PA 17-136—sHB 7082

Judiciary Committee

AN ACT CONCERNING PROBATE COURT OPERATIONS

SUMMARY: This act makes changes to various unrelated laws that govern probate court operations. It:

1. gives probate court employees the same whistleblower protections available under existing law to employees of the state, quasi-public agencies, and large state contractors ( 1);

2. extends the specialized services of the six regional children's probate courts to probate courts not served by them under prior law ( 3-6);

3. gives the probate court jurisdiction over proceedings to liquidate structured settlements in cases that involve people under conservatorship or guardianship ( 16);

4. creates a process by which a guardian may seek authority to manage certain protected persons' finances ( 18-20);

5. amends the notice requirement in certain probate court proceedings ( 2, 10 & 11);

6. expands the list of motions, petitions, and applications that are subject to a probate court fee ( 9);

7. requires the electronic transfer of cases from one probate court to another ( 12-15); and

8. requires individuals serving on the Probate Court Administration's panel of auditors to be state licensed as certified public accountants or public accountants ( 21).

It also makes minor, technical, and conforming changes, including updating statutory references to probate court and probate judges for consistency and repealing an obsolete statute dealing with release of identifying adoption records ( 7, 8, 17, 22 & 23).

EFFECTIVE DATE: January 1, 2018, except the provisions on whistleblower protections, regional children's probate courts, and probate court notices are effective October 1, 2017.

1 — WHISTLEBLOWER PROTECTION

The act extends to probate court employees the whistleblower protections available under existing law to employees of the state, quasi-public agencies, and large state contractors.

In doing so, the act:

1. allows probate court employees to report to the state auditors any corruption, unethical practice, mismanagement, gross waste of funds, abuse of authority, or danger to public safety in the court;

2. prohibits state officers or employees from retaliating against a probate court employee who discloses such information or who testifies in or provides assistance in a whistleblower complaint;

3. allows probate court employees to file a complaint with the Commission on Human Rights and Opportunities if such retaliation takes place and amend the complaint if additional retaliation occurs;

4. protects employees from civil liability for good faith disclosures made in their reports under these provisions; and

5. subjects employees to disciplinary action, including dismissal, for knowingly and maliciously making false charges.

The act requires each probate court to post notice of whistleblower protections in a conspicuous place readily viewable by the court's employees.

By law, in whistleblower cases, the state auditors must review the information an employee discloses and report their findings and recommendations to the attorney general, who may investigate any information he receives or derives from the auditors' report.

3-6 — REGIONAL CHILDREN'S PROBATE COURTS

Funding

The act allows administrative judges for children's probate courts, if authorized by the Probate Court Budget Committee, to employ the number of employees required for the court to operate efficiently. Under prior law, judges needed the probate court administrator's approval to employ these individuals.

The law authorizes the probate court administrator to establish seven regional children's probate courts to handle children's matters (i.e., guardianship, parental rights, adoption, paternity claims, emancipation of minors, and voluntary admission matters). Six such courts operate in Hartford, Meriden, New Haven, New London, Waterbury, and Windham.

The act eliminates reimbursement for towns that establish a separate facility for these courts if they present vouchers to the probate court administrator.

Family Specialists

The act changes the job title of a “probate court officer” to “family specialist.” The law specifies various job functions for them, including (1) conducting conferences with parties, their attorneys, Department of Children and Families (DCF) representatives, and social service providers; (2) facilitating the development of family plans and visitation plans; (3) helping families access community services; and (4) filing specific reports with the court.

The act allows (1) regional children's probate courts and (2) probate courts that are not located in a region served by a regional children's probate court to employ family specialists if the Probate Court Budget Committee authorizes them to do so. Under the act, for probate courts outside a region served by a regional children's probate court, the family specialist, with the probate court judge's consent, may perform the job functions for that probate court.

16 — STRUCTURED SETTLEMENT LIQUIDATION

The act gives the probate court jurisdiction over proceedings to liquidate structured settlements in cases that involve people under conservatorship or guardianship.

Prior law allowed, with the Superior Court's approval, the recipient of a structured settlement, or such person's guardian or conservator, to transfer the right to receive periodic payments to a third party (transferee) in return for a lump sum cash payment.

Under the act, a transferee seeking to have a court-appointed conservator or guardian transfer structured settlement payment rights must apply for approval in the probate court having jurisdiction over the conservator or guardian. The act requires the court to give notice of the time and place of the hearing by first class mail to the (1) interested parties and (2) parties to the conservatorship or guardianship matter. The court must hear and decide the matter in accordance with the civil procedures for transfer of structured settlements.

18-20 — ASSET MANAGEMENT BY GUARDIANS

The act (1) allows the guardian of a person with intellectual disability (i.e., a protected person) to manage the protected person's assets if the value does not exceed $10,000 and (2) creates a process by which a guardian may seek authority to do so. Under prior law, guardians were not allowed to assist a protected person with his or her finances.

A guardian seeking to manage a protected person's assets must file a petition in the probate court that appointed him or her as a guardian. If the petition is filed simultaneously with a guardianship petition, the court may conduct one hearing on both petitions.

