OLR Bill Analysis

sSB 1005

AN ACT PROTECTING ELDERLY CONSUMERS FROM EXPLOITATION AND ADOPTING THE CONNECTICUT UNIFORM POWER OF ATTORNEY ACT.

SUMMARY:

This bill makes a number of changes regarding elder abuse and enacts the Uniform Power of Attorney Act.

Regarding elder abuse, the bill:

1. makes certain emergency medical service providers and financial institution officers and employees mandated reporters of elderly abuse, limits which patient advocates are mandated reporters, and expands training requirements for employees of certain entities who care for someone age 60 or older;

2. makes it a form of 2nd degree larceny to obtain property by exploiting a victim who is age 60 or older, blind, or physically disabled and allows the court to prohibit the defendant from disposing of property involved in the alleged exploitation;

3. prohibits someone convicted of larceny by exploitation from inheriting, receiving insurance benefits, or receiving certain property from a deceased victim;

4. gives abused, neglected, or exploited elderly people a civil cause of action against perpetrators; and

5. requires the Commission on Aging to study best practices for reporting and identifying elderly abuse, neglect, exploitation, and abandonment.

The bill also enacts the Uniform Power of Attorney Act and repeals current law governing powers of attorney (POA). Compared to current law, the bill, among other things:

1. more extensively covers agents' authority, duties, and liabilities;

2. allows a principal to grant an agent authority over more subjects, with more specific powers for agents described under each subject than under current law;

3. makes a POA created under its provisions durable, meaning its effectiveness continues when the principal becomes incapacitated, unless the POA expressly states otherwise (currently, for a POA to be durable, it must expressly state that it continues after incapacity and be executed and witnessed like a deed) ( 12 & 61);

4. authorizes certain people to petition the probate court to review a POA or an agent's conduct;

5. requires people to accept POAs in most circumstances, allows people to request information about them, and limits when people can refuse to accept them; and

6. provides sample POA forms to implement the bill's provisions ( 49 & 50).

The bill gives the probate court power to construe POAs, require agents to account to the court about estates under their control, and provide relief ( 54).

Finally, the bill makes technical and conforming changes.

EFFECTIVE DATE: October 1, 2015

1-2 — REPORTING ELDER ABUSE

Definitions

The bill changes the definition of exploitation for things such as reporting suspected exploitation, training mandated reporters, and protective investigations and services the Department of Social Services (DSS) provides.

Currently, elderly exploitation occurs when someone takes advantage of an elderly person whether for monetary, personal, or other benefit, gain, or profit. The bill instead defines it as when a person (1) is in a position of trust and confidence with an elderly person; (2) knowingly uses, controls, or possesses the person's funds, assets, or property or attempts to do so; and (3) intends to temporarily or permanently deprive the person of their use, benefit, or possession. This includes:

1. breach of a fiduciary relationship, such as misusing a power of attorney or abusing guardianship or conservatorship;

2. unauthorized use of personal assets; or

3. misappropriating, misusing, or transferring an elderly person's money from a personal or joint account.

The bill defines a person in a “position of trust and confidence” as someone who (1) knows or should know that the elderly person lacks capacity to consent or deceives the elderly person into consenting, by the nature of their relationship, to exploitation of funds, assets, or property and (2) intends to temporarily or permanently deprive the elderly person of the use, benefit, or possession of funds, assets, or property to benefit someone else.

Mandated Reporters

The law requires certain professionals (mandated reporters) to notify DSS when they reasonably suspect an elderly person (1) has been abused, neglected, abandoned, or exploited or (2) needs protective services. The bill adds as mandated reporters:

1. the following licensed or certified emergency medical service providers: paramedics; emergency medical responders, technicians, advanced technicians, and technician-paramedics; service instructors; and any of these professionals who are members of a municipal fire department and

2. certain financial agents, including officers and employees of banks, savings banks, credit unions, trust companies, savings and loan associations, insurance companies, investment companies, mortgage bankers, trustees, executors, pension or retirement funds, other fiduciaries, and private financial institutions.

