Connecticut Seal

General Assembly

 

Raised Bill No. 1439

January Session, 2007

 

LCO No. 5599

 

*05599_______JUD*

Referred to Committee on Judiciary

 

Introduced by:

 

(JUD)

 

AN ACT CONCERNING CONSERVATORS AND PROBATE APPEALS.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 45a-644 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2007):

For the purposes of sections 45a-644 to 45a-662, inclusive, as amended by this act, and section 3 of this act, the following terms shall have the following meanings:

(a) "Conservator of the estate" means a person, a municipal or state official, or a private profit or nonprofit corporation except a hospital or nursing home as defined in section 19a-521, appointed by the Court of Probate under the provisions of sections 45a-644 to 45a-662, inclusive, to supervise the financial affairs of a person found to be incapable of managing his or her own affairs or of a person who voluntarily asks the Court of Probate for the appointment of a conservator of the estate, and includes a temporary conservator of the estate appointed under the provisions of section 45a-654.

(b) "Conservator of the person" means a person, a municipal or state official, or a private profit or nonprofit corporation, except a hospital or nursing home as defined in section 19a-521, appointed by the [Probate] Court of Probate under the provisions of sections 45a-644 to 45a-662, inclusive, to supervise the personal affairs of a person found to be incapable of caring for himself or herself or of a person who voluntarily asks the Court of Probate for the appointment of a conservator of the person, and includes a temporary conservator of the person appointed under the provisions of section 45a-654.

(c) "Incapable of caring for one's self" or "incapable of caring for himself or herself" means that a person has a mental, emotional or physical condition resulting from mental illness, mental deficiency, physical illness or disability, chronic use of drugs or alcohol, or confinement, which results in the person's inability to provide medical care for physical and mental health needs, nutritious meals, clothing, safe and adequately heated and ventilated shelter, [personal hygiene] and protection from physical abuse or harm and which results in endangerment to such person's health.

(d) "Incapable of managing his or her affairs" means that a person has a mental, emotional or physical condition resulting from mental illness, mental deficiency, physical illness or disability, chronic use of drugs or alcohol, or confinement, which prevents that person from performing the functions inherent in managing his or her affairs, and the person has property which will be wasted or dissipated unless proper management is provided, or that funds are needed for the support, care or welfare of the person or those entitled to be supported by that person and that the person is unable to take the necessary steps to obtain or provide funds which are needed for the support, care or welfare of the person or those entitled to be supported by such person.

(e) "Involuntary representation" means the appointment of a conservator of the person or the estate, or both, after a finding by the Court of Probate that the respondent is incapable of managing his or her affairs or incapable of caring for himself or herself.

(f) "Respondent" means an adult person for whom an application for involuntary representation has been filed or an adult person who has requested voluntary representation.

(g) "Voluntary representation" means the appointment of a conservator of the person or estate, or both, upon request of the respondent, without a finding that the respondent is incapable of managing his or her affairs or incapable of caring for himself or herself.

(h) "Ward" means a person for whom involuntary representation is granted under sections 45a-644 to 45a-662, inclusive.

(i) "Least restrictive form of intervention" means that the involuntary representation (1) represents only the duties, responsibilities and powers necessary to provide for the ward's care or to manage the ward's affairs, and (2) affords the ward the greatest amount of independence and self-determination within the limitations of the resources available to the ward, either through the ward's own estate or through private or public assistance.

Sec. 2. Section 45a-649 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2007):

(a) (1) Upon an application for involuntary representation, the court shall issue a citation to the following enumerated parties to appear before it at a date, time and place named in the citation, which shall be served on the parties at least [seven] fourteen days before the hearing date, or in the case of an application made pursuant to section 17a-543 or 17a-543a, at least seven days before the hearing date, which date shall not be more than thirty days after the receipt of the application by the Court of Probate unless continued for cause shown. [Notice of the hearing shall be sent within thirty days after receipt of the application.]

