Topic:
LEGISLATION; GUARDIANSHIP; JUVENILES; JUDICIARY COMMITTEE; ADMINISTRATIVE PROCEDURE; JUDGES; CONSERVATORS; MUNICIPALITIES; PROBATE COURT;
Location:
COURTS - PROBATE;

OLR Research Report


Probate Courts

George Coppolo, Chief Attorney

2007-R-0457

August 3, 2007

TO THE READER

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).

TABLE OF CONTENTS

Table of Contents 3

summary 5

probate court administration (pA 07-184) 6

Minimum Standards for Probate Court Facilities 7

Minimum Hours 7

Additional Powers of Probate Court Administrator 7

Rule Making and Enforcement Authority 8

Power to Issue Regulations 8

Referral to the Judiciary Committee for Approval 9

Probate Court Administrator's Oversight 9

Enforcement of Statutes and Court Rules 9

Special Assignment Probate Judges 11

CONSERVATORS AND APPEALS OF CONSERVATORSHIPS AND GUARDIANSHIPS (PA 07-116) 12

1 — Refusing Medical Exams. 13

2-6, 33 — Appealing Probate Orders 13

10 — Defining Incapacity 16

11 — Recording Proceedings 17

13 — Applications Regarding a Person not Domiciled in Connecticut 17

13 — Penalties for Fraud or False Testimony in Applications 18

14 — Notice Requirements for Involuntary Representation Applications 19

14 — Inability to Attend the Hearing 20

15 — Appointing Attorneys 20

16 — Hearings on Involuntary Conservator Appointments 21

17 Notice of Pending Application for Conservator 24

18 — Appointing a Temporary Conservator 25

21- Changing a Person's Residence and Long-Term Care Placements 27

22- Property of Non-Residents 28

23- Terminating Conservatorship 29

24-25-Habeas Corpus Petitions 29

Alcohol or Drug Treatment Facilities 30

TEMPORARY CUSTODY OF A MINOR, REMOVAL OF A GUARDIAN, OR TERMINATION OF PARENTAL RIGHTS (PA 07-184) 31

REMOVAL OF PARENT AS GUARDIAN (PA 07-184) 31

APPOINTMENT OF GUARDIAN OR CO-GUARDIANS FOR A MINOR (PA 07-184) 32

GUARDIANSHIP OF A MENTALLY RETARDED PERSON (PA 07-184) 32

PETITION TO TERMINATE PARENTAL RIGHTS (PA 07-184) 32

DCF PETITION TO DETERMINATE IF CONTINUATION OF CARE FOR A CHILD VOLUNTARILY ADMITTED TO DCF IS IN THE CHILD'S BEST INTEREST (PA 07-184) 33

EMANCIPATION OF A MINOR (PA 07-184) 33

FILING A CLAIM FOR PATERNITY BY A PUTATIVE FATHER (PA 07-184) 33

REQUIREMENTS FOR FILING AN AFFIDAVIT IN LIEU OF ADMINISTRATION IN THE PROBATE OF A SMALL ESTATE (PA 07-32) 34

THE DEPARTMENT OF MENTAL RETARDATION (PA 07-238) 34

Plenary Guardians 34

Repealed Reports 35

EXPANDING THE SUBSIDIZED GUARDIANSHIP PROGRAM TO SIBLINGS OF CHILDREN LIVING WITH RELATIVE CAREGIVERS (PA 07-174) 36

THE RIGHT OF FOSTER PARENTS, PROSPECTIVE ADOPTIVE PARENTS AND RELATIVE CAREGIVERS TO BE HEARD IN CERTAIN LEGAL PROCEEDINGS (PA 07-174) 36

Subsidized Guardianship 36

Participating in Abuse and Neglect Hearings 37

APPOINTMENT AND POWERS OF CONSERVATORS AND SPECIAL LIMITED CONSERVATORS WITH RESPECT TO PSYCHIATRIC TREATMENT (PA 07-117) 37

Hearing Notices 38

Background 38

EXTENSION OF AUTOMATIC SUSPENSION OF PRIOR SUPPORT ORDER OR CHANGE OF PAYEE WHEN COURT TRANSFERS CUSTODY IN FAMILY RELATIONS MATTERS BUT FAILS TO ADDRESS SUPPORT (PA 07-247 60) 38

EXTENDED FAMILY GUARDIANSHIP
(PA 07-4, June Special Session 6)
39

adoption (PA 07-115) 39

council on Probate JUDICIAL conduct (Pa 07-115) 40

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

SUMMARY

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.

Among the act's most important changes, it:

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).

PROBATE COURT ADMINISTRATION (PA 07-184)

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.

EFFECTIVE DATE: July 1, 2007

Minimum Standards for Probate Court Facilities

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.

Minimum Hours

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.

Additional Powers of Probate Court Administrator

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.

Rule Making and Enforcement Authority

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.

Power to Issue Regulations

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

1. auditing;

2. reassignment and transfer of cases;

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.