To be a mandated reporter, a financial agent must (1) have direct contact with an elderly person within the scope of employment or professional practice and observe or have knowledge of an incident that they believe in good faith appears to be exploitation or (2) review or approve an elderly person's financial documents, records, or transactions and have a reasonable suspicion based on a pattern of withdrawals, transfers, or other activity that exploitation has or may be occurring.

The bill also limits the types of patient advocates who are mandated reporters to those who are professional patients' advocates and excludes Office of the Long-Term Care Ombudsman representatives.

In addition to those discussed above, the following people are already mandated reporters:

1. licensed physicians, surgeons, and practical nurses;

2. hospital resident physicians and interns, registered nurses, medical examiners, dentists, optometrists, chiropractors, podiatrists, social workers, pharmacists, psychologists, and physical therapists;

3. members of the clergy;

4. police officers;

5. nursing home administrators, nurses' aides, orderlies, staff employees, and others paid to care for patients in nursing homes or residential care homes;

6. anyone paid by an institution, organization, agency, or facility to care for an elderly person, including employees of (a) community-based service providers, (b) senior centers, (c) home care and homemaker-companion agencies, (d) adult day care centers, (e) village-model communities, and (f) congregate housing facilities.

Failure to make a report is punishable by a fine of up to $500. An intentional failure to report is a class C misdemeanor for a first offense (punishable by up to three months in prison, a fine of up to $500, or both) and a class A misdemeanor for a subsequent offense (punishable by up to one year in prison, a fine of up to $2,000, or both).

Training

The bill expands the training that institutions, organizations, agencies, and facilities employing individuals to care for someone age 60 or older must provide their employees. The bill requires this training to cover detecting elderly exploitation and abandonment, in addition to the current topics of abuse and neglect and informing employees of their reporting responsibilities.

3-4 & 6-7 — LARCENY BY EXPLOITATION

3-4 — 2nd Degree Larceny

The bill makes it a form of 2nd degree larceny to obtain property by exploitation, regardless of its value, when the victim is age 60 or older, blind, or physically disabled. This crime is a class C felony punishable by one to 10 years in prison, a fine of up to $10,000, or both. This penalty already applies when the property involved is obtained from such persons by embezzlement, false pretenses, or false promise.

Under the bill, a person obtains property by exploitation when he or she (1) is in a position of trust and confidence with an elderly person; (2) knowingly uses, controls, or possesses the person's funds, assets, or property or attempts to do so; and (3) intends to temporarily or permanently deprive the person of their use, benefit, or possession.

By law, larceny generally involves intentionally depriving someone of property or wrongfully appropriating it. Depending on the property's value, the penalty for larceny ranges from a class C misdemeanor (punishable by up to three months in prison, a fine of up to $500, or both) to a class B felony (punishable by one to 20 years in prison, a fine of up to $15,000, or both).

6 — Court Order to Protect Funds

During a prosecution for this crime, the bill allows the state to show, by a preponderance of the evidence, that there is probable cause to believe that funds, assets, or property are being used or about to be used in a way that constitutes exploitation. If the state does so, the Superior Court can issue an order prohibiting the defendant from transferring, depleting, alienating, or diminishing the funds, assets, or property. The bill requires service of the order on the defendant and allows the defendant or someone else with an interest, within 30 days of service, to file a motion for release of the property. The court must hold a hearing on a motion within 10 days of its filing.

The court must vacate its order if the larceny charge is dismissed (including when the state declines to prosecute) or the defendant is acquitted.

7 — Inheritance and Estates

The bill prohibits someone convicted of larceny by exploitation from inheriting or receiving part of the estate from the victim. This applies when a conviction as a principal or accessory of the crime is final. The bill also excludes from inheriting or receiving someone who would have been found guilty of the offense, as a principal or accessory, if he or she had survived, as determined by the Superior Court by a preponderance of the evidence in an action brought by an interested person.

