Substitute Senate Bill No. 1275
Substitute Senate Bill No. 1275
PUBLIC ACT NO. 97-90
AN ACT CONCERNING PROBATE MATTERS.
Be it enacted by the Senate and House of
Representatives in General Assembly convened:
Section 1. Subsection (f) of section 19a-265
of the general statutes is repealed and the
following is substituted in lieu thereof:
(f) Immediately upon issuance of an emergency
commitment order under subdivision (4) of
subsection (c) of this section, the director of
health shall petition the probate court for the
district in which the person who is subject to the
order resides to determine whether such commitment
shall be continued. The Probate Court
Administrator shall appoint a three-judge court
from among the several judges of probate to
conduct the hearing. Such three-judge court shall
consist of at least one judge who is an
attorney-at-law admitted to practice in this
state. The judge of probate having jurisdiction
under the provisions of this section shall be a
member, provided such judge may disqualify
himself, in which case all three members of such
court shall be appointed by the Probate Court
Administrator. Such three-judge court when
convened shall be subject to all of the provisions
of law as if it were a single-judge court. The
involuntary confinement of a person under this
section shall not be ordered by the court without
the vote of at least two of the three judges
convened hereunder. The judges of such court shall
designate a chief judge from among their members.
All records for any case before the three-judge
court shall be maintained by the court of probate
having jurisdiction over the matter as if the
three-judge court had not been appointed. The
hearing shall be held within ninety-six hours,
EXCLUDING SATURDAYS, SUNDAYS AND LEGAL HOLIDAYS,
of the issuance of such order of emergency
commitment and the court shall cause such advanced
notice as it directs thereof to be given to the
person who is the subject of the order and such
other person as it may direct. The court shall
determine: (1) If the person has active
tuberculosis that is infectious or presents a
substantial likelihood of having active
tuberculosis that is infectious based upon
epidemiologic, clinical, or radiographic evidence,
and laboratory test results; (2) if the person
poses a substantial and imminent likelihood of
transmitting tuberculosis to others because of
inadequate separation from others, based on a
physician's professional judgment using recognized
infection control principles; (3) if the person is
unwilling or unable to behave so as to not expose
others to risk of infection from tuberculosis; (4)
if efforts have been made to educate and counsel
the person about the need to avoid exposing others
and required contagion precautions; (5) if the
person has expressed or demonstrated an
unwillingness to adhere to the prescribed course
of treatment that would render the person
noninfectious; (6) if efforts have been made to
educate and counsel about the need to complete
treatment and if reasonably appropriate enablers
and incentives have been offered to facilitate the
completion of treatment; and (7) whether the order
is necessary and is the least restrictive
alternative to protect the public health.
Sec. 2. Section 45a-92 of the general
statutes is repealed and the following is
substituted in lieu thereof:
(a) Each person who is a judge of probate at
any time during any calendar year shall file with
the Probate Court Administrator on or before March
first of the succeeding year a sworn statement
showing the actual gross receipts and itemized
costs of his office and the net income for each
such calendar year. If such person ceases to hold
office, he shall also file with the Probate Court
Administrator, on or before March first of the
second and third years next following, a sworn
statement showing his net income from his former
office for the first and second calendar years
next following the calendar year in which he
ceased to hold office. At the time of filing, each
such person shall pay to the State Treasurer as
hereinafter provided the sum required by this
section, less sums previously paid to the State
Treasurer on account. Payment shall be credited by
the State Treasurer to the fund established by
section 45a-82.
(b) The personal representative of each
person who holds the office of judge of probate,
at any time during any calendar year, and dies
while in office, or within twenty-four months
after ceasing to hold office, shall file with the
Probate Court Administrator, on or before March
first next following such death, a sworn statement
showing the actual gross receipts and itemized
costs of the decedent's office for the preceding
calendar year and the decedent's net income from
that office for such calendar year. The personal
representative shall file with the Probate Court
Administrator on or before March first of the
second year following said death a sworn statement
showing the net income to the decedent's estate
from such office for the preceding calendar year.