Hearing Notice

The court must assign a time and place for the hearing within 45 days after the petition is filed. At least seven days before the hearing, the court must direct service of notice upon the respondent by a state marshal, constable, or indifferent person. Notice must also be sent by first class mail to the (1) petitioner (i.e., guardian); (2) protected person's spouse, parents, and children; (3) protected person's siblings or their representatives, if the protected person's parents are deceased; and (4) person in charge of the facility where the protected person resides. The court in its discretion may direct notice to other persons having an interest in the protected person.

Hearing

At the hearing, the court must receive evidence of the protected person's ability to manage his or her finances, including a written report or testimony by a Department of Developmental Services assessment team.

The protected person is entitled to counsel and has the right to attend the hearing, except that the court may exclude the protected person from portions of the hearing where testimony would be seriously detrimental to his or her emotional or mental condition.

If the court finds by clear and convincing evidence that the protected person (1) has $10,000 or less in assets and (2) is “unable to manage his or her finances,” it may:

1. authorize the guardian to hold and manage all or any part of the protected person's income and assets for the person's benefit and

2. assign other specific duties to the guardian with respect to the protected person's finances.

Under the act, “unable to manage his or her finances” means the inability of a person with intellectual disability to receive and evaluate information or make or communicate decisions to such an extent that the person is unable, even with appropriate assistance, to manage his or her finances.

Probate Bond and Asset Inventory

The court may require the guardian to post a probate bond to secure the faithful performance of his or her fiduciary duties.

Unless excused by the court, the guardian must (1) file an inventory of the protected person's assets within 60 days after the date on which the decree granting authority is mailed and (2) submit periodic accounts at least once every three years and more frequently if required by the court. At the end of each three- year period there must be a hearing on all periodic accounts not previously allowed (i.e., approved) and any final accounts.

Duration of Authority

The guardian must inform the court, in writing, within 30 days after the protected person's assets first exceed $10,000. The guardian's authority to manage the protected person's finances terminates on the date on which the assets first exceed $10,000. However, the court may grant up to a 60-day extension if someone petitions it to appoint a conservator.

2, 10 & 11 — NOTICE IN CERTAIN PROCEEDINGS

Notice to Psychiatric Institutions ( 2)

Under prior law, in a probate court proceeding involving a person involuntarily confined to a Connecticut psychiatric institution, all process had to be served to the (1) confined person in person and (2) superintendent of the institution by registered or certified mail. If the institution is the party initiating the proceeding, the act allows process to be served to the superintendent of the institution by first class mail rather than by registered or certified mail.

Removal of Parent as Guardian ( 10)

By law, in probate court proceedings involving the removal of a parent as guardian of a minor child, the court must order notice of the hearing to be given to the DCF commissioner, both parents, and the child, if over age 12, within a prescribed timeframe.

Under prior law, (1) if the notice could not reasonably be delivered, the court was required to order it to be published and (2) if the parents resided out of state or were absent, the court was allowed to order the notice to be published in a newspaper that circulated at the parents' last-known residence. The act (1) allows, instead of requires, the court to publish notice if it cannot reasonably be delivered and (2) specifies that any published notice must be in a newspaper that circulates at the parents' last known address or, if that is not known, where the application was filed. This conforms with the notice provisions in other children's matters.

Involuntary Representation ( 11)

Existing law specifies the interested parties to whom the court must direct notice of a hearing in an involuntary representation case, including the respondent's children and, if none, the parents and, if none, the siblings or their representatives. The act requires the probate court judge, in such a case, to order notice to the respondent's next of kin when he or she has no children, parents, or siblings. (An “involuntary representation” is the appointment of a conservator after a court finds that person is incapable of managing his or her affairs or of caring for him or herself.)

9 — PROBATE COURT FILING FEES

The act establishes a $225 fee to file each of the following motions, petitions, or applications in a probate court:

1. with respect to a power of attorney, to (a) compel an account by an agent (i.e., attorney-in-fact), (b) review an agent's conduct, (c) construe the power of attorney, and (d) mandate acceptance of the power of attorney;

2. with respect to an adult with intellectual disability, to authorize a guardian to manage the person's finances; and

3. to approve the transfer of structured settlement payment rights.

The act also establishes a $150 fee to register an order from another state for a conservator of a person, a conservator of the estate, or both types of orders for the same person at the same time.

12-15 — CASE TRANSFER

The act requires electronic, rather than paper, transfer of files between probate courts, including files pertaining to guardianship and conservatorship matters.

Under prior law, the transferring court was required to copy, certify, and deliver all documents to the receiving court. Under the act, when a court issues an order to transfer a file, it must transmit a digital image of each document in the file, using the document management system maintained by the Office of the Probate Court Administrator. Upon receipt of the electronic documents, the receiving court assumes jurisdiction over the matter.

21 — AUDITOR ELIGIBILITY

By law, the probate court administrator must provide to the probate court a list of persons eligible to serve on the court's panel of auditors. The act eliminates the requirement for the administrator to promulgate regulations concerning the compilation of the list. It instead requires individuals on the list to be certified public accountants or public accountants licensed by the State Board of Accountancy.

The act allows the probate court administrator to establish hourly rates and allowable expenses for the auditor's compensation.