The bill prohibits a named beneficiary on an insurance policy or annuity from receiving any benefits if he or she is convicted of larceny by exploitation against the person who is the subject of the policy or annuity. The bill also allows an interested party to bring a court action to determine by a preponderance of the evidence that a beneficiary who predeceased the interested person would have been found guilty of this crime. If there is neither a conviction or action by an interested party, the bill allows a court to determine, based on the common law including equity, that the person is not entitled to benefits. A person challenging someone else's entitlement to benefits has the burden of proof in one of these proceedings.

When a person is prohibited from inheriting or receiving part of an estate under the bill's provisions, he or she is considered to have predeceased the deceased victim for purposes of determining inheritance and distributing the estate.

Under the bill, an insurance company that makes a payment under a policy's or annuity's terms is not liable for additional payments under the bill's provisions unless, before making the payment, it received a written notice of claim under the bill's provisions at its home office or principal address.

If a person found guilty of this offense owned property with the deceased in joint tenancy with right of survivorship (where two or more people jointly own the property and the survivor takes full ownership), the bill makes the person and the deceased tenants in common (where each owns an interest that can be transferred and the interest does not end when the person dies) when the conviction is final. If real property was jointly owned, the estate fiduciary must record a certified copy of the final conviction on the town land records and any other interested party may do so.

The law contains similar provisions for victims of murder with special circumstances, murder, felony murder, arson murder, 1st degree manslaughter with or without a firearm, or a similar crime in another jurisdiction (CGS 45a-447).

5 — CIVIL ACTION FOR ABUSED, NEGLECTED, OR EXPLOITED ELDERLY PEOPLE

The bill gives abused, neglected, or exploited elderly people a cause of action against their perpetrators and allows them to recover actual and punitive damages, costs, and reasonable attorney's fees. It allows the following people to bring the suit:

1. the elderly person;

2. his or her guardian or conservator;

3. another person or an organization acting on the elderly person's behalf with consent from the elderly person or his or her guardian or conservator; or

4. the personal representative of a deceased elderly victim's estate, regardless of whether the perpetrator caused the death.

The bill allows someone age 65 and older who files one of these suits to ask the court to advance the trial on the docket under a law that gives cases involving people at least age 65 precedence over most other civil actions. The presiding judge can advance the trial after considering the person's age and health.

8 — STUDY ON REPORTING ELDER ABUSE, NEGLECT, EXPLOITATION, AND ABANDONMENT

The bill requires the Commission on Aging to study best practices for reporting and identifying abuse, neglect, exploitation, and abandonment of elderly people, including:

1. models nationwide for reporting;

2. standardized definitions, measurements, and uniform reporting mechanisms for accurate data collection in Connecticut; and

3. methods to promote and coordinate communication about reporting among state and local government entities.

The commission must consult with the Connecticut Elder Justice Coalition Coordinating Council, DSS, Department on Aging, Office of the Long-Term Care Ombudsman, and chief state's attorney. It must report the study's results to the Aging Committee by January 1, 2016.

9-61 — UNIFORM POWER OF ATTORNEY ACT

The bill enacts the Uniform Power of Attorney Act and repeals current law governing POAs, including a statutory POA form, a list of powers the principal can grant an agent in different subjects, and provisions terminating a POA when a conservator of the estate is appointed for a principal who can no longer manage his or her own affairs. Current law allows a principal to grant an agent authority over subjects such as real estate, stocks and bonds, banking transactions, litigation, and personal relationships.

A POA is a document used by a person (the principal) to designate someone (the agent) to make decisions and act on the principal's behalf. POAs generally name the agent and the powers granted to him or her.

11& 53 — Applicability

The bill applies to all POAs except a:

1. POA to the extent it is coupled with an interest in the subject of the power, including a power given to or for a creditor's benefit in a credit transaction;

2. POA to make health care decisions;

3. proxy or other delegation of voting or management rights relating to an entity; or

4. POA created on a government form for a governmental purpose.

It generally applies to (1) POAs regardless of when they were created, (2) judicial proceedings about a POA starting on or after October 1, 2015, and (3) judicial proceedings commenced before that date unless the court finds that applying one of the bill's provisions substantially interferes with the proceeding or prejudices a party's rights. The bill does not affect an act by an agent under a POA before October 1, 2015.