(c) Each judge of probate or personal
representative except a judge of probate who is
Probate Court Administrator shall at the time of
filing such returns pay to the State Treasurer to
be credited to the fund established by section
45a-82, a percentage of the annual net income from
such office based on the following table:
First $10,000 $1 nominal
Next $ 5,000 3%
Next $ 5,000 6%
Next $ 5,000 10%
Next $ 5,000 15%
Next $ 5,000 25%
Next $ 5,000 35%
Next $ 5,000 50%
Next $ 5,000 65%
Next $ 5,000 80%
Next $ 5,000 85%
Next $20,000 90%
Excess over $80,000
up to the maximum amount
computed by the State
Treasurer as provided
below 95%
All over the maximum
amount computed by the
State Treasurer as provided
below 100%
As used herein, "maximum amount" shall mean the
amount of annual net income from such office
which, when applying the percentage payments set
forth above, shall result in the judge of probate
retaining as net compensation, after the payment
of the above amounts, a sum equal to the salary of
a Superior Court judge who has served the maximum
number of years for the highest salary provided in
section 51-47. In any year during which the salary
of a Superior Court judge in section 51-47 is
increased, the State Treasurer shall compute and
furnish to the Probate Court Administrator no
later than sixty days prior to the effective date
of such Superior Court judge's salary increase,
the maximum amount over which any judge of probate
shall pay one hundred per cent of the annual net
income. Any such change in the maximum as a result
of the change in the salary of the Superior Court
judge shall be effective on the same date as the
increase in the salary of the Superior Court
judge. Such payment shall be deemed to be a
necessary expense of his office but shall not be
deductible from the gross income for the purpose
of determining net income of such office under
this section.
(d) (1) Any judge of probate who is the
Probate Court Administrator shall pay to the State
Treasurer, to be credited to said fund, one
hundred per cent of the annual net income from his
office during the period of time he serves as
Probate Court Administrator. (2) For the purposes
of this assessment, fees received after but earned
before his appointment as Probate Court
Administrator shall be subject to the assessment
set forth in the table in this section. Fees
received after such judge of probate ceases to be
the Probate Court Administrator but earned during
his term as Probate Court Administrator shall be
paid in full to the State Treasurer after the
deduction of the expenses of his office. (3) The
books and records of any judge of probate acting
as Probate Court Administrator shall be audited by
the Auditors of Public Accounts at the beginning
of his term as Probate Court Administrator and
thereafter at least annually during his term as
Probate Court Administrator and upon completion of
his term as Probate Court Administrator or as
judge of probate whichever occurs first. (4) A
judge of probate who is Probate Court
Administrator shall make no expenditure in his
court for salaries, equipment, or any other
expenditure exceeding the sum of one hundred
dollars in the aggregate, annually, without first
having obtained the approval of the Chief Court
Administrator.
(e) (1) On or before January thirty-first of
each year, each person required to make payment
under this section shall estimate such annual net
income and shall advise the Probate Court
Administrator thereof, upon such forms and
pursuant to such regulations as said administrator
shall promulgate. (2) Each person who takes office
as a judge of probate after February first of any
calendar year, as the result of death, retirement,
resignation or removal of the immediately previous
incumbent of that office, shall file his estimate
of annual net income with the Probate Court
Administrator and shall make the necessary payment
to the State Treasurer in accordance therewith not
later than sixty days after taking office.
(f) If, based upon such estimate, the amount
payable shall be less than one hundred dollars,
the payment thereof shall be made in one payment
on or before December thirty-first of the
applicable year. Otherwise, the amount payable
shall be made in four substantially equal
instalments payable on or before the last day of
March, June, September and December of the
applicable year, except that in the case of an
estimate filed pursuant to subdivision (2) of
subsection (e) of this section, the amount payable
under such estimate shall be made in substantially
equal instalments on such instalment payment dates
next following the timely filing of such estimate
in such year. The estimated payment may be amended
and changed at any time during the year in which
it is payable by increasing or decreasing the
amount. The amount of such increase or decrease
shall be paid for or adjusted in the instalment or
payment due at the time the estimated assessment
is next payable after such amendment. THE PROBATE
COURT ADMINISTRATOR MAY ADOPT REGULATIONS PURSUANT
TO SUBDIVISION (1) OF SUBSECTION (b) OF SECTION
45a-77 TO CARRY OUT THE INTENT OF THIS SUBSECTION.
(g) Upon the completion of each calendar
year, and in any event on or before the first day
of March of the succeeding calendar year, each
person required to make payment under this section
shall make sworn report to the Probate Court
Administrator, upon forms prescribed by and
subject to regulations promulgated by the
administrator, of the following: (1) The gross
income received by virtue of such office; (2)
actual expenses incurred in connection with the
office; (3) the net income of such office prior to
the payment of the assessment instalments
hereinbefore provided; (4) the amount paid during
the preceding calendar year to the State Treasurer
on account of the foregoing estimate; and (5) the
amount of the difference, if any, between the
amount so paid and the amount actually due. This
report shall be open to public inspection.