Referral to the Judiciary Committee for Approval

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.

Probate Court Administrator's Oversight

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.

Enforcement of Statutes and Court Rules

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;

2. the content of a request for a hearing and notice of hearing;

3. hearing procedure;

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.

Special Assignment Probate Judges

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.

CONSERVATORS AND APPEALS OF CONSERVATORSHIPS AND GUARDIANSHIPS (PA 07-116)

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.

Among the act's most important changes, it:

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).

EFFECTIVE DATE: October 1, 2007

1 — Refusing Medical Exams.

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.

2-6, 33 — Appealing Probate Orders

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;

3. involuntary commitment for alcohol or drug dependency;

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;

6. hearings on sterilization;

7. a guardian's or conservator's petition on competency to vote; and

8. termination of parental rights.

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.

10 — Defining Incapacity

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

3. that endangered the person's health.

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.

11 — Recording Proceedings

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.

13 — Applications Regarding a Person not Domiciled in Connecticut

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

4. the statutory requirements for appointing a conservator are met.

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.

13 — Penalties for Fraud or False Testimony in Applications

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.

14 — Notice Requirements for Involuntary Representation Applications

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

5. you may participate in selecting the conservator.

14 — Inability to Attend the Hearing

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.

15 — Appointing Attorneys

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.

16 — Hearings on Involuntary Conservator Appointments

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) notice, and (b) been advised of the right to an attorney and either be represented by an attorney or waived the right to one. The person who is the subject of the application has the right to attend all hearings.

Prior law required the applicant to submit a written report or testimony by at least one licensed physician who examined the person within 30 days of the hearing, including information about the person's disability and its incapacitating effect. The act changes these requirements by (1) extending the examination period to 45 days before the hearing and (2) allowing the court to waive the evaluation.

Prior law permitted probate court judges to consider other forms of evidence at these hearings. The act requires the probate court to use the Superior Court rules of evidence and requires testimony under oath or affirmation.

The act eliminates a specific provision requiring the court, on Department of Social Services' request, to order an examination of an elderly person subject to a protective supervision petition by a physician, psychologist, or psychiatrist regardless of reports submitted by the elderly person or his or her caretaker.

The act requires, rather than permits as under prior law, the court to order all required medical information disclosed. Under the act, disclosure is to the attorney for the person who is the subject of the application or, on request, to the person. The act allows the court to order disclosure to anyone else it deems necessary.

Factors in Decisions on Appointing Conservators. As under prior law, the court must consider any previous alternate arrangements for care for the person or his or her affairs, including a durable power of attorney, health care agents, or similar documents. The act requires the court to consider the adequacy of these arrangements and also requires considering any springing power of attorney, health care representative, living will, or trust.

The act requires the court to consider certain factors before making a decision on whether to appoint a conservator. The act deletes a specific provision that the court is guided by the person's best interests when making this decision and in selecting the conservator. The act adds consideration of the following factors:

1. the person's abilities;

2. the person's capacity to understand and articulate an informed preference about his or her care or affairs;

3. any relevant and material information from the person;

4. evidence of the person's past preferences, lifestyle choices, and cultural background;

5. the desirability of continuity in the person's life and environment;

6. any relevant and material evidence from the person's family or anyone else about the person's past practices and preferences; and

7. any supportive services, technologies, or other means available to assist the person in meeting his or her needs.

Standard in Decision-Making. The act prohibits appointing a conservator if the person's personal needs and property management are adequately cared for by an agency or individual appointed under a power of attorney or health care directive.

Conservator of the Estate. Under prior law, the court had to appoint a conservator of the estate if (1) clear and convincing evidence showed that the person is incapable of managing his or her affairs and (2) it did not appear that the affairs are being managed properly without a conservator.

The act instead allows the court to appoint a conservator after considering the factors listed in the section above if it finds by clear and convincing evidence that (1) the person cannot manage his or her affairs, (2) the person's affairs cannot be managed adequately without appointing a conservator, and (3) appointing a conservator is the least restrictive intervention available to assist the person in managing his or her affairs.

Conservator of the Person. Under prior law, the court has to appoint a conservator of the person if (1) clear and convincing evidence showed that the person is incapable of caring for himself or herself and (2) it did not appear that the person was being properly cared for without a conservator.

The act instead allows the court to appoint a conservator after considering the factors listed in the section above if it finds by clear and convincing evidence that (1) the person is incapable of caring for himself or herself, (2) the person cannot be adequately cared for without appointing a conservator, and (3) appointing a conservator is the least restrictive intervention available to assist the person in caring for himself or herself.

Naming a Conservator. Under prior law, a person could request, if capable of forming an intelligent preference, someone to act as his or her conservator. The act also allows a person to name a conservator in a legal document to take effect in the event of future incapacity or in an advance health care directive. Under prior law, the court had to accept an appointment unless it was not in the person's best interests. The act instead requires the court to accept the appointment unless the nominee is unwilling or unable to serve or there is substantial evidence to disqualify the person.

