Judiciary Committee

JOINT FAVORABLE REPORT

Bill No.:

SB-1439

Title:

AN ACT CONCERNING CONSERVATORS AND PROBATE APPEALS.

Vote Date:

4/11/2007

Vote Action:

Joint Favorable Substitute

PH Date:

3/30/2007

File No.:

SPONSORS OF BILL:

Sen. Edith Prague, 19th District

REASONS FOR BILL:

As Senator Prague's ongoing effort to aide the senior citizens of Connecticut.

SUBSTITUTE LANGUAGE: See testimony of Judge Robert Killian

RESPONSE FROM ADMINISTRATION/AGENCY:

Judge James Lawlor, Probate Court Administrator

I urge the members of the Judiciary Committee to amend this bill and favorably pass the bill.

Judge Robert Killian chaired a committee to review the involuntary conservatorship statutes and recommend possible revisions. Its members include representatives of the legal and medical professions, hospitals, relevant state agencies, legal advocacy groups and academicians. Substitute language for this bill is the product of their efforts. Given the diversity of interests and perspectives represented, it should come as no surprise that this bill involves much compromise.

Paul Amble, M.D., Chief Forensic Psychiatrist, Department of Mental Health and Addiction Services (DMHAS)

We do not support this bill as currently worded.

1) Section 4(h)(2), which is relevant to our inpatient service delivery, proposes a change that is directly contrary to a provision of P.A. 06-95. In essence, this bill (unless otherwise provided in the court's decree) requires a conservator to comply with all health care decisions made by the ward's health care representative or health care proxy. However, PA 06-195 stipulates that the conservator's health care decisions take precedence over those of a health care representative in three specified instances. We negotiated the exemptions contained in PA 06-195 last year in good faith with all the parties involved and believe we need to keep those exemptions if any changes are made at this time to the conservator statutes for the following reasons:

• Sec. 17a-543, the legislature enacted "due process" related to involuntary treatment with psychiatric medications of individuals admitted to inpatient facilities on a civil basis, by creating a process for conservators to make decisions regarding treatment for patients who are unable to give informed consent.

• Sec.17a-543(e)(l) requires conservators to: "meet with the patient and the physician, review the patient's written record and consider the risks and benefits from the medication, the likelihood and seriousness of adverse side effects, the preferences of the patient, the patient's religious views, and the prognosis with and without medication.”

• Sec. 17a-543a, the General Assembly accomplished the same due process procedures, but for individuals found not competent to stand trial, which is in accordance with the 2003 U.S. Supreme Court decision in U.S. v. Sell.

                 

Unless Section 4(h)(2) is amended to include language similar to that contained in P.A. 06-195, the legislature will be creating a conflict between two portions of the statutes, and will be potentially eliminating the ability of DMHAS inpatient facilities to seek appropriate involuntary treatment in certain circumstances - even when a patient is placing himself/herself or others at risk.

2) The second concern we wish to raise regarding this bill is that Section 4(h)(3) will limit the pool of unbiased, neutral attorneys who may serve as conservators for individuals. We fully understand the need to protect an individual's civil rights, but we ask that you consider in your deliberations that individuals in our system may not be able to make good decisions because of their psychiatric disability.

This section considerably narrows the probate court's discretion in appointing a conservator whenever a patient merely "communicates a preference” for a particular individual.

In addition, the section creates a new criterion for the probate court's consideration namely, whether a proposed conservator "has knowledge of the respondent's preferences regarding the care of his or her person.” No attorney appropriately maintained on the panel of the Probate Court Administrator is likely to meet this criterion. Thus, this new requirement may result in the selection of a conservator who is more likely to agree with an incompetent respondent's preferences, rather than one who will be able to take a neutral stance when weighing the important factors in the balance.

The combination of these two changes represents a fundamentally different approach to the way Connecticut has heretofore conceived of the nature of substituted judgment and its appropriate balancing of interests. It could substantially interfere with our ability to treat those patients who require treatment in order to be well enough to leave hospital care, thus wasting precious and finite resources. It could also substantially interfere with our ability to treat individuals who are subject to various provisions of the criminal justice system.

