SB 247 — AN ACT CONCERNING PROBATE COURT OPERATIONS.

General Assembly   RaisedSubstitute Bill No.

247 February Session, 2018   LCO*_____SB00247JUD___032918____* No.AN ACT CONCERNING PROBATE COURT OPERATIONS.

1646   *01646_______JUD* Referred to Committee on JUDICIARY   Introduced by:

  (JUD)   AN ACT CONCERNING PROBATE COURT OPERATIONS.

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The temporary conservator shall have charge of the property or of the person of the conserved person, or both, for such period or for such specific occasion as the court finds to be necessary, provided a temporary appointment shall not be valid for more than thirty days, unless at any time while the appointment of a temporary conservator is in effect, [an application] a petition is filed for appointment of a conservator of the person or estate under section 45a-650.45a-650, as amended by this act.

The court may (A) extend the appointment of the temporary conservator until the disposition of such [application] petition under section 45a-650, as amended by this act, or for an additional thirty days, whichever occurs first, or (B) terminate the appointment of a temporary conservator upon a showing that the circumstances that gave rise to the [application] petition for appointment of a temporary conservator no longer exist.

(c) Upon receipt of [an application] a petition for the appointment of a temporary conservator, the court shall issue notice to the respondent, appoint counsel for the respondent and conduct a hearing on the [application] petition in the manner set forth in sections 45a-649, 45a-649a and 45a-650, as amended by this act, except that (1) notice to the respondent shall be given not less than five days before the hearing, which shall be conducted not later than seven days after the [application] petition is filed, excluding Saturdays, Sundays and holidays, or (2) where [an application] a petition has been made ex parte for the appointment of a temporary conservator, notice shall be given to the respondent not more than forty-eight hours after the ex parte appointment of a temporary conservator, with the hearing on such ex parte appointment to be conducted not later than three days after the ex parte appointment, excluding Saturdays, Sundays and holidays.

(a) An executor, administrator, conservator, guardian [, trustee in insolvency] or trustee appointed, or whose appointment has been approved, by a [court of probate] Probate Court, may apply in writing to the [court of probate] Probate Court having jurisdiction of his or her trust for an order authorizing him[him] the applicant to submit the matter in controversy to the arbitration of persons who are mutually agreed upon by the applicant and the other party to any matter in controversy which is described in [subsections (a) and] this subsection or subsection (b) of this section, if:

(1) He[He] The applicant has any claim in his[his] the applicant's capacity as such fiduciary, or on behalf of the interest which he or she represents, against any person or to any property;

or (2) any person has any claim against or to any property which is in his[his] the applicant's control in his[his] the applicant's capacity as such fiduciary.

Section 45a-650 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2018):

(a) At any hearing on [an application] a petition for involuntary representation, before the court receives any evidence regarding the condition of the respondent or of the respondent's affairs, the court shall require clear and convincing evidence that the court has jurisdiction, that the respondent has been given notice as required in section 45a-649, and that the respondent has been advised of the right to retain an attorney pursuant to section 45a-649a and is either represented by an attorney or has waived the right to be represented by an attorney.

The respondent shall have the right to attend any hearing held under this section.

(b) The rules of evidence applicable to civil matters in the Superior Court shall apply to all hearings pursuant to this section.

All testimony at a hearing held pursuant to this section shall be given under oath or affirmation.

(c) (1) After making the findings required under subsection (a) of this section, the court shall receive evidence regarding the respondent's condition, the capacity of the respondent to care for himself or herself or to manage his or her affairs, and the ability of the respondent to meet his or her needs without the appointment of a conservator.

Unless waived by the court pursuant to subdivision (2) of this subsection, medical evidence shall be introduced from one or more physicians licensed to practice medicine in this state who have examined the respondent not more than forty-five days prior to the hearing, except that for a person with intellectual disability, as defined in section 1-1g, psychological evidence may be introduced in lieu of such medical evidence from a psychologist licensed pursuant to chapter 383 who has examined the respondent not more than forty-five days prior to the hearing.

The evidence shall contain specific information regarding the respondent's condition and the effect of the respondent's condition on the respondent's ability to care for himself or herself or to manage his or her affairs.

The court may also consider such other evidence as may be available and relevant, including, but not limited to, a summary of the physical and social functioning level or ability of the respondent, and the availability of support services from the family, neighbors, community or any other appropriate source.

Such evidence may include, if available, reports from the social work service of a general hospital, municipal social worker, director of social service, public health nurse, public health agency, psychologist, coordinating assessment and monitoring agencies, or such other persons as the court considers qualified to provide such evidence.

(2) The court may waive the requirement that medical evidence be presented if it is shown that the evidence is impossible to obtain because of the absence of the respondent or the respondent's refusal to be examined by a physician or that the alleged incapacity is not medical in nature.

If such requirement is waived, the court shall make a specific finding in any decree issued on the [application] petition stating why medical evidence was not required.

(3) Any hospital, psychiatric, psychological or medical record or report filed with the court pursuant to this subsection shall be confidential.

(d) Upon the filing of an application for involuntary representation pursuant to section 45a-648, as amended by this act, the court shall issue an order for the disclosure of the medical information required pursuant to this section and any psychological information submitted with respect to a person with intellectual disability pursuant to subsection (c) of this section to the respondent's attorney and, upon request, to the respondent.

The court may issue an order for the disclosure of such information to any other person as the court determines necessary.

(e) Notwithstanding the provisions of section 45a-7, the court may hold the hearing on the [application] petition at a place other than its usual courtroom if it would facilitate attendance by the respondent.

(f) (1) If the court finds by clear and convincing evidence that the respondent is incapable of managing the respondent's affairs, that the respondent's affairs cannot be managed adequately without the appointment of a conservator and that the appointment of a conservator is the least restrictive means of intervention available to assist the respondent in managing the respondent's affairs, the court may appoint a conservator of his or her estate after considering the factors set forth in subsection (g) of this section.

(2) If the court finds by clear and convincing evidence that the respondent is incapable of caring for himself or herself, that the respondent cannot be cared for adequately without the appointment of a conservator and that the appointment of a conservator is the least restrictive means of intervention available to assist the respondent in caring for himself or herself, the court may appoint a conservator of his or her person after considering the factors set forth in subsection (g) of this section.

(3) No conservator may be appointed if the respondent's personal needs and property management are being met adequately by an agency or individual appointed pursuant to the provisions of sections 1-350g and 1-352, or section 19a-575a, 19a-577, 19a-580e or 19a-580g.

(g) When determining whether a conservator should be appointed the court shall consider the following factors:

(1) The abilities of the respondent;

(2) the respondent's capacity to understand and articulate an informed preference regarding the care of his or her person or the management of his or her affairs;

(3) any relevant and material information obtained from the respondent;

(4) evidence of the respondent's past preferences and life style choices;

(5) the respondent's cultural background;

(6) the desirability of maintaining continuity in the respondent's life and environment;

(7) whether the respondent had previously made adequate alternative arrangements for the care of his or her person or for the management of his or her affairs, including, but not limited to, the execution of a durable power of attorney, springing power of attorney, the appointment of a health care representative or health care agent, the execution of a living will or trust or the execution of any other similar document;

(8) any relevant and material evidence from the respondent's family and any other person regarding the respondent's past practices and preferences;