The law allows the appointment as conservator of any qualified person or an authorized public official or corporation. The act adds the following considerations when deciding who to appoint as conservator:

1. the proposed conservator's knowledge of the person's preferences regarding care or management of the affairs;

2. the proposed conservator's ability to carry out a conservator's duties, responsibilities, and powers;

3. the costs of the proposed conservatorship to the estate or the person;

4. the proposed conservator's commitment to promoting the person's welfare and independence; and

5. any existing or potential conflicts of interest.

The act eliminates a provision requiring the court to make and furnish findings of fact to support its conclusion within 30 days if it is requested by the person who is the subject of the hearing or his or her counsel.

Powers of Conservators. Under prior law, the court could limit the powers and duties given to a conservator but it had to make specific findings to justify any limitation. Prior law required the court to consider the conserved person's abilities; the prior appointment of an attorney, health care representative, trustee, or other fiduciary to act for the person; available support services; and other relevant evidence.

The act requires the court to give a conservator only the duties and authority that are the least restrictive intervention necessary to meet the person's needs and that the management be provided in an appropriate manner. The act requires the court to find by clear and convincing evidence that the duties and authority restrict the person's decision-making only to the extent necessary to provide for personal needs or property management. The court must make a finding of the clear and convincing evidence that supports the need for each duty and authority. The act provides that the person retains all rights and authority not expressly given to the conservator.

The act requires a conservator to follow all health care decisions by a person's health care representative, based on an advance health care directive, unless the court or the law provides otherwise.

The act provides that nothing in the statutory provisions about conservators limits a conserved person's right to an attorney or to seek redress in a court or agency, including using a habeas corpus petition regarding limits imposed on the person by the court regarding conservators and the provisions dealing with people with psychiatric disabilities, and treatment for addictions. In any other proceeding where the conservator retains counsel for the conserved person, the person can request that the probate court direct the conservator to substitute an attorney of the person's choosing.

17 Notice of Pending Application for Conservator

While an application to appoint a conservator is pending, the law allows the person who filed it to:

1. record notice of the application with the clerk in any town where the alleged incapable person resides or has property in order to invalidate any contracts or conveyance of real property without court approval, until the application is adjudicated, and

2. file notice of the application with a bank to prevent withdrawal of the alleged incapable person's funds without court approval, until the application is adjudicated.

The act requires these notices to be copies certified by the court. It requires the original to be filed with the court.

EFFECTIVE DATE: October 1, 2007

18 — Appointing a Temporary Conservator

Standard for Appointment. By law, a probate court can appoint a temporary conservator if a person is incapable of managing his or her affairs or caring for himself or herself and immediate or irreparable injury to mental or physical health or financial or legal affairs will result without appointing a temporary conservator. The act additionally requires the appointment to be the least restrictive intervention available to prevent the harm and the court to make all of these findings by clear and convincing evidence.

The act requires, instead of allows as under prior law, the temporary conservator to give a probate bond.

Prior law required the court to make specific findings to justify limitations on the temporary conservator's powers. The act instead requires specific findings, supported by clear and convincing evidence, (1) of the immediate and irreparable harm that will be prevented by appointing a conservator and (2) that support appointing the temporary conservator. It also requires the court to list each duty or authority given the temporary conservator.

Term. By law, a temporary conservator's appointment is for up to 30 days unless an application for a conservator is filed during that period, in which case the court can extend the term for up to 30 days or until the application is decided, whichever occurs first. The act specifies that a temporary conservator's appointment cannot exceed 60 days from the initial appointment date.

Application, Notice, and Hearing. Unless excused, the law requires a physician's report before appointing a temporary conservator. The act requires the report to be filed with the application. Current law allows the court to order this medical information disclosed. The act requires disclosure to the subject of the application on request, his or her attorney, and other parties the court considers appropriate.

The act requires the court, on receiving an application, to notify the subject of the application, appoint counsel for the person, and hold a hearing in the same manner as for other involuntary conservators (see 14-16 above).

The act requires notice to the subject of the application at least five days before the hearing and the hearing must be within seven days of the application's filing (excluding weekends and holidays). If the application is made ex parte (without holding a hearing or giving advance notice to other parties), this notice can be made within 48 hours after the ex parte appointment of a temporary conservator and the hearing must be held within three days of the ex parte appointment (excluding weekends and holidays). The law requires a hearing within 72 hours of the application (excluding weekends and holidays) unless continued for cause and notice to the next of kin and the person's attorney.

The act requires the notice to be served in hand by a state marshal, constable, or indifferent person. As under current law, it must include:

1. a copy of the application and accompanying physician's report;

2. a copy of the ex parte order, if any; and

3. the time and place of the hearing.

The act prohibits the court from appointing a temporary conservator until it makes the required findings and holds a hearing, except under the ex parte appointment provisions.

If notice is given to the next of kin, the act prohibits the court from disclosing the physician's report to that person without a court order.