13-15 — Validity of a POA

Under the bill, a POA executed in Connecticut before October 1, 2015 is valid if it complies with the legal requirements in place at the time of its execution. A POA executed on or after that date is valid if (1) the principal or someone he or she directs signs the principal's name and dates the document and (2) two people witness it.

Signatures by someone other than the principal must take place in the principal's conscious presence. A signature is presumed genuine if the principal acknowledges it before a person authorized to take acknowledgements, such as a notary.

The bill makes an out-of-state POA valid in Connecticut if, at the time of execution, it complied with the requirements of (1) the jurisdiction where it was created, (2) the jurisdiction indicated in the POA, or (3) federal law if it is a military POA. Under the bill, the law of the jurisdiction where the POA was created or the jurisdiction indicated in the POA determines a POA's meaning and effect.

The bill gives a photocopy or electronic copy of the original POA the same effect as the original unless another statute or the POA provides otherwise.

16 & 56-57 — Conservators

The bill allows a principal to nominate a conservator of the estate or conservator of a person in a POA. By law, a probate court can appoint a (1) conservator of the estate for someone who is incapable of managing his or her affairs and (2) conservator of the person for someone who is incapable of caring for himself or herself.

If the principal is the subject of a protective proceeding after executing the POA, the bill requires the court to appoint the person most recently nominated as conservator in a POA unless (1) the person is unwilling or unable to serve or (2) substantial evidence shows he or she should be disqualified.

Unless the POA provides otherwise, the bill suspends a POA when a court appoints a conservator of the estate or another fiduciary to manage some or all of the principal's property. A court appointing a conservator can limit, suspend, or terminate an agent's authority, and the agent retains authority not assigned to the conservator. The court can allow the POA to continue, in which case the agent is accountable to the fiduciary and principal. The court can continue certain provisions of the POA while excluding others. The bill reinstates a suspended POA when the principal regains capacity and the conservatorship ends.

17 — When a POA Becomes Effective

Under the bill, a POA is effective when it is executed unless the POA specifies otherwise.

The principal may, in any POA effective based on a future event or contingency, authorize someone to determine in a record that the event or contingency has occurred. If the contingency is the principal's incapacity, and the POA does not designate anyone to determine the principal's incapacity or the authorized person is unable or unwilling to do so, the bill requires the determination in a record from:

1. two independent physicians stating that the principal has a mental, emotional, or physical condition that makes him or her unable to receive and evaluate information or make or communicate decisions or

2. a judge or an appropriate government official who states that the principal is missing, detained (including incarcerated), or outside the United States and unable to return.

The bill authorizes a person chosen to determine incapacity in a POA to act as the principal's personal representative under the federal Health Insurance Portability and Accountability Act (HIPAA) and regulations to access health care information and communicate with health care providers.

The bill provides a sample affidavit form if the POA authorizes someone to determine that an event or contingency occurred.

18 & 19 — Terminating a POA or Agent's Authority

POA. A POA terminates when the:

1. principal dies;

2. principal becomes incapacitated, if the POA is not durable;

3. principal revokes it;

4. POA states that it terminates;

5. POA's purpose is accomplished;

6. principal revokes the agent's authority or the agent dies, is incapacitated, or resigns, and the POA does not provide for another agent; or

7. court decides to terminate the POA in connection with a conservatorship proceeding.

A principal's execution of a subsequent POA does not revoke a previous one unless the new one specifies that it does or states that it revokes all previous POAs.

Agent's Authority. Unless the POA provides otherwise, an agent may exercise his or her authority until the authority terminates regardless of the amount of time since executing the POA.

