PA 17-91—sSB 884

Judiciary Committee

AN ACT ADOPTING THE CONNECTICUT UNIFORM RECOGNITION OF SUBSTITUTE DECISION-MAKING DOCUMENTS ACT AND REVISING THE CONNECTICUT UNIFORM POWER OF ATTORNEY ACT

SUMMARY: This act establishes the “Connecticut Uniform Recognition of Substitute Decision-Making Documents Act” and makes it applicable to any substitute decision-making document created before, on, or after October 1, 2017.

Under the act, a “substitute decision-making document” is a record created by an individual to authorize a decision maker to act for the individual with respect to property, health, or personal care.

The act:

1. establishes the conditions under which a substitute decision-making document executed out-of-state may be considered valid in Connecticut;

2. specifies which law to apply when determining the meaning and effect of such a document and the authority of the decision maker;

3. allows a person to (a) accept a substitute decision-making document in good faith and (b) make specific requests, such as asking for an English translation of the document;

4. requires a person to accept a purportedly valid document within a reasonable time, except under specified circumstances; and

5. establishes penalties and available remedies for violations.

The act revises the Uniform Power of Attorney Act (UPOA) by (1) allowing the use of forms substantially similar to the statutory forms; (2) broadening the list of activities that require a power of attorney's specific grant of authority; and (3) revising the statutory forms, including adding provisions for digital devices, digital assets, user accounts, electronically stored information, and intellectual property.

It also (1) requires the probate court, under certain circumstances, to reinstate an agent's authority under a power of attorney that was previously limited or suspended because of a conservatorship and (2) allows banks and credit unions to charge certain fees for disclosing a customer's digital assets.

The act also makes minor and technical changes.

EFFECTIVE DATE: July 1, 2017, except for the substitute decision-making provisions, which are effective October 1, 2017 and applicable to any document created before, on, or after that date.

1-10 — UNIFORM SUBSTITUTE DECISION-MAKING DOCUMENTS ACT

Applicable Law ( 2-4)

Property. Under the act, a substitute decision-making document for property executed out-of-state is valid in Connecticut if, when the document was executed, the execution complied with the law of the relevant jurisdiction. The “relevant jurisdiction” is the jurisdiction indicated in the document or, if no jurisdiction is indicated, the law of the jurisdiction in which the document was executed.

“Property” means anything that may be owned, whether real, personal, legal, or equitable, or any associated interest or right.

Health or Personal Care. Under the act, a substitute decision-making document for health or personal care, including the appointment of a health care representative that is executed out-of-state is valid in Connecticut if, at the time the document was executed, the execution complied with Connecticut law or the law of the relevant jurisdiction.

“Health care” means a service or procedure to maintain, diagnose, treat, or otherwise affect an individual's physical or mental condition.

“Personal care” means an arrangement or service to provide an individual with shelter, food, clothing, transportation, education, recreation, social contact, or assistance with daily living activities.

Meaning, Effect, and Authority. Under the act, a substitute decision-making document's meaning and effect and the decision maker's authority are determined by the law of the relevant jurisdiction.

Under the act, except as otherwise provided by law, a photocopy or electronically transmitted copy of an original substitute decision-making document has the same effect as the original.

A “decision maker” is a person authorized to act for an individual under a substitute decision-making document, whether classified as a decision maker, agent, attorney-in-fact, proxy, representative, or a person with another title. A decision maker includes an original decision maker, a co-decision maker, a successor decision maker, and a person to whom or which a decision maker's authority is delegated.

“Person” means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency or instrumentality, or other legal entity.

Document Acceptance ( 5 & 6)

Good Faith Acceptance. Under the act, except as provided under laws that govern a power of attorney, health care proxy, and health care representative, a person who accepts a substitute decision-making document in good faith (i.e., honesty in fact) without actual knowledge that the document or the purported decision maker's authority is void, invalid, or terminated, may assume that the document and the decision maker's authority are genuine, valid, and still in effect.

Permitted Requests. The act allows a person asked to accept a substitute decision-making document to request and, without further investigation, rely on:

1. the decision maker's assertion of a fact about the document, the decision maker, or the individual for whom a decision will be made;

2. a translation of the document if the document contains language other than English; and

3. a legal opinion on any matter of law concerning the document if the person provides in a record the reason for the request.

Under the act, “record” means information inscribed on a tangible medium or stored in an electronic or other medium and retrievable in perceivable form.

Reasonable Response Time. With some exceptions, the act requires a person asked to accept a substitute decision-making document to accept it within a reasonable time if it purportedly meets the act's validity requirements. The act prohibits anyone from requiring an additional or different form of document as the source of any authority the substitute decision making document grants.

A person may refuse to accept a substitute decision-making document if the person:

1. does so in compliance with UPOA;

2. would otherwise not be required in the same circumstances to act if asked by the individual who executed the document;

3. knows the decision maker's authority or the document has been terminated;

4. asked for the decision maker's assertion of fact, a translation, or a legal opinion and was refused;

5. believes in good faith that the document is not valid or the decision maker does not have the authority to request a particular transaction or action; or

6. makes, or knows that another person has made, a report to an agency responsible for investigating allegations of abuse, neglect, exploitation, or abandonment stating a belief that the individual for whom a decision will be made may be subject to abuse, neglect, exploitation, or abandonment by the decision maker or a person acting for or with the decision maker.