Ex Parte Appointments. Prior law authorized a court to appoint a temporary conservator ex parte and hold a hearing within 72 hours of the appointment. The act requires the hearing within three days and provides that the ex parte order expires within three days of its issuance unless the hearing begins during that period and is continued for cause.

Medical Examination. By law, the court can waive the medical examination requirement if the person refuses an examination. The act provides that if the court waives the requirement, it cannot appoint a temporary conservator unless clear and convincing evidence shows that (1) the person is incapable of managing his or her affairs or caring for himself or herself or (2) immediate and irreparable harm to the person's mental or physical health or financial or legal affairs will result without appointing a temporary conservator.

Changing Residence. The act removes a provision that a temporary conservator cannot change the person's residence without notifying the court and obtaining specific court findings after a hearing. It also eliminates procedures for placing a person in an institution for long-term care. Conservators of the person retain the ability to do so, although the act sets new standards they must use.

Final Accounting. The law requires a temporary conservator to file a written report with the court when the temporary conservatorship ends. The act also requires a final accounting if it is directed by the court.

20- Duties of a Conservator of the Person

The act requires a conservator of the person to carry out the duties and authority expressly assigned by the court in a manner that is the least restrictive intervention. The conservator must also:

1. assists the person in (a) removing obstacles to independence and (b) achieving self-reliance,

2. ascertain the person's views,

3. make decisions conforming with the person's reasonable and informed expressed preferences,

4. make all reasonable efforts to ascertain the person's health care instructions and other wishes, and

5. make health care decisions conforming with (a) the person's expressed preferences including instructions and other wishes in an advanced health care directive or (b) a decision of a health care representative unless the law allows the conservator's decision to take precedence.

The act requires the conservator to give the person (1) the opportunity for meaningful participation in decision-making based on the person's abilities and (2) reasonable responsibility for decisions affecting his or her well-being.

The law requires a conservator to report at least annually to the probate court on the person's condition. The act also requires the report to address efforts made to encourage the person's independence and a statement on whether appointing a conservator is the least restrictive means of intervention for managing the person's needs.

21- Changing a Person's Residence and Long-Term Care Placements

By law, a conservator of the person has the power to change a person's place of abode. The act sets rules for doing so.

It prohibits a conservator from ending a person's tenancy or lease, selling or disposing of real property or household furnishings, or changing the person's residence unless a probate court holds a hearing and finds that (1) the termination, sale, disposal, or change is necessary or (2) the person agrees to it.

It creates a procedure for filing a report and holding a hearing on changing the person's residence that is similar to provisions in the law for a conservator placing a person in a long-term care institution.

The act requires the conservator, when he or she determines it is necessary to change the person's residence, to file a report of the intended change with the probate court. The court must hold a hearing to consider the report and the conservator can make the change if the court grants permission after the hearing. The hearing must be at least five days after filing the report (excluding weekends and holidays) and at least 72 hours before the change of residence.

The person can waive the right to a hearing after consultation with an attorney if the attorney files a waiver with the court, but it is invalid if it does not represent the person's wishes.

The act also applies these procedures to placing the person in a long-term care institution. By doing so, it changes prior law by:

1. requiring the hearing rather than only requiring it on request of the person or an interested party or on the court's motion, but adds the provision on waiving the hearing;

2. eliminating provisions allowing placement before filing a report based on avoiding irreparable harm;

3. requiring notice to the person's attorney, in addition to the person and interested parties as required by the law, and requires service by first-class mail with the conservator certifying that service was made;

4. allowing the person to request a hearing at any time, following the procedures described above;

5. expanding the definition of an “institution for long-term care” to include a residential care home, extended care facility, nursing home, rest home, or rehabilitation hospital or facility (as under the law, it also includes a federally-certified skilled nursing facility or intermediate care facility).

As under the law, the act still allows placement in a long-term care institution on discharge from a hospital before filing a report and requires filing the report within five days. The act also requires the report to include related circumstances requiring the placement. It prohibits such a placement from continuing unless the probate court orders it after a hearing.

22- Property of Non-Residents

The law sets procedures for the probate court to appoint a conservator of the estate for a person who is not domiciled in Connecticut but has real or personal property in this state. The act prohibits the court from acting on an application for this purpose until an attorney is appointed under the act's provisions to represent the person.

The law allows the proceeds from the sale of the real or personal property to be transferred to the conservator or similar individual who is in charge of the incapable person or his or her estate in the other state. The act also allows transfer of the tangible personal property itself.

23- Terminating Conservatorship

The act allows a conserved person to petition the probate court to terminate the conservatorship at any time. The petition is determined based on the preponderance of the evidence and a person does not need to present medical evidence. The court must hold a hearing within 30 days of the petition's filing except for good cause. The conservatorship terminates if the hearing is not held within the 30-days or any extended period granted for good cause.

Prior law required the court to review the conservatorship at least every three years. The act instead requires a review within one year of ordering the conservatorship and at least every three years after that. Prior law required the conservator, person's attorney, and a physician to submit written reports within 45 days of the court's request. The act deletes the requirement for the attorney's report and requires the court to provide copies of the other reports to the conserved person and his or her attorney.