The bill terminates an agent's authority when the:

1. principal revokes the authority;

2. court appoints a conservator and chooses to terminate the agent's authority;

3. agent dies, resigns, or becomes incapacitated;

4. agent is the principal's spouse and an action is filed to dissolve or annul the agent's marriage to the principal or for legal separation (the POA can provide that this provision does not apply); or

5. POA terminates.

Unless the POA provides otherwise, an agent is incapacitated when there is a determination in a record that the agent:

1. has a mental, emotional, or physical condition that makes him or her unable to receive and evaluate information or make or communicate decisions, as determined by (a) a judge in a court proceeding, (b) two independent physicians, or (c) a successor agent if the primary agent refuses to be examined by a physician or fails to execute a release of medical information or

2. is missing, detained (including in prison), or outside the U.S. and unable to return, as determined by a judge or an appropriate government official.

Binding Actions After Termination. The principal and his or her successors are bound by an agent's actions after an agent's authority or the POA terminates when the agent or other person does not know of the termination and acts in good faith under the POA. This also applies when a POA that is not durable terminates due to the principal's incapacity. But a principal is not bound by acts that are otherwise invalid or unenforceable.

14, 19-22 & 26 — Agents

19 — Coagents. A POA may designate two or more coagents who can exercise their authority independently, unless the POA provides otherwise. A person who in good faith accepts an acknowledged POA from a coagent without knowing the POA or the agent's authority is void, invalid, or terminated or the agent is exceeding or improperly using his or her authority, can rely on the POA .

19 —Successor Agents. The POA can also designate successor agents to replace an agent who resigns, dies, is incapacitated, is unqualified, or declines to serve. The POA can grant authority to designate successor agents to (1) an agent or (2) a person designated by name, office, or function. Unless the POA provides otherwise, a successor agent has the same authority as the original agent and cannot act until there are no predecessor agents.

20 — Compensation. Unless the POA provides otherwise, an agent is entitled to (1) reimbursement for expenses reasonably incurred on the principal's behalf and (2) reasonable compensation.

21 — Accepting Appointments. Unless the POA provides otherwise, a person accepts an appointment as agent if he or she uses the agent's authority, performs the agent's duties, or takes other actions indicating acceptance.

22 — Duties. Regardless of the POA's provisions, an agent who accepts an appointment must act:

1. according to the principal's reasonable expectations, make reasonable efforts to determine them if they are unknown, and otherwise act in the principal's best interest;

2. in good faith; and

3. within the POA's granted authority.

The bill sets additional rules for agents but allows the POA to alter these provisions. Unless the POA provides otherwise, the agent must:

1. act loyally for the principal's benefit;

2. avoid conflicts of interest that impair the agent's ability to act impartially in the principal's best interest;

3. act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances;

4. keep records of receipts, disbursements, and transactions made on the principal's behalf;

5. cooperate with someone who has authority to make the principal's health care decisions to carry out the principal's reasonable expectations, if actually known, and otherwise act in the principal's best interest; and

6. attempt to preserve the principal's estate plan if the agent actually knows about it and it is consistent with the principal's best interest based on all relevant factors.

For actions regarding the principal's estate, the agent must consider factors including (1) the property's value and nature; (2) the principal's foreseeable obligations and need for maintenance; (3) minimizing taxes; and (4) eligibility for federal or state benefits, programs, or assistance.

22(h) — Disclosing Certain Records. Unless the POA provides otherwise, an agent is not required to disclose receipts, disbursements, or transactions unless ordered by a court or requested by:

1. the principal;

2. a guardian, conservator, or other fiduciary acting for the principal;

3. a representative of DSS' Division of Protective Services for the Elderly who has authority to protect the principal's welfare; or

4. the personal representative or successor in interest of the principal's estate after the principal's death.

An agent must (1) comply with a request for these documents within 30 days or (2) explain in a record why he or she needs additional time and comply within 30 days of providing the record.