Hon. Dianne E. Yamin, Probate Judge, Ct. Probate Assembly

The Probate Assembly opposes this bill, as it maintains the Probate Courts are historically the best, most local, efficient jurisdiction for conservatorships. In place of this bill, Judge Killian's committee has developed compromise language with legal rights advocates, which he will propose, (Probate Administration's Conservator Statutes Revision Committee), which is a step in the right direction, however the Assembly has not had an opportunity to review said proposed language, hence I hereby take no position on it.

James D. McGaughey, Executive Director, Office of Protection and Advocacy for Persons with Disabilities

These bills grow out of frustrations shared by advocates for people who are elderly and people who have disabilities over the widespread failure of our current involuntary representation mechanism to respect the rights and expressed preferences of people who are being considered for, or are actually living under court ordered representation by a conservator.

While ostensibly aimed at preserving the ward's assets, these actions actually operate to greatly limit the person's prospects for recovering his or her place in the community, and moving on with life, effectively consigning these individuals to long term careers as “mental patients”. Not infrequently, and not surprisingly, we find that the person who is the alleged beneficiary was not consulted concerning these actions and only learned of them after-the-fact.

The reforms proposed in these bills would certainly move things in a better direction. This bill creates a preference for the least restrictive form of intervention. It establishes a “rebuttable presumption” that the ward should retain authority in as many decision-making domains as possible; clarifies that when a person who is being considered for conservatorship, he or she must receive specific notice of the potential consequences of being adjudicated incapable; clarifies the role of appointed counsel; protects previous decisions the person has made regarding surrogate decision makers. This bill repeats and expands on several of these concepts and would also establish concurrent jurisdiction over petitions for conservatorship in both probate and superior courts.

NATURE AND SOURCES OF SUPPORT:

Hon. Robert Killian, Probate Judge, District of Hartford

Over 4,000 new conservators are appointed every year in Connecticut. Over 19,000 people in CT currently have a conservator. The bulk of these appointments are made in urban courts, such as mine. The overwhelming majority of the appointment is vital to the health and welfare of the conserved individual, who, but for the involvement of these fiduciaries, would often face serious deprivation, sometime death.

Substitute language: It is the overriding philosophical goal of the proposed substitute to try to insure that what a respondent gets is not more than they need; that their personal autonomy is intruded upon only to the extent absolutely necessary to insure their health and well being; and that decisions capably made by an individual are not rejected by a conservator only because of a disagreement about what level of risk can be assumed in the community or what standard for medical treatment is desired, or in some case, not desired.

I want to report to you that this was a very hard-working committee. Hours of subcommittee work proceeded many hours of plenary sessions at which proposed legislation, previously provided to you, was developed.

I also want to report that the ten members of this committee came to it from a number of different perspectives; Patient's Rights Advocates, Hospital Administrators, lawyers in private practice, a medical doctor specializing in geriatric psychiatry, a law professor with a well deserved reputation as a civil libertarian, representatives of DSS and two—only two—representatives of the Probate Courts, myself and Attorney Cynthia Blair.

Despite our differing perspectives, however, I am happy to report that this is not a “compromise” proposal. There was unanimity among the committee members that our existing law had shortcomings in its procedural due process, substantive due process and—perhaps most importantly—in the philosophical underpinnings that dictate the role of conservator should take in serving the needs of a conserved individual.

Significant changes include:

• Procedural due process safeguards enhanced in this bill relate to in hand service of process on the respondent as a jurisdictional safeguard and notice to other known necessary parties as a precondition to jurisdiction; a statutory definition of the right to counsel including when deference must be given to the respondent's selection of counsel, and a clearer understanding of what counsel must do to meet the constitutional requirement of effectively representing their client. Additionally, recording of all conservatorship hearings is mandated and appeals are streamlined, eliminating the need to go to the Probate Court for “permission” to appeal. Appeals are on the record and the bills establishes timetable for Superior Court action on the appeal. Venue for applications and appeals are thoughtfully defined with special attention to those relatively infrequent situations where a petition is filed for a nondomiciliary who happens to be in Connecticut. Rules of evidence, historically relaxed in probate proceedings, are mandated in these cases which involve important constitutional issues.