The law allows the court to order disclosure of medical information and the act requires disclosure to the conserved person's attorney.

The act requires the conserved person's attorney, within 30 days of receiving the reports of the conservator and physician, to notify the court (1) that he or she has met with the conserved person and (2) whether a hearing is requested, although it does not prohibit either the person or the attorney from requesting one at any other time the law permits.

Under prior law, the court was not required to hold a hearing unless requested by the attorney, physician, or conservator if it found that the person's condition did not change since the court's last review based on the filed reports. The act also does not require a hearing unless requested but changes the standard: the court must find by clear and convincing evidence that the conserved person continues to be incapable of managing his or her affairs or incapable of caring for himself or herself and there is no less restrictive means available to assist in managing the affairs or caring for the person. The act then allows the court to continue or modify the conservatorship but requires it to terminate the conservatorship if it does not make these findings.

24-25-Habeas Corpus Petitions

The act provides that a person under involuntary conservatorship and minors or mentally retarded people under guardianship can use a writ of habeas corpus without exhausting other available remedies such as appealing the court order of guardianship or conservatorship. The court must then determine the legality of the guardianship or conservatorship. The writ must be directed to the guardian or conservator and, if alleging that the guardianship or conservatorship is illegal or invalid, to the court that issued the order.

The application for habeas corpus can be brought in the Superior Court or probate court. If brought to the probate court, the probate court administrator must appoint three probate judges to hear the application from a list of those approved to hear these cases by the chief justice. The probate judge who issued the order cannot sit on the panel. The judges choose a chief judge. All proceedings are recorded, the recording is part of the record, and it is retained in the probate court that appointed the conservator or guardian in a manner set by the probate court administrator. Applications cannot be denied unless two judges vote to do so.

Hearings are held within 10 days (excluding weekends and holidays) after return of service of the writ. If the representation or guardianship is determined legal, the decision (1) is a final judgment subject to appeal and (2) does not bar another writ if it is claimed that (a) the person is no longer subject to the condition for which the person was under conservatorship or (b) the application is based on a different ground. The individual subject to the guardianship or conservatorship or a relative, friend, or person interested in his or her welfare can apply for the writ.

An appeal to the Superior Court from a probate judge panel is filed in the judicial district for the probate court that appointed the guardian or conservator. The appeal is heard within 30 days of return of service of the appeal.

Alcohol or Drug Treatment Facilities

Under the act, someone confined in a hospital or inpatient treatment facility for alcohol or drug dependency treatment can seek a writ of habeas corpus in Superior Court. The court or judge issuing the writ determines the legality of confinement. The writ is directed to the facility's superintendent or director and the judge of the committing court, if commitment is allegedly illegal or invalid. The act requires the state's attorney for the relevant judicial district to represent the judge. If the confinement is determined legal, it does not bar another writ if it claims the individual is no longer subject to the condition for which the individual was confined. The confined person, a relative, a friend, or person interested in the individual's welfare can bring the writ.

The act prohibits charging court fees to the judge or hospital superintendent or director.

TEMPORARY CUSTODY OF A MINOR, REMOVAL OF A GUARDIAN, OR TERMINATION OF PARENTAL RIGHTS (PA 07-184)

Under prior law, in a hearing for temporary custody of a minor, the court has to order notice by regular mail to the DCF commissioner and by personal service by a state marshal, a constable, or other legally authorized officer to both parents and to the minor child, if over 12 years of age, at least five days before the hearing date.

The act, instead, requires notice by first class mail to the DCF commissioner and allows abode or service at the parent's usual place of abode or the minor's usual place of abode, as the case may be.

Under prior law, if a parent or the father of a minor child born out of wedlock who was either an applicant or who signed under penalty of false statement a written waiver of personal service on a form provided by the probate court administrator, the court has to order notice to be given by certified mail, return receipt requested, deliverable to addressee only, at least five days before the date of the hearing.

The act, instead, allows notice to be given by first class mail if personal or abode service is waived.

EFFECTIVE DATE: October 1, 2007

REMOVAL OF PARENT AS GUARDIAN (PA 07-184)

In a hearing on an application to remove a parent or guardian, prior law required the court to order notice by regular mail to the DCF commissioner and by personal service to both parents and the minor, if over 12 years of age, at least 10 days before the hearing. The act, instead, requires notice by personal service or service at the parent's usual place of abode or the minor's usual place of abode, as the case may be.

Under prior law, instead of personal service on a parent or the father of a child born out of wedlock who was either a petitioner or who signed under oath a written waiver of personal service on a form provided by the probate court administrator, the court has to order notice to be given by certified mail, return receipt requested, at least 10 days before the hearing date. The act, instead, allows notice to be given if personal or abode service is waived by first class mail.

Under prior law, if the parents resided out of or are absent from the state, the court has to order notice to be given by certified mail, return receipt requested at least 10 days before the date of the hearing. The act allows notice by first class mail instead.

