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General Assembly

 

Substitute Bill No. 5361

    February Session, 2016

 

*_____HB05361AGE___030916____*

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

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

Section 1. (NEW) (Effective July 1, 2016) (a) For purposes of this section and section 2 of this act, (1) "conserved person" means a person eighteen years of age and older for whom a conservator of the person has been appointed pursuant to section 45a-646, 45a-648 to 45a-651, inclusive, or 45a-654 of the general statutes, (2) "conservator" means a conservator of the person appointed pursuant to section 45a-646, 45a-648 to 45a-651, inclusive, or 45a-654 of the general statutes, (3) "court" means a probate court with jurisdiction over a conservatorship of a conserved person, and (4) "interact", "interaction" or "interacting with" means communication by telephone, mail or in person.

(b) A conserved person, whether or not such person has voluntary or involuntary representation of a conservator, has a fundamental right of free association. Unless specifically authorized by an order from a court pursuant to this section, a conservator shall not restrict a conserved person's right to interact with other persons, including, but not limited to, the conserved person's children, siblings, parents, or other close relatives or friends. If a conserved person is unable to express consent to interact with other persons due to a mental, emotional or physical condition, then consent of the conserved person may be presumed based on the conserved person's prior relationship with such other persons unless the conserved person has previously documented his or her wishes not to interact with the person seeking access to him or her.

(c) A conservator who knowingly prevents or attempts to prevent interaction with a conserved person in violation of subsection (b) of this section, or any court order issued pursuant to this section, is subject to removal and replacement by the court.

(d) Notwithstanding the provisions of subsection (b) of this section, a conservator may petition the Probate Court that appointed the conservator to order restrictions placed on a conserved person's ability to interact with a person seeking access to him or her. The conservator shall show by clear and convincing evidence that there is good cause for such restrictions. In determining good cause, the court shall consider all relevant factors, including, but not limited to:

(1) Whether any protective orders have been issued to prevent the person or persons seeking access to the conserved person from interacting with him or her;

(2) Whether the person seeking access to the conserved person has been found by competent authority to have abused, neglected or financially exploited the conserved person or the conservator can show by a preponderance of evidence that such person has abused, neglected or exploited the conserved person or is likely to abuse, neglect or exploit the conserved person;

(3) If the conserved person is unable to communicate, whether such person has stated that he or she does not want to interact with the person seeking access to him or her in documents including, but not limited to, a properly executed living will, durable power of attorney or advance directive;

(4) If the conserved person resides in a skilled nursing facility, residential care home or other facility subject to the provisions of section 19a-550 of the general statutes, whether interaction with the person seeking access to the conserved person is medically contraindicated as documented by the patient's physician pursuant to subsection (b) of section 19a-550 of the general statutes; and

(5) Any other information the court deems relevant.

(e) If the court finds by clear and convincing evidence that restrictions must be placed on the conserved person's right to interact with others pursuant to subsection (d) of this section, the court shall order only such restrictions that are the least restrictive means of intervention necessary to meet the needs of the conserved person and shall expressly state that the conserved person shall retain all rights and authority not expressly limited by the order. The court shall also consider:

(1) Whether the conserved person expresses or has expressed a desire to interact with the person seeking access to him or her;

(2) Placing reasonable time, place and manner restrictions on interaction between the conserved person and the person seeking access to him or her based on the history of their relationship, the conserved person's wishes or both; and

(3) Requiring that interaction between the conserved person and the person seeking access to him or her be supervised.

(f) If any interested person, including the conserved person, reasonably believes that provisions of this section have been violated, then such person may move 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 conserved person in accordance with subsections (d) and (e) of this section;

(3) Modify the conservator's duties; or

(4) Remove and replace the conservator.

(g) Except as provided in subsection (h) of this section, a court shall schedule a hearing on a petition or motion filed pursuant to subsection (d) or (f) of this section not later than thirty days after the date the petition or motion is filed. The court may, in its discretion, order mediation to be conducted prior to the hearing. Any mediation shall include the conserved person, the person seeking access to the conserved person and the mediator. If mediation results in agreement regarding interaction with the conserved person, such agreement shall be approved by the court.

(h) If a petition or motion filed pursuant to this section states that the conserved person's health is in significant decline or that the conserved person's death may be imminent, a court shall conduct an emergency hearing as soon as practicable, but not later than ten days after the petition or motion is filed. Upon request, the court may order that supervised interaction between the conserved person and persons seeking access to the conserved person be granted during the period prior to the hearing.

(i) Notice of the hearing, a copy of the petition or motion and a copy of any order issued pursuant to this section shall be sent by certified mail, return receipt requested, to the conserved person and any person named in the motion. Nothing in this section shall be construed as affecting the conserved person's right to appear and be heard in the proceedings.

(j) A conserved person subject to involuntary representation shall have the right to be represented by an attorney in accordance with the provisions of section 45a-649a of the general statutes, in all proceedings under this section.

(k) A court, upon its own motion or a motion filed with the court, may impose an appropriate sanction, including, but not limited to, an order to pay court costs and reasonable attorneys' fees, upon a conservator who knowingly has violated any provision of this section or an order issued by the court pursuant to this section. No monetary sanction may be paid out of the conserved person's estate.

Sec. 2. (NEW) (Effective July 1, 2016) (a) Except as provided in subsections (b) and (c) of this section, a conservator shall notify, as soon as is reasonably possible, a conserved person's closest relatives, including, but not limited to, children and siblings, and any other person designated by the conserved person to be notified, in the event that:

(1) The conserved person's residence has changed;

(2) The conserved person is staying at a location other than the conserved person's residence;

(3) The conserved person is admitted to a medical facility for emergency care in response to a life-threatening injury or medical condition or for acute care; or

(4) The conserved person dies. In the case of the conserved person's death, the conservator shall make a good faith effort to contact such relatives or designated persons in person or by telephone.

(b) A conservator is not required to provide notice in accordance with subsection (a) of this section if:

(1) A person who is entitled to notice under subsection (a) of this section informs the conservator in writing that such person does not wish to receive such notice; or

(2) The conserved person or a court order has expressly prohibited the conservator from providing notice to such person.

(c) A conservator shall not provide contact information for a conserved person to any person who is the subject of an order of protection or a restraining order issued on behalf of the conserved person.

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

Section 1

July 1, 2016

New section

Sec. 2

July 1, 2016

New section

Statement of Legislative Commissioners:

In Section 1(d)(2), "has or is likely to abuse, neglect or exploit the conserved person" was changed to "has abused, neglected or exploited the conserved person or is likely to abuse, neglect or exploit the conserved person" for clarity; in Section 1(d)(4), "subject to section 19a-550" was changed to "subject to the provisions of section 19a-550" for clarity; and in Section 1(g), (h) and (i), "motion" was changed to "petition or motion" for internal consistency.

AGE

Joint Favorable Subst.