Many of these changes are to bring our law into conformity with the proposals contained in the Interstate Compact on Conservatorships/Guardians.

• Substantive due process changes include detailed findings which the court must make relative to the respondent's functional deficiencies and evidentiary standards clearly established in Conservatorship proceedings so everyone is aware that the burden of proof is on the petitioner to establish by clear and convincing evidence that a respondent requires a conservator. Normal rules of evidence will pertain in these proceedings, will pertain in these proceedings. Hearings must be scheduled at a time and place which will facilitate attendance at the hearing by the respondent. Courts must defer to appropriate surrogates such as health care agents or representative, powers of attorney or representative payees if that sufficiently and securely addresses the respondent's needs. Attorneys representing respondents can only be appointed their conservator upon nomination by the respondent. Respondent's may refuse medical exams ordered by the court in anticipation of a conservatorship application. All medical evidence will be available to respondent's counsel in connection with the application.

Significantly, the respondent is assured of court hearings before institutionalization, except in limited emergency situations, and will be entitled to a review of appointment of a conservator, with the assistance of counsel, up to three ties in any 12-minth period as a matter of right and additional times if significant new evidence of capacity emerges.

Habeas corpus is immediate available for review of not only any orders of confinement, but also of any denial of access to financial resources. This may be either to the Superior Court or to a panel of three Probate Court Judges, all of whom will be lawyers and will receive special training.

• Appointment of a conservator is intended to be an exercise of the state's parens patriae authority. The proposed substitute tries to set clear limits on conservators so the court assigns them only the authority necessary to address a demonstrated need of the conserved party. Conservator decisions that once made are difficult to undo, such as surrendering an apartment or permanently relocating a conserved party to a nursing home, will require prior court approval. Conservators must allow their charges to exercise as much independent decision making as they can muster. A respondent can challenge not only the court's finding that a conservator is necessary, but the scope of the conservator's duties.

Thomas Behrendt, Legal Director, Ct. Legal Right Project

I am testifying as a member of the "Conservatorship Revision Committee" convened by Judge Lavery and chaired by Judge Killian and Judge Lawlor. This multidisciplinary committee worked on this bill intensively over the past four months. It is acknowledged by the bench and bar by most of you, as well as the public - the users of our courts - that the current statutes are in need of revision. The proposal before you will bring our statutory scheme up to date and remedy the problems in current law. It adds needed safeguards to minimize the intrusion upon fundamental liberty and autonomy while it assures that vulnerable individuals are protected and well served.

The bill is the product of the efforts of many dedicated individuals working long and

hard. We consulted with experts on guardianship, including the Director and Assistant Director of the ABA Commission on Law and Aging, and members of the National Conference of Commissioners on Uniform State Laws.

An overarching principle of the legislation is "least restrictive means of intervention" - that conservatorship be imposed only if there are no less restrictive means available, and that in appointing a conservator, the court limits the conservator to these duties and authorities that are necessary.

The proposed legislation would enhance procedural safeguards in the legal

proceedings ("due process of law"). It remedies problems in our current law. For example:

• A recording of the proceedings would be required.

• Provisions for notice and the right to counsel would be clarified.

• The legislation would mandate that testimony be given under penalty of false statement.

• It clarifies the right to a prompt hearing whenever an emergency temporary conservator is appointed ex parte as well as in situations where there is a plan to relocate a conserved individual to a nursing home or long term care institution.

• It also adds standards lacking in current law concerning the procedure for the termination of conservatorships.

• In addition, the legislation would streamline the currently daunting appellate process. Appeals would be conducted as "on the record" reviews, with an expeditious process similar to those used for administrative appeals. The bill would also clarify the right to habeas reviews and allow for timely review by a three judge Probate panel.

An additional benefit of this legislation is that it would provide much needed guidance and uniformity to probate judges and the attorneys who practice in their courts. At present, each court and each judge handles the various aspects of conservatorship matters differently. It feels as if there are 117 separate and distinct sets of rules of practice and procedure in Connecticut's probate courts. Despite the fact that there are many excellent courts and judges, uniform standards and fundamental procedural safeguards are lacking in our probate system.

