicile and was given the financial means to do so (within his or her resources) but refused or (b) the applicant made reasonable but unsuccessful efforts to return the person to his or her domicile; and

If involuntary representation is granted, the act requires the court to review it every 60 days. Involuntary representation expires 60 days after the order or latest review unless the court makes the same findings as above, but the person must be located in Connecticut and the conservator is responsible for the required notice and efforts to return the person to his or her domicile. The act requires the court to consider reports from the conservator and the conserved person's attorney regarding these requirements.

If the person becomes domiciled in Connecticut after a conservator is appointed, these provisions no longer apply.

The act increases the penalties for fraudulent or malicious application or false testimony under the provisions on applying for involuntary representation. Under prior law, this was punishable by up to one year in prison, a fine of up to $ 1,000, or both. The act makes it a class D felony, punishable by up to five years in prison, a fine of up to $ 5,000, or both. The act also extends this penalty to fraudulent or malicious application or false testimony under the statute on compensation of a conservator when the ward cannot pay.

The act modifies the notice requirements for involuntary representation. By law, after receiving an application, the court issues a citation to certain parties to appear, which must be served on them at least seven days before the hearing. The act requires service at least 10 days before the hearing, but retains the seven-day limit for applications regarding people with psychiatric disabilities requesting medication, treatment, psychotherapy, and shock therapy, and medication of criminal defendants under DHMAS custody.

The law requires personal service on the person who is the subject of the petition and certain relatives. The act deletes a provision allowing the court to find that personal service is detrimental to the subject's health and welfare and to instead order service on counsel or an appointed attorney. The act provides that if personal service is not made on the person and required relatives, the court does not have jurisdiction over the application, and any action it takes has no legal effect.

As under prior law, the notice to the subject of the petition and any relatives required to receive notice must describe the involuntary representation sought and its consequences, the facts alleged in the application, the time of the hearing, the right to appear, and the subject's right to hire and be represented by an attorney. The act requires the notice to include a statement, in bold with 12-point print, about the hearing and the person's rights. The act includes sample language and, among other things, states:

1. if you are not able to access the court where the hearing will be held, you may request that the hearing be moved to a convenient location, even to your place of residence;

2. you should have an attorney represent you at the hearing, the court will appoint one if you cannot obtain one, the court will pay attorney fees if you cannot pay, and you may choose an attorney if the attorney will accept the attorney fees permitted by court rules;

3. the court may review any alternative plans you have to get assistance to handle your own affairs that do not require appointing a conservator;

4. the court may appoint a conservator and among the areas that my be affected are (a) accessing your money and paying acts, (b) deciding where you live, (c) medical decisions, and (d) managing your real and personal property; and

The act requires the court to relocate the hearing to a place where the subject of the hearing can attend if the person notifies the court that he or she wants to attend but is unable to do so. Under prior law, the court could only do this if the person could not attend because of physical incapacity and the court had the option of visiting the person before the hearing if he or she is in Connecticut when it was impractical to relocate the hearing.

The law gives a person a right to an attorney as the subject of a petition for involuntary representation and in proceedings involving temporary conservators and for terminating conservatorships. The law provides that the court will appoint counsel if the person cannot ask for or obtain counsel and will pay reasonable compensation, if the person is unable to, from Judicial Branch funds, if appropriated and if not available, from the probate court administration fund.

The act expands the right to legal representation by making it applicable to petitions for voluntary or involuntary representation and to all proceedings involving people under involuntary conservatorships. The act provides that the person has the right to choose that attorney.

The act provides that the court is not required to appoint an attorney if the person refuses representation and the court finds that he or she understands the nature of the refusal. If the court appoints the attorney, the act requires it to do so from a panel provided by the probate court administrator, according to regulations.

The act requires an appointed attorney to (1) represent the person in conservatorship proceedings; (2) consult with a conserved person about appealing adverse probate court rulings to the Superior Court; and (3) assist in filing and starting an appeal to the Superior Court if requested by the conserved person, without an obligation to participate in the appeal. The act prohibits a conservator from denying a conserved person access to his or her resources that are needed for an appeal.

Under the act, the person retains the right to replace his or her attorney with a different attorney of his or her choosing under these provisions. The fees of an attorney chosen by the person are subject to probate court approval or, if appealed, the Superior Court.

The act applies the same requirements in prior law for paying attorneys for indigent people but requires the Office of Probate Court Administrator to set reasonable rates of compensation for appointed attorneys.

The act prohibits an attorney representing someone in conservatorship proceedings from becoming the person's guardian ad litem or conservator unless the person (1) executed a legal document naming the attorney as conservator in the event of future incapacity or names the attorney in a similar document such as a trust or advance health care directive or (2) requests it during a conservator appointment hearing.

The act gives an attorney access to all information pertinent to the probate proceedings on presenting proof of authority. This includes immediate access to all medical records available to the client's treating physician.

The act requires certain conditions to be met before the court can hear evidence about the condition of the person or the person's finances in hearings on applications for involuntary representation. Under the act, (1) the court must find, by clear and convincing evidence, that it has jurisdiction and (2) the person who is the subject of the application must have (a) not