§ 45a-650 — (Formerly Sec. 45-70d). Hearing on petition for involuntary representation. Evidence. Appointment of conservator. Limitation re powers and duties. Probate bond.

Connecticut § 45a-650

• Jurisdiction: Connecticut
• Title 45a: Probate Courts and Procedure
• Ch. 802h: Protected Persons and Their Property

Text

(a) At any hearing on 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 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 , 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 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; and (9) any supportive services, technologies or other means that are available to assist the respondent in meeting his or her needs. (h) The respondent or conserved person may appoint, designate or nominate a conservator or successor conservator pursuant to section 19a-575a , 19a-580e , 19a-580g or 45a-645 , or may, orally or in writing, nominate a conservator or successor conservator who shall be appointed unless the court finds that the appointee, designee or nominee is unwilling or unable to serve or there is substantial evidence to disqualify such person. If there is no such appointment, designation or nomination or if the court does not appoint the person appointed, designated or nominated by the respondent or conserved person, the court may appoint any qualified person, authorized public official or corporation in accordance with subsections (a) and (b) of section 45a-644 . In considering whom to appoint as conservator or successor conservator, the court shall consider (1) the extent to which a proposed conservator has knowledge of the respondent's or conserved person's preferences regarding the care of his or her person or the management of his or her affairs, (2) the ability of the proposed conservator to carry out the duties, responsibilities and powers of a conservator, (3) the cost of the proposed conservatorship to the estate of the respondent or conserved person, (4) the proposed conservator's commitment to promoting the respondent's or conserved person's welfare and independence, and (5) any existing or potential conflicts of interest of the proposed conservator. (i) If the court appoints a conservator of the estate of the respondent, the court shall require a probate bond. The court may, if it considers it necessary for the protection of the respondent, require a bond of any conservator of the person appointed under this section. (j) Absent the court's order to the contrary and except as otherwise provided in subsection (b) of section 19a-580e , a conservator appointed pursuant to this section shall be bound by all health care decisions properly made by the conserved person's health care representative. (k) In assigning the duties of a conservator under this section the court may, in accordance with section 1-350g , limit, suspend or terminate the authority of an agent designated by the conserved person to act under a power of attorney; and the court shall enter a specific order as to whether the authority of the agent is limited, suspended or terminated. (l) Except as provided in subsection (k) of this section, a conserved person and his agent under a power of attorney shall retain all rights and authority not expressly assigned to the conservator. (m) The court shall assign to a conservator appointed under this section only the duties and authority that are the least restrictive means of intervention necessary to meet the needs of the conserved person. The court shall find by clear and convincing evidence that such duties and authority restrict the decision-making authority of the conserved person only to the extent necessary to provide for the personal needs or property management of the conserved person. Such personal needs and property management shall be provided in a manner appropriate to the conserved person. The court shall make a finding of the clear and convincing evidence that supports the need for each duty and authority assigned to the conservator. (n) Nothing in this chapter shall impair, limit or diminish a conserved person's right to retain an attorney to represent such person or to seek redress of grievances in any court or administrative agency, including proceedings in the nature of habeas corpus arising out of any limitations imposed on the conserved person by court action taken under this chapter, chapter 319i, chapter 319j or section 45a-242 . In any other proceeding in which the conservator has retained counsel for the conserved person, the conserved person may request the court to direct the conservator to substitute an attorney chosen by the conserved person. See Sec. 45a-656 re duties and authority assigned by the court. See Sec. 52-60 re appointment of probate judge as attorney for nonresident fiduciary.