(h) If the amount already paid was less than
the amount due, such person shall, on or before
March first of the succeeding calendar year, pay
to the State Treasurer the entire deficiency. If
the amount already paid was more than the amount
due, such person shall either, at his election and
pursuant to regulations promulgated by the State
Treasurer, be entitled to a refund of such excess
payment to be paid from the fund provided by
section 45a-82, or a credit in the amount of the
overpayment to be charged against the future
obligations of such person to said fund.
(i) (1) If [the estimated payments made
pursuant to this section are less than seventy per
cent of the amount due] ANY ESTIMATED QUARTERLY
PAYMENTS REQUIRED TO BE PAID PURSUANT TO
SUBSECTION (f) OF THIS SECTION IS LESS THAN
ONE-FOURTH OF SEVENTY PER CENT OF THE TOTAL
ASSESSMENT DUE FOR THAT YEAR OR LESS THAN
ONE-FOURTH OF NINETY-FIVE PER CENT OF THE
ASSESSMENT PAID FOR THE PRIOR YEAR, such person
shall be obligated to pay to such fund a penalty
of ten per cent of the amount of the deficiency,
except that [no such penalty shall be required if
the estimated payments were not less than
ninety-five per cent of the actual assessment paid
for the previous year] THE PROBATE COURT
ADMINISTRATOR MAY WAIVE SUCH PENALTY FOR CAUSE IN
ACCORDANCE WITH REGULATIONS ADOPTED PURSUANT TO
SUBDIVISION (1) OF SUBSECTION (b) OF SECTION
45a-77. Any such penalty shall become payable upon
demand by the Probate Court Administrator, and be
due within thirty days after such demand, in
accordance with regulations promulgated by the
Probate Court Administrator, and shall be subject
to interest under subdivision (2) of this
subsection in the event of default in such
payment. (2) Any payments required under
subsection (f) or (h) which are not paid at the
applicable times prescribed in said subsections,
and any penalty payment required under subdivision
(1) of this subsection which is not timely paid,
shall incur simple interest at the rate applicable
under section 12-376 for delinquent payment of
succession and transfer taxes where no extension
has been granted, to be payable to the Treasurer
and to be added to the fund established under
section 45a-82. Any alleged delinquency of a judge
of probate in making payments as required under
this section shall be referred by the State
Treasurer to the Attorney General for such action
as the Attorney General deems necessary.
(j) (1) As used in this subsection and
subsections (c) to (i), inclusive, of this
section, for any calendar year, the term "actual
expenses incurred in connection therewith" may
include as an allowable deduction the amount of
any net operating loss for a prior calendar year
as provided in this section. (2) The term "net
operating loss" means the excess of itemized costs
and expenses of office allowed by this section
over the gross income. A net operating loss may be
deducted in the calendar year following the year
in which the net operating loss occurred, but (A)
if the net income of such subsequent year is not
sufficient to pay all of such net operating loss,
then the balance of such net operating loss may be
deducted in the second calendar year following
such net operating loss; and (B) if the net income
of such second calendar year is not sufficient to
pay all of the remaining net operating loss, then
the balance of such net operating loss may be
deducted in the third calendar year following such
net operating loss. In no event shall any such net
operating loss or part thereof be deductible for
any report beyond the third calendar year in which
it occurred.
(k) Notwithstanding the provisions of
subsection (c) of this section concerning
percentage payments, a judge of probate who is the
judge in a court of probate designated as a high
volume court shall be permitted to retain as net
compensation, before the payment of any amounts
due under sections 45a-34 to 45a-54, inclusive,
and 45a-75, the sum which shall be the greater of
(1) the net compensation resulting from the
application of the percentages in subsection (c)
of this section or (2) compensation earned after
payment of actual expenses of the office not to
exceed seventy-five per cent of the amount of the
salary of a Superior Court judge as determined in
accordance with subsection (a) of section 51-47 as
determined on July first of the calendar year for
which the assessments are being paid pursuant to
this section. If a judge of probate of a high
volume court leaves office during a calendar year,
or if a judge of probate of a high volume court
assumes office and serves during a portion of the
calendar year, the minimum net compensation
provided in this section shall be prorated in
accordance with the number of days served during
the calendar year as the numerator, and three
hundred and sixty-five as the denominator,
provided if the business of the court in a
calendar year does not produce sufficient income
with which to pay the minimum net compensation,
then payment for that year shall not be extended
to subsequent calendar years. For the purposes of
this subsection, "high volume court" shall mean a
court of probate which serves a district having an
estimated population of seventy thousand or more
persons as reported in the State Register and
Manual for the calendar year immediately preceding
(A) the year for which the [minimum net
compensation would apply] JUDGE WAS ELECTED, (B)
THE YEAR IN WHICH SUCH JUDGE WAS ELECTED OR (C)
ANY YEAR OF THE TERM OF OFFICE OF SUCH JUDGE. The
amount of assessment payable to the State
Treasurer under this section shall be reduced by
the amount necessary to provide to the judge the
minimum compensation to which such judge is
entitled under this section, and the estimates of
annual net income required in subsections (e) and
(f) of this section may be reduced accordingly.