26 — Resignation. Unless the POA provides a different method, an agent may resign by notifying the principal. If the principal is incapacitated, the agent must notify:

1. any appointed guardian, conservator of the estate or person, and any coagent or successor agent or

2. if none of the above exist, the principal's spouse and children, someone reasonably believed to have sufficient interest in the principal's welfare, or a representative of DSS' Division of Protective Services for the Elderly who has authority to protect the principal's welfare.

19, 22-23 & 25 — Agent Liability

Protections. The bill protects an agent from liability under certain circumstances. Specifically, he or she is not liable:

1. to beneficiaries of an estate plan for failing to preserve it if he or she acts in good faith;

2. solely because he or she also benefits from an act or has an interest or conflict about the principal's property or affairs if the agent acts with care, competence, and diligence for the principal's best interest;

3. if the principal's property declines in value, unless the agent breached a duty;

4. for the acts, errors, or defaults of someone to whom the agent delegates his or her authority or engages on the principal's behalf, if the agent selected and monitored the person using care, competence, and diligence; and

5. for the actions of another agent, if he or she did not participate in or conceal the other agent's breach of fiduciary duty, unless the POA provides otherwise.

An agent with knowledge of a breach or an imminent breach must, unless the POA provides otherwise, notify the principal and take reasonable steps to safeguard an incapacitated principal's interests. An agent who fails to take these actions is liable for reasonably foreseeable damages that could have been avoided by taking the required action.

Special Skills. When determining whether an agent acted appropriately under the circumstances, the bill requires considering an agent's special skills or expertise if he or she was selected as agent because of them or in reliance on the agent's representations about them.

Waiving Liability. The bill makes binding a POA provision relieving an agent of liability for breaching a duty, unless it:

1. relates to a breach involving dishonesty, improper motive, or reckless indifference to the POA's purpose or the principal's best interest or

2. was included because of an abuse of a confidential or fiduciary relationship with the principal.

Liability to Principal and Successors. An agent who violates the bill's provisions is liable to the principal or his or her successors in interest for:

1. an amount required to restore the value of the principal's property to what it would have been if the violation did not occur and

2. reasonable attorney's fees and costs paid on the agent's behalf.

24 & 55 — Petitioning Probate Court to Review POA or Agent's Conduct

The following people may petition the probate court to construe a POA, review an agent's conduct, or obtain relief, such as an accounting:

1. the principal or agent;

2. a guardian, conservator, or other fiduciary acting for the principal;

3. a person authorized to make the principal's health care decisions;

4. the principal's spouse, parent, descendant, or caregiver;

5. an individual who (a) would qualify as the principal's presumptive heir or (b) demonstrates sufficient interest in the principal's welfare, such as a caregiver;

6. a person named as a beneficiary to receive property, a benefit, or a contractual right when the principal dies or a trust beneficiary with a financial interest in the principal's estate;

7. a representative of DSS' Division of Protective Services for the Elderly who has authority to protect the principal's welfare; or

8. a person asked to accept the POA.

The person must apply to the probate court in the district (1) where the agent has a place of business; (2) where the agent or principal resides; or (3) if the principal is deceased, with jurisdiction over the estate or where the principal resided immediately before death.

The bill requires the probate court to grant the petition if it is filed by the principal, agent, guardian, conservator, or other fiduciary. It may do so for any of the people listed above if (1) the petitioner has sufficient interest to be entitled to relief, (2) there is cause shown for the relief requested, and (3) the petition is not intended to harass. The court must dismiss a petition on the principal's motion unless he or she is incapacitated.

27 & 28 — Accepting a POA

Acknowledged POA. A person who in good faith accepts an acknowledged POA may rely on the bill's presumption that the signature on the POA is genuine (see 13), as long as the person accepting it does not know that the signature is not genuine. Such a person can rely on the POA if he or she does not know that the (1) POA or the agent's authority is void, invalid, or terminated or (2) agent is exceeding or improperly exercising his or her authority.

Requesting Information. A person asked to accept an acknowledged POA may request and rely on:

1. an agent's certification under penalty of perjury of any fact concerning the principal, agent, or POA;

2. an English translation of any part of the POA in another language; and

3. a counsel's opinion regarding any legal matter involving the POA if the reason for the request is put in a record.

