OLR Bill Analysis

sSB 1439

AN ACT CONCERNING CONSERVATORS AND APPEALS OF CONSERVATORSHIPS AND GUARDIANSHIPS.

SUMMARY:

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 bill changes procedures for appointing conservators and designating their powers and sets procedures for appealing probate court decisions and filing habeas corpus petitions.

Among the bill'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 current 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 bill 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 bill 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 bill 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. Current 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 bill 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 bill requires the appeal within 30 days of mailing the order, denial, or decree.

2 — Service

Under the bill, 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 bill 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 bill 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 bill, filing the appeal does not stay enforcement of an order, denial, or decree. The bill 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 bill 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 current law, an appeal in a case where the parties agreed to have a record made is based on the record and is not a new trial. The bill requires appeals on the record if a recording is made of proceedings (1) appointing conservators (the bill 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 bill 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 administrator fund.

The bill 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 bill, 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 bill, 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 bill 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 bill 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 bill 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, current law defines a person as “incapable of caring for himself or herself” if the person has 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 makes 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) endangers the person's health.

The bill 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 bill makes a similar change to the definition of a person who is “incapable of managing his or her affairs. ” Under current law, this is when a person (1) has 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 prevents the person from managing his or her affairs regarding property. The bill 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 bill 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

Under current 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 bill also allows an application in the district where the person is located at the time of filing.

The bill 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. (a) 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 bill 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 bill 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 bill increases the penalties for fraudulent or malicious application or false testimony under the provisions on applying for involuntary representation. Under current law, this is punishable by up to one year in prison, a fine of up to $ 1,000, or both. The bill makes it a class D felony, punishable by up to five years in prison, a fine of up to $ 5,000, or both. The bill 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 bill modifies the notice requirements for involuntary representation. Under current 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 bill 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 bill 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 bill 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 current 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 bill requires the notice to include a statement, in bold with 12-point print, about the hearing and the person's rights. The bill 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 bills, (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 bill 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 current law, the court can only do this if the person cannot attend because of physical incapacity and the court has the option of visiting the person before the hearing if he or she is in Connecticut when it is impractical to relocate the hearing.

15 — APPOINTING ATTORNEYS

Current 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. Current 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 bill 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 bill provides that the person has the right to choose that attorney.

The bill 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 bill requires it to do so from a panel provided by the probate court administrator, according to regulations.

The bill 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 bill prohibits a conservator from denying a conserved person access to his or her resources that are needed for an appeal.

Under the bill, 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 bill applies the same requirements in current 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 bill 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 bill 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 bill 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 bill, (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.

Current law requires 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 bill changes these requirements by (1) extending the examination period to 45 days before the hearing and (2) allowing the court to waive the evaluation.

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

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

Factors in Decisions on Appointing Conservators

As under current 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 bill 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 bill requires the court to consider certain factors before making a decision on whether to appoint a conservator. The bill 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 bill 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 bill 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 current law, the court must appoint a conservator of the estate if (1) clear and convincing evidence shows that the person is incapable of managing his or her affairs and (2) it does not appear that the affairs are being managed properly without a conservator.

The bill 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 current law, the court must appoint a conservator of the person if (1) clear and convincing evidence shows that the person is incapable of caring for himself or herself and (2) it does not appear that the person is being properly cared for without a conservator.

The bill 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 current law, a person can request, if capable of forming an intelligent preference, someone to act as his or her conservator. The bill 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 current law, the court must accept an appointment unless it is not in the person's best interests. The bill 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 bill and current law allow the appointment as conservator of any qualified person or an authorized public official or corporation. The bill 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 bill 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 current law, the court can limit the powers and duties given to a conservator but it must make specific findings to justify any limitation. Current law requires 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 bill 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 bill 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 bill provides that the person retains all rights and authority not expressly given to the conservator.

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

18 — APPOINTING A TEMPORARY CONSERVATOR

Standard for Appointment

Under current 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 bill 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 bill requires, instead of allows as under current law, the temporary conservator to give a probate bond.

Current law requires the court to make specific findings to justify limitations on the temporary conservator's powers. The bill 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

Under current 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 bill 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 bill requires the report to be filed with the application. Current law allows the court to order this medical information disclosed. The bill requires disclosure to the subject of the application on request, his or her attorney, and other parties the court considers appropriate.

The bill 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 bill 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). Current 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 bill 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 decree, if any; and

3. the time and place of the hearing.

The bill 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 bill prohibits the court from disclosing the physician's report to that person without a court order.

Ex Parte Appointments

Under current law, a court can appoint a temporary conservator ex parte and must then hold a hearing within 72 hours of the appointment. The bill 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 bill 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 bill 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 bill 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 bill also requires a final accounting if it is directed by the court.

20 — DUTIES OF A CONSERVATOR OF THE PERSON

The bill 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 decisions conforming with the person's expressed health care preferences including instructions and other wishes in an advanced health care directive.

The bill 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 bill 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

Under current law, a conservator of the person has the power to change a person's place of abode. The bill 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 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 current law for a conservator placing a person in a long-term care institution.

The bill 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 bill also applies these procedures to placing the person in a long-term care institution. By doing so, it changes current 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 under current 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 current law, it also includes a federally-certified skilled nursing facility or intermediate care facility).

As under current law, the bill still allows placement in a long-term care institution on discharge from a hospital before filing a report but requires filing the report within 48 hours (excluding weekends and holidays) instead of within five days. It 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 bill prohibits the court from acting on an application for this purpose until an attorney is appointed under the bill'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 bill also allows transfer of the tangible personal property itself.

23 — TERMINATING CONSERVATORSHIP

The bill 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. If the hearing is not held within the 30-day period, the conservatorship terminates.

Current law requires the court to review the conservatorship at least every three years. The bill instead requires a review within one year of ordering the conservatorship and at least every three years after that. Current law requires the conservator, person's attorney, and a physician to submit written reports within 45 days of the court's request. The bill 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 bill requires disclosure to the conserved person's attorney.

The bill 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 current law, the court is not required to hold a hearing unless requested by the attorney, physician, or conservator if it finds that the person's condition did not change since the court's last review based on the filed reports. The bill 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 and there is no less restrictive means available to assist in managing the affairs. The bill 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 bill 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 bill, 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 bill 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 bill prohibits charging court fees to the judge or hospital superintendent or director.

COMMITTEE ACTION

Judiciary Committee

Joint Favorable Substitute

Yea

40

Nay

0

(04/11/2007)