[(1)] (2) The court shall direct that personal service of the citation be made, by a state marshal, constable or an indifferent person, upon the following: (A) The respondent; [, except that if the court finds personal service on the respondent would be detrimental to the health or welfare of the respondent, the court may order that such service be made upon counsel for the respondent, if any, and if none, upon the attorney appointed under subsection (b) of this section;] and (B) the respondent's spouse, if any, if the spouse is not the applicant, except that in cases where the application is for involuntary representation pursuant to section 17b-456, and there is no spouse, the court shall order notice by certified mail to the children of the respondent and if none, the parents of the respondent and if none, the brothers and sisters of the respondent or their representatives, and if none, the next of kin of such respondent.

[(2)] (3) The court shall order such notice as it directs to the following: (A) The applicant; (B) the person in charge of welfare in the town where the respondent is domiciled or resident and if there is no such person, the first selectman or chief executive officer of the town if the respondent is receiving assistance from the town; (C) the Commissioner of Social Services, if the respondent is in a state-operated institution or receiving aid, care or assistance from the state; (D) the Commissioner of Veterans' Affairs if the respondent is receiving veterans' benefits, or the Veterans' Home [, or both,] if the respondent is receiving aid or care from such home, or both; (E) the Commissioner of Administrative Services, if the respondent is receiving aid or care from the state; (F) the children of the respondent and if none, the parents of the respondent and if none, the brothers and sisters of the respondent or their representatives; and (G) the person in charge of the hospital, nursing home or some other institution, if the respondent is in a hospital, nursing home or some other institution.

[(3)] (4) The court, in its discretion, may order such notice as it directs to other persons having an interest in the respondent and to such persons the respondent requests be notified.

(5) The respondent may not waive the right to the notice required in subdivision (2) of this subsection.

(6) If personal service of the notice required in subsection (b) of this section is not made as required in subdivision (2) of this subsection, the court shall be deprived of jurisdiction over the application.

(b) [(1)] The notice required by subdivision [(1)] (2) of subsection (a) of this section shall specify [(A)] (1) the nature of involuntary representation sought and the legal consequences thereof, [(B)] (2) the facts alleged in the application, [and (C)] (3) the date, time and place of the hearing [. (2) The notice shall further state] on such application, and (4) that the respondent has a right to be present at the hearing and has a right to be represented by an attorney either at [his or her] the respondent's own expense or within the court's payment guidelines. [If the respondent is unable to request or obtain counsel for any reason, the court shall appoint an attorney to represent the respondent in any proceeding under this title involving the respondent. If the respondent is unable to pay for the services of such attorney, the reasonable compensation for such attorney shall be established by, and paid from funds appropriated to, the Judicial Department, however, if funds have not been included in the budget of the Judicial Department for such purposes, such compensation shall be established by the Probate Court Administrator and paid from the Probate Court Administration Fund.] The notice shall also include a statement in boldface type of a minimum size of twelve points in substantially the following form:

POSSIBLE CONSEQUENCES OF A COURT

FINDING THAT YOU ARE INCAPABLE

This court has received an application to appoint a conservator for you. A hearing on the application has been scheduled for (date, time and place). If the application is granted you will lose some or many of your rights. A conservator may be appointed for you. The appointment of a conservator may affect control of how you spend your money, control and management of your property, who makes your medical decisions, where you live and other important rights. You have the right to attend the hearing on the application, to present evidence, to cross-examine witnesses and to be represented by an attorney of your own choice either at your expense or within the court's payment guidelines.

If you do not have, or cannot obtain, or cannot afford an attorney, an attorney may be appointed for you by the court. You may be responsible for the cost of a court-appointed attorney. You may object to the appointment of an attorney for you. You may also request that a specific attorney be appointed for you.

(c) Notice to all other persons required by this section shall state only the nature of the involuntary representation sought, the legal consequences of the involuntary representation and the date, time and place of the hearing.

(d) If the respondent notifies the court in any manner that he or she wants to attend the hearing on the application but is unable to do so, [because of physical incapacity,] the court shall schedule the hearing on the application at a place which would facilitate attendance by the respondent. [but if not practical, then the judge shall visit the respondent, if he or she is in the state of Connecticut, before the hearing. Notice to all other persons required by this section shall state only the nature of involuntary representation sought, the legal consequences thereof and the time and place of the hearing.]