The current statutes need to be revised, and the legislation before you is an excellent proposal to accomplish this.

Hon. Joseph P. Secola, Probate Judge, District of Brookfield, President, Connecticut Probate Judges Association for Local Courts, Inc.

Hon. Deborah M. Pearl, Probate Judge, District of Essex

Hon. Patricia L Damon, Judge of Probate, District of Deep River

We support the bill with exception to the following:

Oppose changes to Section 2. Doubling the notice time allows disabled individuals to remain vulnerable and a danger to themselves and others. Allow the probate court to determine that if this is a serious situation that requires quick action that the notice could be served, in the opinion of the probate court, within seven days.

Oppose Section 2(a)(1): regarding adding 17a-543 and 17a-543a – these statutes involve medication and psychiatric treatment – especially when immediate treatment is needed, doubling the notice time allows mentally disabled individuals to remain vulnerable and a danger to themselves and others.

Oppose Section 4(b): deleting the courts' ability to waive medical evidence, especially in emergency situations, allows mentally disabled individuals to remain vulnerable and a danger to themselves and others.

Oppose Section 4 (i): this section adds “any interested party” and we believe that this is a violation of the right to privacy of the respondent, who should be the only one who can request this factual clarification.

Hon. Russell A. Kimes, Jr. Probate Judge, District of New Cannan

This bill contains provisions that are intended to assure:

• The ward receives notice of the proceedings;

• The ward has competent legal counsel;

• Evidence is presented to prove actual notice and jurisdiction;

• Audio recording of the proceedings be permanently preserved; and

• Appointment of a conservator is the "least restrictive form of intervention"(whatever that means).

The bill also extends the time to take an appeal to Superior Court from 30 to 60 days for probate matters and requires that any Supreme Court hearing be held on the record.

In support of this proposed bill, there may well be a need for minor modification of the existing statutes to tighten up the notice requirements and provide for the production of an audio record of the proceedings that can serve as a record on appeal, but the wisdom of extending the 30 appeal period is questioned.

Attorney Marilyn Denny, Greater Hartford Legal Aid

I have worked with the elderly citizens of Connecticut for almost 20 yeas and have participated in drafting legislation which moved Connecticut into compliance with federal law concerning nursing home residents' rights.

Today, I support legislation which will provide essential protections for the elderly citizens of Connecticut and which will bring Connecticut into compliance with standards recommended by the American Bar Association, by the National Conference of Commissioners on Uniform State Laws for a Uniform Guardianship and Protective Proceedings Act, and other organizations. The protections include:

• Facilitate Appeal to Superior Court

• Adapt Definitions from the Uniform Guardianship and Protective Proceedings Act, which comply with the requirements of the Americans Disabilities Act

• Notice of Hearing

• Imposition of the Least Restrictive Conservatorship Necessary

• Right to An Attorney of One's Choice and to Due Process

• Duties of the Conservator of the Person

Attorney Veronica Halpine, Greater Hartford Legal Aid, Inc

The current bill should be replaced with the language drafted by the Conservator Revision Commission.

Attorney Deborah J. Tedford

I support the bill with proposed language coming from Judge Killian. The positive changes in the proposed language include improvements to the appeals process, improved mandatory notice provisions, the right to an attorney of the respondent's choice, an improved definition of incapacity based on function, the requirement that the hearing should be recorded and that the superior court, for the first time in a probate matter, would have the opportunity to actually review what took place in the court below. This latter provision is critical to avoiding the long-term or serious problems we keep hearing about in regard to this legal procedure in Connecticut.

I also support a provision that would require the Connecticut rules of evidence be followed; this is the existing law, but it is honored more in the breach than in the observance. Finally, the emphasis on less restrictive forms of conservatorship where appropriate is a very significant benefit of this bill which I strongly support.