Minimum compensation as provided herein shall only
be payable if all ordinary and necessary expenses
of the court are paid.
Sec. 3. Section 45a-175 of the general
statutes is repealed and the following is
substituted in lieu thereof:
(a) Courts of probate shall have jurisdiction
of the interim and final accounts of testamentary
trustees, trustees appointed by the courts of
probate, conservators, guardians, persons
appointed by probate courts to sell the land of
minors, executors, administrators and trustees in
insolvency, and, to the extent provided for in
this section, shall have jurisdiction of accounts
of the actions of trustees of inter vivos trusts
and attorneys-in-fact acting under powers of
attorney.
(b) A trustee or settlor of an inter vivos
trust or an attorney-in-fact or the successor of
the trustee, settlor or attorney-in-fact or the
grantor of such power of attorney or his legal
representative may make application to the court
of probate for the district where the trustee or
the attorney-in-fact has his or its principal
place of business or to the court of probate for
the district where the trustee or any one of them
or the settlor or the attorney-in-fact or the
grantor of the power resides or, in the case of a
deceased settlor or grantor, to the court of
probate having jurisdiction over the estate of the
settlor or grantor for submission to the
jurisdiction of the court of an account for
allowance of the trustee's or attorney's actions
under such trust or power.
(c) (1) Any beneficiary of an inter vivos
trust may petition a court of probate having
jurisdiction under this section for an accounting
by the trustee or trustees. The court may, after
hearing with notice to all interested parties,
grant the petition and require an accounting for
such periods of time as it determines are
reasonable and necessary on finding that: (A) The
beneficiary has an interest in the trust
sufficient to entitle him to an accounting, (B)
cause has been shown that an accounting is
necessary, and (C) the petition is not for the
purpose of harassment.
(2) A court of probate shall have
jurisdiction to require an accounting under
subdivision (1) of subsection (c) of this section
if (A) a trustee of the trust resides in its
district, (B) in the case of a corporate trustee,
the trustee has its principal place of business in
the district, (C) any of the trust assets are
maintained or evidences of intangible property of
the trust are situated in the district, or (D) the
settlor resides in the district.
(3) As used in subdivision (1) of subsection
(c) of this section, "beneficiary" means any
person currently receiving payments of income or
principal from the trust, or who may be entitled
to receive income or principal or both from the
trust at some future date, or the legal
representative of such person.
(d) The action to submit an accounting to the
court, whether by an inter vivos trustee or
attorney acting under a power of attorney or
whether pursuant to petition of another party,
shall not subject the trust or the power of
attorney to the continuing jurisdiction of the
probate court.
(e) If the court finds such appointment to be
necessary and in the best interests of the estate,
the court upon its own motion may appoint an
auditor to be selected from a list provided by the
Probate Court Administrator, to examine accounts
over which the court has jurisdiction under this
section, except those accounts on matters in which
the fiduciary or cofiduciary is a corporation
having trust powers. The Probate Court
Administrator shall promulgate regulations in
accordance with section 45a-77 concerning the
compilation of a list of qualified auditors. Costs
of the audit may be charged to the fiduciary, any
party in interest and the estate, in such
proportion as the court shall direct if the court
finds such charge to be equitable. Any such share
may be paid from the fund established under
section 45a-82, subject to the approval of the
Probate Court Administrator, if it is determined
that the person obligated to pay such share is
unable to pay or to charge such amount to the
estate would cause undue hardship.
(f) Upon the allowance of any such account,
the court shall determine the rights of the
fiduciaries or the attorney-in-fact rendering the
account and of the parties interested in the
account, subject to appeal as in other cases. The
court shall cause notice of the hearing on the
account to be given in such manner and to such
parties as it directs.