Sec. 3. (NEW) (Effective October 1, 2007) (a) Any respondent for whom an application for involuntary representation has been filed and any ward appealing from a decree issued under chapter 802h of the general statutes shall have the right to be represented by an attorney of the respondent's or ward's choice either at the respondent's or ward's expense or within the rates of compensation established pursuant to subsection (c) of this section.

(b) If the respondent or ward is unable to or does not choose an attorney or if the attorney chosen by the respondent or ward refuses to represent such respondent or ward or is not available for such representation, the court shall appoint an attorney for the respondent or ward from a panel of attorneys admitted to practice in this state provided by the Probate Court Administrator in accordance with regulations issued by the Probate Court Administrator pursuant to section 45a-77 of the general statutes. The respondent or ward may refuse such representation if the court finds that the respondent or ward understands the nature of his or her refusal. If the court appoints an attorney for the respondent or ward pursuant to this section, the court shall inform the respondent or ward of the right to file a complaint pursuant to subsection (g) of this section if the respondent or ward believes that his or her interests have not been represented with respect to such application or appeal.

(c) If the court finds the respondent or ward is indigent or otherwise unable to pay for an attorney, reasonable compensation of an attorney shall be established by, and paid from funds appropriated to, the Judicial Department. If funds have not been included in the budget of the Judicial Department for such purposes, such compensation shall be established by the Probate Court Administrator and paid from the Probate Court Administration Fund.

(d) Any attorney who has served as counsel for an individual in proceedings under chapter 802h of the general statutes shall not accept appointment as either guardian ad litem or conservator of the person or estate for that same individual, except where such attorney has been appointed by the individual pursuant to section 45a-645 of the general statutes or pursuant to a form or method set forth in subdivision (2) of subsection (g) of section 45a-650 of the general statutes, as amended by this act.

(e) Any attorney appointed pursuant to this section shall represent the respondent or ward in proceedings under chapter 802h of the general statutes, shall inform and consult with the respondent or ward regarding bringing an appeal, and shall assist in the filing of an appeal to the Superior Court if requested by the respondent or ward. An attorney's assistance in filing an appeal of a decree issued under chapter 802h of the general statutes shall not obligate the attorney to appear in or prosecute the appeal.

(f) Any attorney for a respondent or ward who is the subject of an application or appeal under chapter 802h of the general statutes shall have full access to all information relevant to such application or appeal, including, but not limited to, full and direct access to the respondent's or ward's medical records.

(g) Any respondent or ward who believes that his or her interests have not been represented by an attorney appointed pursuant to this section with respect to an application or appeal under chapter 802h of the general statutes may file a complaint with the office of the Probate Court Administrator. The Probate Court Administrator shall investigate each complaint filed pursuant to this subsection. If the Probate Court Administrator finds that an attorney appointed pursuant to this section has breached the attorney's obligations to a respondent or ward pursuant to such complaint, the Probate Court Administrator shall remove such attorney from any panel of attorneys maintained by the Probate Court Administrator in accordance with regulations issued by the Probate Court Administrator pursuant to section 45a-77 of the general statutes.

Sec. 4. Section 45a-650 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2007):

(a) At any hearing on an application for involuntary representation, the court shall require clear and convincing evidence that it has jurisdiction, including that the respondent is a resident or domiciliary of the probate district, that the respondent has been given notice as required in section 45a-649, as amended by this act, and that the respondent has been advised of the right to retain an attorney pursuant to section 3 of this act, before the court receives any evidence regarding the condition of the respondent or of the respondent's affairs. The rules of evidence in civil actions adopted by the judges of the Superior Court shall apply to all hearings pursuant to this section. All testimony at a hearing held pursuant to this section shall be given under oath or affirmation. The court shall cause an audio recording of the hearing, including all testimony, to be made and the recording shall become part of the permanent court record. The recording shall be transcribed in the event of an appeal from the decree issued under this chapter.