EFFECTIVE DATE: October 1, 2007

APPOINTMENT OF GUARDIAN OR CO-GUARDIANS FOR A MINOR (PA 07-184)

The act requires the court to order notice of the hearing to be given to the minor, if over 12 years of age, by first class mail instead of by certified mail, return receipt requested, deliverable to the addressee only, at least 10 days before the date of the hearing. It requires notice by first class instead of regular mail to be given to the petitioner and all other parties in interest known by the court.

EFFECTIVE DATE: October 1, 2007

GUARDIANSHIP OF A MENTALLY RETARDED PERSON (PA 07-184)

The act requires the probate court to order notice by first class mail, instead of certified mail, regarding the appointment of a guardian of a mentally retarded person to the following:

1. the respondent's parents, if they are not the applicants;

2. the respondent's spouse, if the spouse is not the applicant;

3. the respondent's children, if any; and

4. the person in charge of the hospital, nursing home, residential facility, or other institution in which the respondent may reside.

EFFECTIVE DATE: October 1, 2007

PETITION TO TERMINATE PARENTAL RIGHTS (PA 07-184)

Regarding petitions to terminate parental rights, the act requires that notice of the hearing and a copy of the petition, certified by the petitioner, the petitioner's agent or attorney, or the court clerk must be served at least 10 days before the hearing by personal service or abode service on the following persons who are within Connecticut:

1. the minor child's parent or parents, including any parent removed as guardian;

2. the father of any minor child born out of wedlock, if at the time of the filing of the petition (a) he was adjudicated the father by a court of competent jurisdiction, (b) he has acknowledged in writing that he is the father, (c) he has contributed child support regularly, (e) his name appears on the child's birth certificate, (f) he has filed a paternity claim, or (g) he has been named in the petition as the father of the child by the mother; and

3. the guardian or any other person whom the court deems appropriate.

The act requires notice by first class mail, instead of certified mail, return receipt requested, on the commissioner of Children and Families and the attorney general.

Under prior law, the court could order notice to be given by certified mail return receipt requested, deliverable to addressee only to a parent or the father of a child born out of wedlock who (1) is either a petitioner or (2) signs under penalty of false statement a waiver of personal service. The act instead allows service by first class mail if personal or abode service is waived.

EFFECTIVE DATE: October 1, 2007

DCF PETITION TO DETERMINATE IF CONTINUATION OF CARE FOR A CHILD VOLUNTARILY ADMITTED TO DCF IS IN THE CHILD'S BEST INTEREST (PA 07-184)

The act requires the court to order notice of the continuity of care hearing to be given by first class, instead of regular, mail at least five days before the hearing to the DCF commissioner, and by first class mail, instead of certified mail, return receipt requested, at least five days before the hearing to the parents or guardian of the child and the minor, if over age 12.

EFFECTIVE DATE: October 1, 2007

EMANCIPATION OF A MINOR (PA 07-184)

Prior law required the court to cause notice of an emancipation hearing to be served on the minor and the minor's parent, if the parent is not the petitioner, at least seven days before the hearing date, by a state marshal, constable, or indifferent person. The act specifies that this may be by either personal service or service at the minor's place of abode and the parent's place of abode.

The act requires the court to direct notice by first class mail instead of certified mail to the parent, if the parent is the petitioner.

By law, the court may order whatever notice it directs to the DCF commissioner, the attorney general, and other persons having an interest in the minor.

EFFECTIVE DATE: October 1, 2007

FILING A CLAIM FOR PATERNITY BY A PUTATIVE FATHER (PA 07-184)

Prior law required that within five days after the filing of a claim for paternity, the judge must order a certified copy of the claim to be mailed by certified mail to the mother or prospective mother of such child at the last-known address shown on the claim for paternity and to the Attorney General. The act instead requires personal or abode service on the mother or prospective mother and service by first class mail on the Attorney General.

EFFECTIVE DATE: October 1, 2007

REQUIREMENTS FOR FILING AN AFFIDAVIT IN LIEU OF ADMINISTRATION IN THE PROBATE OF A SMALL ESTATE (PA 07-32)

This act raises from $20,000 to $40,000 the threshold of the value of decedent's estates that are eligible for expedited probate proceedings.

Instead of filing an application for admission of a will to probate or letters of administration, the law allows certain people to file an affidavit with probate court. The affidavit must state that all the decedent's debts have been paid as prescribed by law, at least to the extent of the fair value of the decedent's assets. Prior law allowed this affidavit when (1) the decedent left certain types of property and (2) the property's aggregate value did not exceed $20,000. The act increases the aggregate value to $40,000.

EFFECTIVE DATE: October 1, 2007

THE DEPARTMENT OF MENTAL RETARDATION (PA 07-238)

This act prohibits a probate court from excluding people from being a plenary or limited guardian of a person with mental retardation solely because they (1) work for a private agency the Department of Mental Retardation (DMR) funds or licenses or (2) operate a DMR-licensed community training home.