The principal must pay the expense of a translation or opinion if the request for one is made within seven days of presenting the POA for acceptance.

Actual Knowledge of Facts Relating to the POA. A person or business entity that conducts activities through an employee does not have actual knowledge of a fact involving the POA, principal, or agent if the employee conducting the activity does not know the fact.

Accepting a POA. A person must either accept an acknowledged POA or request information as described above within seven business days of being presented with the POA. If information is requested, the person must accept the POA within five business days of receiving the response.

No one may require an additional or different POA regarding the same authority in a presented POA.

Refusing a POA. A person may refuse to accept an acknowledged POA if:

1. he or she cannot engage in a transaction because the principal is not eligible or qualified to engage in the transaction;

2. he or she knows that the agent's authority or the POA terminated;

3. the transaction would violate state or federal law;

1. a request for information as described above was refused;

1. he or she has a good faith belief the POA is invalid or the agent lacks authority regarding a particular act, whether or not the person requests or receives additional information through the above process; or

1. he or she makes or knows someone has made a report to DSS' Bureau of Aging with a good faith belief that the principal is subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or someone connected to the agent.

But a probate court or the Superior Court can require a person who refuses to accept an acknowledged POA in violation of the bill to accept it. The court can award reasonable attorney's fees and costs that the prevailing party incurred in the action.

32-48 — Agent's Powers

If the POA expressly grants authority, and exercising the authority is not prohibited by another agreement or instrument to which the authority or property is subject, such as a trust, an agent may perform the following activities:

1. create, change, revoke, or terminate an inter vivos trust (i.e., one created and effective during a person's lifetime);

2. make a gift;

3. create or change survivorship rights or a beneficiary designation;

4. delegate authority under the POA;

5. waive the principal's right to be a beneficiary of a joint and survivor annuity;

6. exercise fiduciary powers that the principal can delegate; or

7. disclaim property.

An agent who is not the principal's ancestor, spouse, or descendant may not create an interest in the principal's property in the agent or someone the agent is legally obligated to support. But the bill allows the POA to specify otherwise.

The bill also provides that:

1. when authorities granted an agent are similar and overlap, the broadest authority controls;

2. an agent can exercise authority over property the principal has when executing the POA or that is acquired later, regardless of which state it is in or whether the POA is executed in Connecticut; and

3. an agent's act under a POA binds the principal and his or her successors as if the principal performed the act.

32-34 — Incorporating Powers in a POA. A POA granting an agent authority to do all the acts the principal could do gives the agent the general authority to perform all the functions for the subjects listed below in Table 1, except a grant of authority regarding gifts is subject to the bill's provisions unless the POA provides otherwise.

The bill gives an agent all of the authority described above and in Table 1 below, if the POA refers to general authority and uses the descriptive terms for the subjects or cites the relevant sections of the bill for those subjects. Such a reference regarding a subject or citation incorporates all of the provisions regarding that subject. The bill allows a principal to modify an authority incorporated by reference.

The bill provides that a POA incorporating the subjects listed in Table 1 by reference or granting an agent authority to do all the acts that the principal could do authorizes the agent, for each subject, to take a number of actions, such as:

1. demanding, receiving, or using money to which the principal is entitled;

2. entering and changing contracts;

3. executing documents;

4. seeking court or government assistance;

5. paying professionals, such as lawyers and advisors;

6. initiating, participating in, and settling legal claims;

7. communicating with government officials;

8. accessing and making the principal's communications; and

9. doing other lawful acts.

But the bill allows the POA to provide otherwise.

35-48 — Granting Authority by Subject. The bill describes the specific actions an agent can perform when in a POA grants an agent general authority over a subject. But the bill allows a POA to provide otherwise. Table 1 lists each subject covered by the bill and provides examples of the authority the bill gives to an agent under each subject.

