OLR Bill Analysis

sHB 5361

AN ACT CONCERNING A CONSERVED PERSON'S RIGHT TO INTERACT WITH OTHERS.

SUMMARY:

This bill (1) prohibits a conservator of the person (hereafter referred to as “conservator”) from restricting a conserved person's right to interact with other people, including his or her children, siblings, parents, and close relatives and friends, unless specifically authorized by the probate court and (2) creates a process to remove or sanction conservators who restrict such interactions in violation of the bill. The bill defines “interact” as communication by phone, mail, or in person.

The bill also requires a conservator to notify, as soon as reasonably possible, a conserved person's closest relatives if the protected person (1) changes residence, (2) stays at a location other than his or her residence, (3) is admitted to a medical care facility for acute care or for emergency care of a life-threatening injury or medical condition, or (4) dies.

By law, a conservator of the person is a person, including a municipal or state official, or a private profit or nonprofit corporation, except a hospital or nursing home facility, appointed by the probate court to supervise the personal affairs of a person (1) found to be incapable of caring for himself or herself or (2) who voluntarily asks for a conservator. A conserved person is an adult for whom a conservator is appointed.

EFFECTIVE DATE: July 1, 2016

INTERACTION WITH CONSERVED PERSONS

Right to Free Association

The bill specifies that a conserved person, regardless of voluntary or involuntary representation by a conservator, has a fundamental right to free association. Unless specifically authorized by a court order, the bill prohibits a conservator from restricting this right.

Conserved Person's Consent

The bill allows, if the conserved person is unable to consent to an interaction due to a mental, emotional, or physical condition, for consent to the interaction to be presumed based on the conserved person's prior relationships. However, consent may not be presumed when the conserved person previously documented his or her wishes to avoid interactions with specific people.

Restricting Access to Conserved Persons

The bill authorizes a conservator to petition the probate court to restrict a conserved person's ability to interact with certain people. The conservator must show, by clear and convincing evidence, that there is good cause for such restrictions. In determining good cause, the bill requires the court to consider all relevant factors including the following:

1. whether protective orders have been issued to prevent access to the conserved person;

2. whether the person seeking access to the conserved person has been found by a competent authority to have abused, neglected, or financially exploited him or her, or the conservator can show by a preponderance of evidence that the person has or is likely to;

3. if the conserved person is unable to communicate, whether he or she stated in documents, such as a living will, durable power of attorney, or advanced directive that he or she does not want to interact with the person;

4. if the conserved person resides in a skilled nursing facility, residential care home, or chronic disease hospital, whether interaction with the person is medically contraindicated by his or her physician pursuant to the Connecticut's Patient Bill of Rights; and

5. any other information the court deems relevant.

The bill allows the court, after a finding of clear and convincing evidence, to restrict a conserved person's right to interact with others. In such a case, it must (1) order the least restrictive means necessary to meet the conserved person's needs and (2) state that he or she retains all rights and authority not expressly limited by the order.

The court must also consider:

1. whether the conserved person wants to interact with the person seeking access;

2. reasonably restricting the time, place, and manner of the interaction, based on the history of the relationship, the conserved person's wishes, or both; and

3. requiring supervised interactions.

Contesting Restricted Access to Conserved Persons

The bill allows any interested person, including the conserved person, who reasonably believes the bill has been violated to contest access restrictions. Specifically, any interested person may ask the court to (1) require the conservator to grant a person access to the conserved person; (2) restrict, or further restrict, a person's access to the protected person; (3) modify the conservator's duties; or (4) remove and replace the conservator.

Court Hearings

The bill requires the court to schedule a hearing within 30 days of the filing of a motion or petition to restrict access or contest restricted access. The court must conduct an emergency hearing if the conserved person's health is in significant decline or death may be imminent. Emergency hearings must be conducted as soon as practicable, and within 10 days of the filing. Upon request, the court may order supervised interaction during the period before the hearing.

The court may, in its discretion, order mediation before the hearing. Under the bill, mediation must include the conserved person, person seeking access, and mediator. The court must approve any agreement reached through mediation.

Notice of the hearing, a copy of the relevant petition or motion, and a copy of any order must be sent by certified mail, return receipt requested, to the conserved person and any person named in the motion. (The bill does not specify who must send these documents.) Probate court statutes and rules currently require the court to contact certain individuals when it holds a hearing, including anyone designated as an interested party when the conservatorship was initially established.

The bill specifies that (1) a conserved person subject to involuntary representation has the right to be represented by an attorney in accordance with state law and (2) nothing may be construed to affect the conserved person's right to appear and be heard in the proceedings.

Penalty

The court may remove or replace a conservator who knowingly prevents or attempts to prevent interaction with a conserved person or violates any related court order. The court may also, upon its own or a motion filed with the court, appropriately sanction a conservator who knowingly violates the bill or a court order. Under the bill, sanctions may include an order to pay court costs and reasonable attorney's fees. However, the bill prohibits any monetary sanction from being paid out of the conserved person's estate.

REQUIRED NOTIFICATION OF CLOSE RELATIVES

The bill also requires a conservator to notify, as soon as is reasonably possible, a conserved person's closest relatives if the person (1) changes residence, (2) stays at a location other than his or her residence, or (3) is admitted to a medical facility for acute care or emergency care of a life-threatening injury or medical condition. The bill specifies that a conserved person's closest relatives include his or her children, siblings, and any other person he or she designated to be notified.

The conservator must also notify the conserved person's closest relatives of the conserved person's death. In such a case, the conservator must make a good faith effort to contact the closest relatives in person or by phone.

Probate court rules currently require the court to contact certain individuals when the conservator applies to change a conserved person's residence, including anyone designated as an interested party when the conservatorship was initially established.

The bill exempts conservators from the notice requirement if (1) a person otherwise entitled to notice informs the conservator in writing that he or she no longer wishes to be notified or (2) the conserved person or a court order expressly prohibits notice to such persons. The bill prohibits the conservator from providing the conserved person's contact information to any person who is the subject of a protection or restraining order issued on behalf of the conserved person.

COMMITTEE ACTION

Aging Committee

Joint Favorable Substitute

Yea

13

Nay

0

(03/08/2016)