There are still technical issues that need to be worked out, including how many powers a person who is conserved retains, especially the power to make gifts or transfer assets. This could allow potential elder abuse to continue in some cases, or create serious problems with later Medicaid applications, for example. Other issues still to be worked out include the lack of clarity on the relative roles of the conserved person, the health care representative and the conservator of the person. I believe one simple solution may be to require the judge, if he or she appoints a conservator of the person different from the health care representative, to articulate in the order the reasons for the decision and the relative responsibilities of each, keeping in mind the statutory priority of the health care representative under the existing Living Will law.

There are also technical problems with “in rem” conservatorships for Connecticut real estate owned by persons who have been declared incapacitated under the laws of other states that we believe can be resolved by additional drafting. Finally, there are concerns with permanent (not temporary) jurisdiction based simply on "location" rather than domicile that is contradictory to a proposed new, national uniform guardianship act based on best practices around the country, and the importance of courts honoring the advance designation or choice of a conservator, but again, I believe that these provisions can be either worked out through discussion or deferred to another year.

Companions and Homemakers (C&H)

Conservatorships deprive the incapacitated or disabled person of many civil rights. It is thus a drastic action and may have far-reaching implications for all persons involved. Probate judges, therefore, must exercise such great powers carefully, rationally, and with restraint. However, despite the extraordinary nature of these proceedings, often times there are no record of the proceedings.

C&H believes that keeping a recording of such hearings will bring a much needed measure of accountability and transparency to the proceedings. Judges will be motivated to carefully articulate the reasons for their rulings and decisions. Furthermore, instead of relying on notes or memory, such recordings wilI provide a reliable record of the proceedings upon which the parties can rely with reasonable certainty.

John Hubbard, Voluntary Patient Advocate for Tony P.

This bill will bring Connecticut's conservator law more into line with some of the more enlightened national models such as the “Uniform Guardianship & Protective Procedures Act” of 1997 and the Model Probate Code.  A key element of the legislation is that conservatorship shall be guided by the principal of “least restrictive means of intervention”

I would like to see Tony given in this year's legislation the following:

1. The right to access his home probate court of Torrington, Ct.  (This is extremely important.  Currently he only has access to the Probate Court nearest the facility he is in.)

2. The right to choose his own conservator. (Under current law he has no right at all to choose his conservator.) This is a violation of due process and if the person is from his church, it is a violation of the Federal RUILPA Act, institutionalized persons provision.

3. Access to the full spectrum of medical services including complimentary medicine.  This is a bigger problem when he is denied access to the conservator of his choice.  It makes a difference who is the conservator.

4. If Tony is unable to propose a conservator for himself, he needs to have the right to have the conservator manage only those affairs that he is unable to do for himself or have a friend or family member provide.

Royal Stark, Director of Health Law Clinic, Quinnipiac University School of Law

My knowledge of, and opinion about a growing and broad consensus that conservatorship reform is needed comes out of my work over the past several months with a working group of the bar association which was formed initially to look at ways that the provisions of the Uniform Guardianship and Protective Proceedings Act of 1997 (UG PPA) could be implemented in Connecticut.

The draft legislative proposals that came out of the debates and discussions of the members of that working group, which included individuals who hold or who have held high office in, the bar association and its sections, formed the core of the language in this bill as well as the language in the Conservator Revision Committee's proposed legislation; language that I urge the committee to approve by amending this bill, replacing the language therein with the language proposed by the Conservator Revision Committee, and voting the proposal out of committee.

Melissa Marshall, Executive Director, Advocacy Unlimited, Inc.

The present conservatorship statues are archaic and need the substantial revisions that have been suggested. The proposed language will finally bring the state of Connecticut into alignment with principles articulated by the President's New Freedom Commission and mandated by the Americans with Disabilities Act (ADA) through the Olmstead decision.

The language proposed by the Committee requires that a conservator is appointed only when it is the least restrictive means available and insures the highest due process safeguards. The Committee's recommendations are not a deviation from the norm; rather they are based on national model statutes.