(g) IN ANY ACTION UNDER THIS SECTION, THE
PROBATE COURT SHALL HAVE, IN ADDITION TO POWERS
PURSUANT TO THIS SECTION, ALL THE POWERS AVAILABLE
TO A JUDGE OF THE SUPERIOR COURT AT LAW AND IN
EQUITY PERTAINING TO MATTERS UNDER THIS SECTION.
Sec. 4. Section 45a-650 of the general
statutes is repealed and the following is
substituted in lieu thereof:
(a) At any hearing for involuntary
representation, the court shall receive evidence
regarding the condition of the respondent,
including a written report or testimony by one or
more physicians licensed to practice medicine in
the state who have examined the respondent within
thirty days preceding the hearing. The report or
testimony shall contain specific information
regarding the disability and the extent of its
incapacitating effect. The court may also consider
such other evidence as may be available and
relevant, including but not limited to a summary
of the physical and social functioning level or
ability of the respondent, and the availability of
support services from the family, neighbors,
community, or any other appropriate source. Such
evidence may include, if available, reports from
the social work service of a general hospital,
municipal social worker, director of social
service, public health nurse, public health
agency, psychologist, coordinating assessment and
monitoring agencies, or such other persons as the
court deems qualified to provide such evidence.
The court may waive the requirement that medical
evidence be presented if it is shown that the
evidence is impossible to obtain because of the
absence of the respondent or his or her refusal to
be examined by a physician or that the alleged
incapacity is not medical in nature. If this
requirement is waived, the court shall make a
specific finding in any decree issued on the
petition stating why medical evidence was not
required.
(b) Notwithstanding the provisions of section
45a-7, the court may hold the hearing on the
application at a place within the state other than
its usual courtroom if it would facilitate
attendance by the respondent.
(c) If the court finds by clear and
convincing evidence that the respondent is
incapable of managing his or her affairs, [then]
the court shall appoint a conservator of his or
her estate UNLESS IT APPEARS TO THE COURT THAT
SUCH AFFAIRS ARE BEING MANAGED PROPERLY WITHOUT
THE APPOINTMENT OF A CONSERVATOR. If the court
finds by clear and convincing evidence that the
respondent is incapable of caring for himself or
herself, [then] the court shall appoint a
conservator of his or her person UNLESS IT APPEARS
TO THE COURT THAT THE RESPONDENT IS BEING CARED
FOR PROPERLY WITHOUT THE APPOINTMENT OF A
CONSERVATOR.
(d) When DETERMINING WHETHER A CONSERVATOR
SHOULD BE APPOINTED AND IN selecting a conservator
to be appointed for the respondent, the court
shall be guided by the best interests of the
respondent. IN MAKING SUCH DETERMINATION, THE
COURT SHALL CONSIDER WHETHER THE RESPONDENT HAD
PREVIOUSLY MADE ALTERNATIVE ARRANGEMENTS FOR THE
CARE OF HIS PERSON OR FOR THE MANAGEMENT OF HIS
AFFAIRS, INCLUDING, BUT NOT LIMITED TO, THE
EXECUTION OF A VALID DURABLE POWER OF ATTORNEY,
THE APPOINTMENT OF A HEALTH-CARE AGENT OR OTHER
SIMILAR DOCUMENT. The respondent may, by oral or
written request, if at the time of the request he
or she has sufficient capacity to form an
intelligent preference, nominate a conservator who
shall be appointed unless the court finds the
appointment of the nominee is not in the best
interests of the respondent. In such case, or in
the absence of any such nomination, the court may
appoint any qualified person, authorized public
official or corporation in accordance with
subsections (a) and (b) of section 45a-644.
(e) Upon the request of the respondent or his
or her counsel, made within thirty days of the
date of the decree, the court shall make and
furnish findings of fact to support its
conclusion.
(f) If the court appoints a conservator of
the estate of the respondent, it shall require a
probate bond. The court may, if it deems it
necessary for the protection of the respondent,
require a bond of any conservator of the person
appointed hereunder.
Sec. 5. Section 23 of public act 96-170 is
repealed and the following is substituted in lieu
thereof:
This act shall take effect July 1, 1998,
EXCEPT THAT SECTION 1 SHALL TAKE EFFECT JULY 1,
1997.
Sec. 6. This act shall take effect July 1,
1997, except that sections 2 to 4, inclusive,
shall take effect October 1, 1997.
Approved June 6, 1997