(b) After the court determines pursuant to subsection (a) of this section that it has jurisdiction over the application for involuntary representation, the court shall receive evidence regarding the [condition] capacity of the respondent [, including a written report or testimony by] to care for himself or herself or manage his or her affairs that may include evidence from one or more physicians licensed to practice medicine in the state who have examined the respondent within [thirty] forty-five days preceding the hearing. The [report or testimony] evidence shall contain specific information regarding the [disability and the extent of its incapacitating effect] respondent's condition and the effect of the condition on the respondent's ability to care for himself or herself or manage his or her affairs. The court [may] shall 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] evidence 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 such requirement is waived, the court shall make a specific finding in any decree issued on the petition stating why medical evidence was not required. In any matter in which the Commissioner of Social Services seeks the appointment of a conservator pursuant to chapter 319dd and represents to the court that an examination by an independent physician, psychologist or psychiatrist is necessary to determine whether the elderly person is capable of managing his or her personal or financial affairs, the court shall order such examination unless the court determines that such examination is not in the best interests of the elderly person. The court shall order such examination notwithstanding any medical report submitted to the court by the elderly person or the caretaker of such elderly person.] Any medical [report] evidence filed with the court pursuant to this subsection shall be confidential.

[(b)] (c) Upon the filing of an application for involuntary representation pursuant to section 45a-648, the court may issue an order for the disclosure of the medical information required pursuant to subsection [(a)] (b) of this section.

[(c)] (d) Notwithstanding the provisions of section 45a-7, the court [may] shall, at the request of the respondent, 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. The respondent has an absolute right to attend any hearing held under this section.

[(d)] (e) (1) If the court finds by clear and convincing evidence that the respondent is incapable of managing his or her affairs, that the respondent's affairs cannot be managed without the appointment of a conservator or any agency or person described in subdivision (2) of subsection (g) of this section, and that appointment of a conservator is the least restrictive form of intervention available to assist the respondent in managing his or her affairs, the court [shall] may 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.]

(2) If the court finds by clear and convincing evidence that the respondent is incapable of caring for himself or herself, that the respondent cannot be cared for without the appointment of a conservator or an agency or person described in subdivision (2) of subsection (g) of this section, and that appointment of a conservator is the least restrictive form of intervention available to assist the respondent in caring for himself or herself, the court [shall] may 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.]

(f) (1) In granting an application for involuntary representation and appointing a conservator of the person or of the estate, there shall be a rebuttable presumption that the court shall enter a limited order that will restrict the decision-making authority of the ward only to the extent necessary to address the specific care needs of the ward and proven to the court by clear and convincing evidence, or the management of the ward's affairs and proven to the court by clear and convincing evidence.

(2) Any conservator appointed under this section shall be granted only the duties, responsibilities and powers necessary to provide for such specific care needs or the management of the affairs of the ward in such a manner as are appropriate to the ward and that constitute the least restrictive form of intervention. The court shall make specific findings as to the clear and convincing evidence that supports the need for the duties, responsibilities and powers being assigned to the conservator.

(3) The appointment of a conservator shall be by a separate decree than the decree declaring the respondent incapable of caring for himself or herself or incapable of managing his or her affairs.

(4) Notwithstanding a finding of incapacity, nothing in this chapter shall be construed to impair or otherwise limit or diminish a ward's right to retain counsel or to seek redress of a grievance through any court or administrative agency.

[(e)] (g) (1) 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 or her person or for the management of his or her 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 court shall consider: (A) The abilities of the respondent; (B) the respondent's capacity to understand and articulate an informed preference regarding the care of his or her person or the management of his or her affairs; (C) any relevant and material information obtained from the respondent; (D) evidence of the respondent's past preferences and life style choices; (E) the respondent's cultural background; (F) the desirability of maintaining continuity in the respondent's life and environment; (G) whether the respondent had previously made alternative arrangements for the care of his or her person or for the management of his or her affairs, including, but not limited to, the execution of a durable power of attorney, springing power of attorney, the appointment of a healthcare representative, the execution of a living will or the execution of any other similar document; (H) any relevant and material evidence from the respondent's family and any other person regarding the respondent's past practices and preferences; and (I) any supportive services or technologies that are otherwise available to assist the respondent in meeting his or her needs.

(2) No conservator may be appointed if the respondent's care needs or the management of his or her affairs, as the case may be, are being met by an agency or person appointed by the respondent pursuant to (A) a form set forth in section 1-43, 19a-575a or 19a-577 or any other advance directive, as defined in section 19a-570, (B) a trust, or (C) health care instructions or appointment of a health care proxy subject to section 19a-580g.