Penalties for Violations and Available Remedies ( 6 & 7)

A person that refuses to accept a substitute decision-making document in violation of the act is subject to (1) a court order mandating its acceptance and (2) liability for reasonable attorney's fees and costs incurred in an action or proceeding that mandates such acceptance.

The act's remedies are not exclusive and do not abrogate any right or remedy under any other Connecticut law.

Effect on Other Laws ( 8 & 9)

The act specifies that persons applying and construing its provisions must consider the need to promote uniformity among the states regarding this subject area.

It also specifies that its provisions modify, limit, or supersede the federal Electronic Signatures in Global and National Commerce Act (ESIGN), except for the consumer disclosure requirements (15 U.S.C. 7001, et seq.; see BACKGROUND). The act does not authorize the electronic delivery of the notices described under ESIGN, such as court orders, notices, or official documents (15 U.S.C. 7003(b)).

11 — AGENT'S AUTHORITY UNDER UPOA

By law, an agent under a power of attorney may perform certain activities on behalf of the principal or with the principal's property only if the power of attorney expressly grants the agent this authority and if doing so is not otherwise prohibited.

Digital Device, Digital Asset, User Account, and Electronically Stored Information

The act requires an express grant of authority before an agent may exercise any power the principal may have over any of the principal's digital devices, digital assets, user accounts, or electronically stored information, including any user account and digital asset that currently exists or may exist as technology develops. This applies to such device, asset, account, or information in the principal's name or that the principal owns or lawfully uses jointly with another individual. The powers include, as the agent determines necessary or advisable:

1. changing and circumventing the principal's user name and password to gain access to such user accounts and information;

2. transferring or withdrawing funds or other assets among or from such user accounts; and

3. opening new user accounts in the principal's name.

Under the act, the principal may give his or her lawful consent and authorize the agent to access, manage, control, delete, and terminate any electronically stored information and communications of the principal to the extent fully allowable under federal, state, or international privacy laws; the Connecticut Uniform Fiduciary Access to Digital Assets Act; or other laws.

The agent is authorized to take any actions the principal may take under all applicable terms of service, terms of use, licensing, and other account agreements or laws. To the extent a specific reference to any federal, state, local, or international law is required to give effect to these provisions, the principal may provide that he or she intends to refer to such law, whether it exists, comes into existence, or is amended after the power of attorney is executed.

Intellectual Property

The act requires an express grant of authority before an agent may act as if he or she is the owner of the principal's intellectual property interests, including copyrights, contracts for payments of royalties, and trademarks. These actions include the exercise of all powers with respect to intellectual property that the principal could exercise if present, including:

1. registering and transferring ownership;

2. recording documents to effectuate or memorialize such transfer;

3. granting and revoking licenses;

4. entering, terminating, and enforcing agreements;

5. defending ownership; and

6. conferring agency upon professionals to represent the principal's interests before governmental agencies.

Limitation on an Agent's General Authority

The act prohibits all agents, unless authorized by a power of attorney, from exercising authority to create in the agent, or a dependent of the agent, an interest in the principal's property, whether by gift, right of survivorship, beneficiary designation, disclaimer, or otherwise. Prior law prohibited only agents who were not ancestors, spouses, or descendants of the principal from such actions.

12 — UPOA STATUTORY FORMS

The act allows the use of a document substantially similar to either the statutory “short form” or “long form” to create a statutory power of attorney that has the meaning and effect prescribed under UPOA. The law specifies that UPOA must not be construed to bar the use of any other or different form of power of attorney desired by the parties concerned.

The act revises both statutory forms and in so doing, broadens the list of powers the documents may grant or deny. Specifically, the act adds language to both forms that:

1. reflect the change to the limitation on an agent's general authority described above,

2. allow the designation of a conservator of the principal's estate, and

3. direct whether a bond for the conservator, including sureties, is required.

The act further broadens the specific actions an agent may perform by adding, to the statutory long form, language by which a power of attorney may grant an agent authority over the person's (1) digital devices, digital assets, user accounts, and electronically stored information and (2) intellectual property. It also adds language to the “notice” section of the long form that expressly states that any person or entity that is authorized by statute may apply to the probate court for an accounting.

13 — TERMINATION OF CONSERVATORSHIP

By law, a conserved person may petition the probate court to terminate a conservatorship. Existing law requires the probate court to terminate the conservatorship of the estate if, after notice and a hearing, the court finds that the conserved person is capable of managing his or her own affairs. Prior law allowed the court to reinstate the authority of any agent under a power of attorney that the court previously limited or suspended because of the conservatorship. The act instead requires the court to reinstate the agent's authority unless it finds that doing so is not in the conserved person's best interest.

14 — FEES FOR DISCLOSING DIGITAL ASSETS

By law, a “custodian” of digital assets is the person that carries, maintains, processes, receives, or stores a user's digital assets. The law allows a custodian, at its discretion, to assess a reasonable administrative charge for the cost of disclosing such assets. Under the act, a custodian that is a financial institution (i.e., bank or credit union) may charge a fee for doing so consistent with the terms of its deposit agreement with a customer.

BACKGROUND

ESIGN Act

The federal ESIGN Act (P. L. 106–229) provides that a contract or signature may not be denied legal effect, validity, or enforceability solely because it is in electronic form. A state statute, regulation, or other rule of law may modify, limit, or supersede ESIGNʼs provisions. It generally does not apply to a contract or other record that governs the creation and execution of wills, codicils, or testamentary trusts.