It permits the Children and Families (DCF) and Mental Health and Addiction Services (DMHAS) departments to access DMR's abuse registry to check whether a job applicant is listed.

It increases, to $100,000 from $75,000, the cost allowance cap for executive director salaries in DMR's, DMHAS', and the Department of Social Services' calculations of grants to private agencies for residential or day services. And, beginning July 1, 2007, it permits the cap to rise annually up to any percentage cost-of-living increase provided in the departments' contracts with these agencies.

The act extends through June 30, 2009 the moratorium on the sale, lease, or transfer of state-owned or state-operated property used to house people with mental retardation. The moratorium is otherwise scheduled to expire on June 30, 2007. It does not apply to any agreement to sell, lease, or transfer property entered into before June 2, 2005.

Finally, the act repeals several reporting requirements, some of which are obsolete.

Plenary Guardians

Probate courts appoint plenary and limited guardians for people with mental retardation. A plenary guardian acts for someone who cannot take care of his or her physical health or safety or make informed decisions about it; a limited guardian acts for those who can take care of or make informed decisions about some, but not all, aspects of their health or safety. The act prohibits a probate court from excluding someone from serving in these roles solely because he or she works for a private agency DMR licenses or funds or operates a DMR-licensed community training home. But it specifies that people:

1. cannot serve as guardians for individuals who live in the residential facilities in which they work or the community training homes they operate (this latter prohibition extends to a training home operator's relatives and household members) and

2. can be appointed only if no other suitable person can be found to serve.

The law already prohibits excluding DMR employees from serving in these roles, with similar exceptions.

Repealed Reports

The act repeals requirements that:

1. DMR evaluate and annually report to the Public Health and Appropriations committees on how each of its regions adheres to its (the region's) written protocol for selecting service providers and determining which clients receive services;

2. DMR report annually to the Public Health and Appropriations committees on the status of its waiting list and its establishment of a Recreation and Respite Care Division;

3. DMR annually submit to the Public Health and Appropriations committees a proposed spending plan for residential and day services;

4. DMR, DMHAS, and DCF provide technical support to private providers in reducing work-related injuries and report annually on resulting cost savings;

5. DMR annually report to the education commissioner on its evaluation of Unified School District #3, which DMR operates as part of the Birth-to-Three system;

6. the Southbury Training School board of trustees annually review the school director's report and report to the Council on Mental Retardation on the school's status, operation, and administration; and

7. DMR report to the Public Health Committee by January 1, 1996 on criteria for placing Southbury Training School residents.

The act also eliminates the Advisory Commission on Services and Supports for People with Developmental Disabilities, which produced its final report in July 2002

EFFECTIVE DATE: October 1, 2007, except for the executive director salary cap increase and the moratorium extension, which are effective upon passage.

EXPANDING THE SUBSIDIZED GUARDIANSHIP PROGRAM TO SIBLINGS OF CHILDREN LIVING WITH RELATIVE CAREGIVERS (PA 07-174)

This act makes more guardians eligible for cash and medical assistance through the Department of Children and Families' (DCF) Subsidized Guardianship Program. The program was previously restricted to relatives taking care of children whose parents were either dead or unlikely to be able to care for them within the foreseeable future. Under the act, caregivers qualify for additional subsidies when they assume guardianship of the child's half- or step-siblings to whom they are not related.

Under existing law, DCF's Kinship Navigator program must provide relative caregivers with information about state services and benefits for which they may be eligible. The act specifies that the program is for relatives taking care of children under age 18.

The act also gives foster parents, prospective adoptive parents, and relative caregivers the right to be heard at all proceedings concerning an abused or neglected child they are caring for or who was under their care in the last year. Prior law gave only some foster parents the right to be heard in some types of proceedings.

EFFECTIVE DATE: October 1, 2007

THE RIGHT OF FOSTER PARENTS, PROSPECTIVE ADOPTIVE PARENTS AND RELATIVE CAREGIVERS TO BE HEARD IN CERTAIN LEGAL PROCEEDINGS (PA 07-174)

Subsidized Guardianship

By law, the subsidized guardianship program subsidizes DCF-approved relatives who have (1) foster care licenses, (2) been taking care of the child for at least six months, and (3) a probate court order naming them the child's guardian. The subsidy includes (1) a one-time payment of up to $500 for expenses associated with taking the child in, unless the costs can be paid from another source; (2) HUSKY A medical insurance, unless the child has private coverage; and (3) monthly cash payments that equal the prevailing foster care rate.

The act provides the same subsidy for each additional step- and half-sibling. By law, subsidies generally end on the child's 18th birthday, but continue through age 20 when he or she is enrolled full-time in college, technical school, or a state-accredited job training program.

Prior law required DCF to provide the subsidy after the child had been living in an approved household for at least 18 months, but permitted subsidies, within appropriations, after six months. The act requires that approved caregivers become eligible for subsidies after six months, but retains the limitation that subsidies for care given between six and 18 months be made within the department's available appropriations.