Janet D. Heussner

My mother, an 85-year-old widow with Alzheimer's, and I are the victims of this process. My mother's former attorney filed an application to have her conserved. The probate court charged the $296 filing fee to my mother. The probate court then appointed a Guardian Ad Litem who promptly recommended himself for the job of conservator of her estate. The one-year legal fees ($55,713) and three-year conservator fees (58,500) presented to the Fairfield Probate Court amount to 64% of my mother's liquid assets ($177,000) at the time of the conservatorship application. The conservator paid himself $40,000 without court approval for “conserving” my mother's estate. The money that my parents had scrimped and saved has been depleted. Funds that could have been used to keep my mother at home longer have been exhausted.

My mother has no conservator of the person and, yet, the probate court issued an order ex parte prohibiting me from seeing my mother. The conservator of the estate has hired my mother's cleaning lady to care for her and allowed the cleaning lady to take my mother off to the cleaning lady's home in Florida, against medical advice. I am a New York resident. The probate court has no authority to issue restraining orders against me and yet it does. These courts do what they please.

Judith Desautell

I am survivor of the probate system. I am here to testify in support of reforming the probate system so that others are spared the experience I endured.

In 2000, Manchester Probate Judge John Cooney held a hearing at my home. He said that someone with my degree of physical disability did not have a brain that functioned. He ruled that I was incapable of managing all of my affairs and appointed a conservator of the estate and person. I did not need a conservator of the estate. My finances were in perfect order. My mortgage had been paid off early. I had taken out a home equity loan to finance a new roof and upgrade my kitchen. Judge Cooney ordered that I be placed at Westside, a nursing home that had received considerable notoriety for violent assaults by inappropriately placed psychiatric patients. My home was sold to pay full freight for the nursing home care. The proceeds should have been deposited in the disability trust that had been set up by my mother. My personal belongings were thrown out.

I acknowledge that I needed help. I needed more help to meet my needs in my home.  I had been reluctant to get on Title XIX to pay for home care services because I feared I would lose my house. I did not need to be in a nursing home. The proceeds from the sale of the house went to pay for the nursing home bill. I was not allowed to see my medical records. I was not allowed to meet with the press.  My mail was opened when I got it. They canceled my medical insurance and credit cards.

The bill before you would have prevented this from happening to me. First, the bill requires probate judges to listen to people like me. I have a brain. I have reasonable wishes and can make reasonable choices. My voice should have figured somewhere in the discussion. Second, the court could have imposed a limited conservator to simply arrange for more comprehensive services. Third, I could have had the case removed to superior court where I am sure I would have gotten a fair hearing before all of my rights were removed. For example, there was no evidence, much less clear and convincing evidence that I could not manage my finances. A conservator of the estate should never have been appointed.

Legal Aid helped me get out of the nursing home and into an apartment. They advised me to get out of Manchester and to have the probate court file transferred to a new judge. I moved to East Hartford. I was restored to capacity by Probate Judge Allan Driscoll who told me that I should never have been conserved and removed from my house.

I ask you to please pass this bill to prevent this from happening to others.

Laurie Julian

I speak on behalf of my mother, Carolyn Crown who was involuntarily conserved. If we had in place the protections that this bill safeguards against, my mother's right to make major life decisions would not have been violated and the family would not have gone through agonizing years of dealing with the probate court system, that benefits court appointees while depleting bank accounts that the elderly have worked hard all their lives to save. This is why we ask that not another session go by without passing this important piece of legislation.

Currently, probate judges have broad discretion for the selection of conservators. These are often patronage appointments, which can also lead to conflicts of interest, since many judges are part-time and appoint those who practice before them and contribute to their elections. This bill will go a long way in revising the standards for appointing conservators by requiring the least restrictive forms of intervention to assist the respondent in caring and managing his or her own affairs. Moreover, this bill provides oversight and accountability of the probate courts by requiring recorded hearings and findings by clear and convincing evidence.

I would also suggest an intermediate process other than costly appeals to the superior court. Appeals to superior court are a deterrent for estates that have gone through the probate system. Instead, an     appeal mechanism to an impartial three-judge panel would provide an efficient review process.

Carolyn Dee King

Lauar DuBrava

NATURE AND SOURCES OF OPPOSITION:

None stated.

Reported by: George Marinelli

Date: 04/16/07

Sarah E. Kolb

 

Diana H. Caliendo