(h) (1) When considering who may serve as conservator, the court shall appoint any person appointed by the respondent pursuant to section 45a-645, or any agency or person described in subdivision (2) of subsection (g) of this section appointed by the ward while the ward had capacity, unless such appointed person or agency is unwilling or unable to serve or there is clear and convincing evidence that there is good cause to disqualify such person or agency from serving.

(2) Unless otherwise provided in the court's decree, any decree appointing a conservator pursuant to this section shall require the conservator to comply with all health care decisions made by the ward's health care representative or health care proxy.

(3) 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] communicate a preference, nominate a conservator who shall be appointed unless the court finds [the appointment of] that the nominee is [not in the best interests of the respondent] unwilling or unable to serve or there is clear and convincing evidence that there is good cause to disqualify such person from serving. In [such case, or in] the absence of any such nomination, the court shall consider whether the proposed conservator has knowledge of the respondent's preferences regarding the care of his or her person or the management of his or her affairs, whether the proposed conservator possesses the ability to carry out the duties, responsibilities and powers of a conservator, the cost of the proposed conservatorship to the estate of the respondent, or the proposed conservator's commitment to promoting the respondent's welfare and independence, and any existing or potential conflicts of interest of the proposed conservator, and may thereafter appoint any qualified person, authorized public official or corporation in accordance with subsections (a) and (b) of section 45a-644, as amended by this act.

[(f)] (i) Upon the request of the respondent [or his or her counsel, made within thirty days of the date of the decree] or any interested party, the court shall, [make and furnish findings of fact to support its conclusion] within fourteen days of the date of such request, clarify the findings of fact required to support an appointment of conservator under this section.

[(g)] (j) If the court appoints a conservator of the estate of the respondent, [it] the court 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 under this section.

[(h) The court may limit the powers and duties of either the conservator of the person or the conservator of the estate, to include some, but not all, of the powers and duties set forth in subsections (a) and (b) of section 45a-644 and sections 45a-655 and 45a-656, and shall make specific findings to justify such a limitation, in the best interests of the ward. In determining whether or not any such limitations should be imposed, the court shall consider the abilities of the ward, the prior appointment of any attorney-in-fact, health care representative, trustee or other fiduciary acting on behalf of the ward, any support services which are otherwise available to the ward, and any other relevant evidence. The court may modify its decree upon any change in circumstances.]

Sec. 5. Section 45a-656 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2007):

(a) (1) The conservator of the person shall have [: (1) The duty and responsibility for the general custody of the respondent; (2) the power to establish his or her place of abode within the state; (3) the power to give consent for his or her medical or other professional care, counsel, treatment or service; (4) the duty to provide for the care, comfort and maintenance of the ward; (5) the duty to take reasonable care of the respondent's personal effects; and (6) the duty to report at least annually to the Probate Court which appointed the conservator regarding the condition of the respondent] only such duties, responsibilities and powers expressly assigned pursuant to section 45a-650, as amended by this act. In carrying out the duties, responsibilities and powers assigned by the Probate Court, the conservator of the person shall (A) assist the ward in achieving self-reliance and in removing obstacles to independence, (B) ascertain the ward's views with respect to the representation, (C) make all reasonable efforts to ascertain any health care instructions or health care preferences of the ward expressed pursuant to chapter 368w and other wishes of the ward, and (D) make decisions in conformance with the ward's reasonable and informed expressed preferences and wishes, including, but not limited to, such health care preferences or health care instructions.

(2) The conservator shall delegate to the ward reasonable responsibility for decisions affecting the ward's well-being consistent with the decree that appointed the conservator.

(3) The conservator shall report at least annually to the Probate Court that appointed the conservator regarding the condition of the ward, the efforts made to encourage independence and whether there are less restrictive means of managing the ward's needs without the continued appointment of a conservator. The conservator shall provide a copy of the report to each person entitled to notice pursuant to section 45a-649, as amended by this act.

(4) The [preceding] duties, responsibilities and powers set forth in this subsection shall be carried out within the limitations of the resources available to the ward, either through the ward's own estate or through private or public assistance.