Table 1: Agent's Powers Authorized by the Bill, by Subject

Subject ()

Examples of Agent's Specific Authority Regarding the Subject

Real property ( 35)

Selling and making certain property transfers, applying for government permits, mortgaging the property and taking other credit-related actions, and using or altering structures

Tangible personal property ( 36)

Selling and making certain property transfers, granting security interests, and managing the property

Stocks and bonds ( 37)

Buying and selling stocks and bonds, changing accounts related to them, using them to borrow money, and exercising voting rights

Commodities and options ( 38)

Buying and selling commodities and options and changing accounts related to them

Banks and financial institutions ( 39)

Making changes to accounts or contracting for services with these institutions, using safe deposit boxes, borrowing money, and using checks or other forms of payment

Operating an entity or business ( 40)

Subject to a document or agreement governing an entity or ownership interest: operating or making changes to ownership interests, performing duties or discharging liabilities, exercising rights, taking certain actions when the principal is the sole owner, adding capital to the entity, and taking part in certain transactions

Insurance and annuities ( 41)

Paying premiums and making changes to insurance contracts and annuities, acquiring loans based on an insurance or annuity contract, exercising elections and investment powers, determining payments from insurance contracts or annuities, and paying related taxes

Estates, trusts, and other beneficial interests ( 42)

Accepting and disposing of payments from a trust, estate, or beneficial interest; exercising a power of appointment; and transferring securities to the trustee of a revocable trust

Claims and litigation ( 43)

Asserting claims before courts and administrative agencies, seeking relief and satisfying judgments, accepting service of process, acting for the principal in bankruptcy proceedings, paying judgments, and settling claims

Personal and family maintenance ( 44)

Acting to maintain the customary standard of living and providing living quarters for the principal and certain others, making support payments required by law or agreement, paying health care expenses, and providing for transportation and other needs and expenses

Benefits from government programs and civil or military service ( 45)

Making changes regarding the principal's enrollment in benefit programs, making benefit claims, and receiving claim proceeds

Retirement plans ( 46)

Determining how to receive payments from plans, creating and contributing to plans, making investments, and making decisions regarding assets

Taxes ( 47)

Preparing and filing income, gift, payroll, and other taxes; paying taxes and claiming refunds; receiving confidential information from taxing authorities; and acting for the principal in all matters before taxing authorities

Gifts ( 48)

Making gifts with consideration of certain federal tax consequences and consistent with the principal's objectives, if known, or as the agent determines are in the principal's best interest based on certain factors

29-31 & 51-52 — Other Provisions

Under the bill:

1. the principles of law and equity generally supplement the bill's provisions ( 29);

2. the bill's provisions do not supersede other laws on financial institutions, and other entities and the other laws control if they are inconsistent with the bill ( 30); and

3. the bill's remedies do not limit other rights and remedies under state law ( 31).

In applying and construing the bill's provisions, consideration must be given to the need to promote uniformity with respect to its subject matter among states that have enacted the uniform provisions ( 51).

The bill provides that it modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act (E-SIGN). But it does not (1) modify, limit, or supersede E-SIGN's provisions on consumer disclosures (such as when consumers are considered to have consented to electronic disclosures) or (2) authorize electronic delivery of specified notices that are not subject to E-SIGN ( 52). The bill does not specify how it relates to the Connecticut Uniform Electronic Transactions Act (CUETA) (CGS 1-266 to -286), which also validates the use of electronic records and signatures.

The probate court generally has jurisdiction to construe the meaning and effect of an inter vivos trust if the court could order an accounting. The bill limits this jurisdiction to cases where a trust beneficiary petitions the court for this purpose ( 54).

BACKGROUND

Related Bill

sSB 706, favorably reported by the Aging Committee, contains similar provisions on mandated reporters of elder abuse.

sSB 896, favorably reported by the Human Services Committee, also changes definitions related to reporting suspected elderly exploitation, training mandated reporters, and protective investigations and DSS services.

COMMITTEE ACTION

Aging Committee

Joint Favorable Substitute

Yea

13

Nay

0

(03/05/2015)