Participating in Abuse and Neglect Hearings

Prior law required courts to notify a child's foster parents about scheduled hearings concerning DCF's permanency plan or commitment revocations and required that they be given an opportunity to be heard. It also required courts to permit former foster parents to be heard on these matters and on requests to change the child's placement if they had cared for the child in the last year, so long as the child lived with them for at least six months.

The act extends the notice and hearing requirements to prospective adoptive parents and relative caregivers. It modifies the restriction on recent foster parents, eliminating the requirement that the child have lived with them for at least six months. It permits recent prospective adoptive parents and relative caregivers to be heard in the same manner.

EFFECTIVE DATE: October 1, 2007

APPOINTMENT AND POWERS OF CONSERVATORS AND SPECIAL LIMITED CONSERVATORS WITH RESPECT TO PSYCHIATRIC TREATMENT (PA 07-117)

The act specifies that “clear and convincing evidence” is the legal standard probate courts must apply when deciding motions to allow:

1. conservators and special limited conservators to consent to the administration of psychiatric medication on behalf of incompetent patients or criminal defendants;

2. psychiatric facilities to administer psychiatric medication to patients or criminal defendants who have refused to take it and pose a direct threat of harm to themselves or others; or

3. special limited conservators to consent to release a criminal defendant's medical records to the psychiatric facility that is treating him or her.

Prior law had no explicit legal standard for making these decisions and no provision allowing representatives to consent to the release of a defendant's medical records.

The act also establishes legal process and notice provisions for probate court hearings involving special limited conservator appointments. In most respects they mirror existing laws governing conservator appointments.

Hearing Notices

The act's provisions concerning service of legal process and notices are the same as existing requirements for conservator appointment hearings except:

1. family members and designated state and local officials, who must be given advance notice of conservatorship hearings, need not be notified of special limited conservatorship hearings, and

2. the court has discretion to notify other people, including the defendant requests, and to prescribe the notification methods to be used.

EFFECTIVE DATE: October 1, 2007

Background

Special Limited Conservators. PA 04-160 creates a civil procedure for involuntarily administering psychiatric medication to criminal defendants with serious mental illnesses committed to the Department of Mental Health and Addiction Services for treatment to restore their competency to stand trial. It authorizes probate courts to appoint special limited conservators with the power to give or withhold consent to the administration of suggested medication.

EXTENSION OF AUTOMATIC SUSPENSION OF PRIOR SUPPORT ORDER OR CHANGE OF PAYEE WHEN COURT TRANSFERS CUSTODY IN FAMILY RELATIONS MATTERS BUT FAILS TO ADDRESS SUPPORT (PA 07-247 60)

The law established by PA 04-100, requires that if a Probate Court in a guardianship matter or the Superior Court in a juvenile matter changes the custody of a child who is subject to a pre-existing support order but fails to address a change in support, the custody change operates to (1) automatically suspend the pre-existing support order if custody is transferred to the obligor under the support order or (2) modify the payee of the support order to be the person the court awards custody to, if that person is someone other than the obligor.

The act extends this requirement to all types of Superior Court family relations matters, not just juvenile matters.

EFFECTIVE DATE: October 1, 2007

EXTENDED FAMILY GUARDIANSHIP (PA 07-4, JUNE SPECIAL SESSION 6)

Within available appropriations, the act directs the probate court administrator to establish an Extended Family Guardianship and Assisted Care Pilot Program in the New Haven regional children's probate court. The program's purpose is to reduce the number of abused or neglected children placed out of their communities and in foster care. It must be designed to reach out to local family members and appoint them as guardians. Under the act, each relative appointed guardian is eligible for a grant of up to $500 per child. The program must also have a component for recruiting volunteers to act as guardians' assisted care providers.

The court administrator must establish eligibility criteria by adopting regulations under the Uniform Administrative Procedures Act.

EFFECTIVE DATE: October 1, 2007

ADOPTION (PA 07-115)

The act permits people (1) born outside the United States and (2) adopted by Connecticut residents to obtain a probate court ruling to establish their biological age and date of birth. It requires the Department of Public Health (DPH) to conform its records to the court decree.

The act permits an adoptive parent or adoptee age 18 or older to ask the probate court where the adoptee lives to determine the adoptee's birth date and biological age. The court must hold a hearing and accept medical and other relevant evidence.

It must send a certified copy of its decree to DPH when it conflicts with the agency's official birth record. The act directs the department to use the birth date set by decree in all future birth records.

EFFECTIVE DATE: October 1, 2007

COUNCIL ON PROBATE JUDICIAL CONDUCT (PA 07-115)

The act extends, from three to seven business days, the time within which the Council on Probate Judicial Conduct must notify the complaining party and judge of the completion of its investigation of a complaint alleging judicial misconduct. By law, the notice must indicate whether the council found probable cause that the judge engaged in misconduct.

EFFECTIVE DATE: October 1, 2007

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