(b) The conservator of the person shall not have the power or authority to cause the respondent to be committed to any institution for the treatment of the mentally ill except under the provisions of sections 17a-75 to 17a-83, inclusive, 17a-456 to 17a-484, inclusive, 17a-495 to 17a-528, inclusive, 17a-540 to 17a-550, inclusive, 17a-560 to 17a-576, inclusive, 17a-615 to 17a-618, inclusive, and 17a-621 to 17a-664, inclusive, and chapter 359.

(c) (1) If the conservator of the person determines it is necessary to cause the ward to be placed in an institution for long-term care, the conservator may make such placement after the conservator files a report of such intended placement with the Probate Court that appointed the conservator, except that if the placement results from the ward's discharge from a hospital or if irreparable injury to the mental or physical health or financial or legal affairs of the ward would result from filing the report before making such placement, the conservator shall make the placement before filing the report provided the conservator (A) files the report not later than five days after making such placement, and (B) includes in the report a statement as to the hospital discharge or a description of the irreparable injury that the placement averted.

(2) The report shall set forth the basis for the conservator's determination, what community resources are available and have been considered to avoid the placement, and the reasons why the ward's physical, mental and psychosocial needs cannot be met in a less restrictive and more integrated setting. Such community resources include, but are not limited to, resources provided by the area agencies on aging, the Department of Social Services, the Office of Protection and Advocacy for Persons with Disabilities, the Department of Mental Health and Addiction Services, the Department of Mental Retardation, any center for independent living, as defined in section 17b-613, any residential care home or any congregate or subsidized housing. The conservator shall give notice of the placement and a copy of such report to the ward and any other interested parties as determined by the court.

(3) Upon the request of the ward or such interested party, the court shall hold a hearing on the report and placement not later than thirty days after the date of the request. The court may also, in its discretion, hold a hearing on the report and placement in any case where no request is made for a hearing. If the court, after such hearing, determines that the ward's physical, mental and psychosocial needs can be met in a less restrictive and more integrated setting within the limitations of the resources available to the ward, either through the ward's own estate or through available private or public assistance for which the ward is eligible, the court shall order that the ward be placed and maintained in such setting.

(4) For purposes of this subsection, an "institution for long-term care" means a facility that has been federally certified as a skilled nursing facility or intermediate care facility.

Sec. 6. Section 45a-186 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2007):

(a) Any person aggrieved by any order, denial or decree of a [Court of probate] Probate Court in any matter, unless otherwise specially provided by law, may, not later than sixty days after receipt of such order, denial or decree, appeal therefrom to the Superior Court by filing a complaint [in accordance with subsection (b) of this section. Except in the case of an appeal by the state, such person shall give security for costs in the amount of one hundred fifty dollars, which may be paid to the clerk, or a recognizance with surety annexed to the appeal and taken before the clerk or a commissioner of the Superior Court or a bond substantially in accordance with the bond provided for appeals to the Supreme Court] in the Superior Court for the judicial district in which such Probate Court is located, except that (1) any appeal under subsection (b) of section 12-359 or subsection (b) of section 12-367 or subsection (b) of section 12-395, shall be filed in the judicial district of Hartford, and (2) any appeal in a matter concerning removal of a parent as guardian, termination of parental rights or adoption shall be filed in the Superior Court for juvenile matters having jurisdiction over matters arising in such probate district. The complaint shall state the reasons for the appeal and a copy of the order, denial or decree appealed from shall be attached thereto. Appeals from any decision rendered in any case after a [record] recording of the hearing is made under sections 17a-498, 45a-650, as amended by this act, 51-72 and 51-73 shall be on the record and shall not be a trial de novo.

(b) Any such appeal shall be [filed in the Superior Court for the judicial district in which such court of probate is located except that (1) any appeal under subsection (b) of section 12-359 or subsection (b) of section 12-367 or subsection (b) of section 12-395, shall be filed in the judicial district of Hartford and (2) any appeal in a matter concerning removal of a parent as guardian, termination of parental rights or adoption shall be filed in the Superior Court for juvenile matters having jurisdiction over matters arising in such probate district.] initiated by filing a complaint in the Superior Court in accordance with subsection (a) of this section. Each person who files an appeal pursuant to this section shall serve a copy of the complaint upon all interested parties and on the Probate Court that rendered the order, denial or decree appealed from. Failure to make such service shall not deprive the Superior Court of jurisdiction over the appeal. Service of the appeal shall be made by (1) United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a state marshal or any other proper officer, or (2) by personal service by a proper officer or indifferent person making service in the same manner as complaints are served in ordinary civil actions. If service of the appeal is made by mail, service shall be effective upon deposit of the appeal in the mail. In appeals from the Probate Court, neither the Probate Court nor its agents shall be parties to the appeal.

(c) Not later than fifteen days after the appeal is filed, the person who filed the appeal shall file or cause to be filed with the clerk of the Superior Court the return receipts or the officer's return stating the date and manner in which a copy of the appeal was served on the Probate Court and each interested party.

(d) If service has not been made on an interested party, the Superior Court, on motion, shall make such orders of notice of the appeal as are reasonably calculated to notify each person listed in the decree not yet served.

(e) Any appeal from probate proceedings under section 17a-77, 17a-80, 17a-498, 17a-510, 17a-511, 17a-543, 17a-543a, 17a-685, 45a-650, as amended by this act, 45a-654, 45a-660, 45a-674, 45a-676, 45a-681, 45a-682, 45a-699, 45a-703, or 45a-717, shall, unless a stay has been issued pursuant to subsection (f) of this section, be heard and decided not later than ninety days of the filing of the appeal.

(f) The filing of an appeal shall not, of itself, stay enforcement of the order or decree. A motion for a stay may be made to the Probate Court or the Superior Court. The filing of the motion with the Probate Court shall not preclude action by the Superior Court.

(g) Except in appeals requiring a trial de novo, the Probate Court shall cause the entire record of the hearing to be transcribed within thirty days after the filing of the appeal, or within such further time as may be allowed by the Superior Court, any portion of the record that has not been transcribed, and transmit to the reviewing court the original or a certified copy of the entire record of the proceeding appealed from, which shall include the Probate Court's findings of fact and conclusions of law, separately stated. By stipulation of all persons listed in the decree to such appeal proceedings, the record may be shortened. A person listed in the decree unreasonably refusing to stipulate to limit the record may be taxed by the Superior Court for the additional costs. The Superior Court may require or permit subsequent corrections or additions to the record.

(h) Appeals from decrees made after a recording of the hearing is made shall be conducted by the Superior Court without a jury and shall be confined to the record. If alleged irregularities in procedure before the Probate Court are not shown in the record or if facts necessary to establish aggrievement are not shown in the record, proof limited to such irregularities or aggrievement may be taken in the Superior Court. The Superior Court, upon request, shall hear oral argument and receive written briefs.

(i) The Superior Court shall affirm the decision of the Probate Court unless the Superior Court finds that substantial rights of the person who filed the appeal have been prejudiced because the findings, inferences, conclusions or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the Probate Court; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the Superior Court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment that modifies the Probate Court order and decree or remand the case for further proceedings. For purposes of this section, a remand is a final judgment.

(j) Except in matters requiring a trial de novo, in any case in which a person appealing claims that the person cannot pay the costs of an appeal under this section, the person may, within the time permitted for filing the appeal, file with the clerk of the court to which the appeal is to be taken an application for waiver of payment of such fees, costs and necessary expenses, including the requirements of bond, if any. The application shall conform to the requirements prescribed by rule of the judges of the Superior Court. After such hearing as the court determines is necessary, the court shall render its judgment on the application, which judgment shall contain a statement of the facts the court has found, with its conclusions thereon. The filing of the application for the waiver shall toll the time limits for the filing of an appeal until such time as a judgment on such application is rendered.

Sec. 7. Section 45a-191 and 45a-192 of the general statutes are repealed. (Effective October 1, 2007)

This act shall take effect as follows and shall amend the following sections:

Section 1

October 1, 2007

45a-644

Sec. 2

October 1, 2007

45a-649

Sec. 3

October 1, 2007

New section

Sec. 4

October 1, 2007

45a-650

Sec. 5

October 1, 2007

45a-656

Sec. 6

October 1, 2007

45a-186

Sec. 7

October 1, 2007

Repealer section

Statement of Purpose:

To revise the process for the appointment of conservators and the review of such appointments and other probate court orders.

[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]