Legislative History

(P.A. 77-446, S. 4; P.A. 80-227, S. 8, 24; 80-476, S. 129; P.A. 84-271, S. 5; P.A. 97-90, S. 4; P.A. 98-219, S. 17; P.A. 01-209, S. 6, 7; P.A. 04-142, S. 3; P.A. 06-195, S. 76; P.A. 07-116, S. 16; June 12 Sp. Sess. P.A. 12-2, S. 76; P.A. 14-103, S. 6, 13; 14-121, S. 1; P.A. 15-240, S. 49; P.A. 16-40, S. 9; 16-193, S. 21; P.A. 18-45, S. 20.) History: P.A. 80-227 substituted “probate bond” for “bond ... in such amount as it deems necessary to protect the estate of the respondent”, effective July 1, 1981; P.A. 80-476 divided section into Subsecs. and reworded provisions; P.A. 84-271 amended Subsec. (a) by authorizing the court to consider such other evidence as may be available and relevant including a summary of the physical and social functioning level or ability of the respondent and the availability of support services, and providing such evidence may include reports from certain agencies and professionals in the social work and public health field; Sec. 45-70d transferred to Sec. 45a-650 in 1991; P.A. 97-90 amended Subsec. (c) to permit court not to appoint conservator if it appears that person or affairs of person are being cared for properly without appointment of conservator and to make technical changes, and amended Subsec. (d) re considerations in making determination of whether to appoint conservator; P.A. 98-219 added Subsec. (g) re limitation of powers and duties of conservator of the person or conservator of the estate; P.A. 01-209 amended Subsec. (a) to add provisions re examination by independent physician, psychologist or psychiatrist in matter in which Commissioner of Social Services seeks appointment of conservator, effective July 1, 2001; P.A. 04-142 amended Subsec. (a) by adding provision re confidentiality of medical report filed with the court, added new Subsec. (b) re court order for disclosure of required medical information, redesignated existing Subsecs. (b) to (g) as new Subsecs. (c) to (h), respectively, and made technical changes; P.A. 06-195 substituted “health care representative” for “health care agent” in Subsec. (h); P.A. 07-116 inserted provisions in Subsec. (a) re requirements before court receives evidence and respondent's right to attend any hearing under section, inserted new Subsec. (b) re applicable rules of evidence, designated as new Subsec. (c) existing provisions re court's receipt of evidence re capacity of respondent, and amended same to substitute 45 days for 30 days re physician examination preceding hearing, substitute reference to respondent's condition and respondent's ability to care for self or manage affairs for reference to respondent's “disability and the extent of its incapacitating effect”, and delete provisions re matters where Commissioner of Social Services seeks appointment of conservator for an elderly person, redesignated existing Subsec. (b) as Subsec. (d) and inserted provisions therein re disclosure of medical information, redesignated existing Subsec. (c) as (e) and amended same to delete “within the state” re place of hearing, redesignated existing Subsec. (d) as Subsec. (f) and inserted provisions therein re court's findings, redesignated existing Subsec. (e) as Subsec. (g) and amended same to substitute enumerated factors for consideration of best interest of respondent and prior alternative arrangements, inserted Subsec. (h) designator and added provisions therein re respondent's ability to nominate conservator and court's appointment of conservator, deleted former Subsec. (f) re court's findings of facts to be furnished upon request, redesignated existing Subsec. (g) as Subsec. (i), deleted former Subsec. (h) re limitation on powers and duties of conservator, added new Subsecs. (j) to (m) re limitations on powers of conservators and retention of rights of conserved person, and made technical changes; June 12 Sp. Sess. P.A. 12-2 made a technical change in Subsec. (h); P.A. 14-103 amended Subsec. (b) to make technical changes and amended Subsec. (h) to add references to successor conservator and add reference to Sec. 19a-575a; P.A. 14-121 amended Subsec. (c) to insert Subdiv. (1) to (3) designators and add provisions re introduction of psychological evidence for person with intellectual disability, amended Subsec. (d) to add provision re disclosure of psychological information submitted, and made technical changes; P.A. 15-240 amended Subsec. (f)(3) by adding “the provisions of sections 1-350g and 1-352, or” and by deleting “1-43,”, added new Subsec. (k) re authority of court in assigning duties of conservator, redesignated existing Subsecs. (k) to (m) as Subsecs. (l) to (n) and amended redesignated Subsec. (l) by adding provisions re agent under power of attorney retains rights and authority not expressly assigned to conservator, except as provided in Subsec. (k), effective July 1, 2016; P.A. 16-40 changed effective date of P.A. 15-240, S. 49, from July 1, 2016, to October 1, 2016, effective May 27, 2016; P.A. 16-193 made a technical change in Subsec. (n); P.A. 18-45 amended Subsecs. (a), (c)(2) and (e) by replacing references to application with references to petition. Cited. 230 C. 828; 233 C. 44. Under 2005 revision, Probate Court does not have statutory authority to issue injunctive orders to third parties to carry out its decisions on behalf of a conserved person; probate bond requirement for conservators evinces a legislative policy that conservators are not entitled to quasi-judicial immunity for acts that are not authorized or approved by the Probate Court. 304 C. 234. Statutory factors in Subsec. (h) wholly supplant any consideration of the “best interests” of a respondent in conservatorship proceedings; respondent's best interests are neither a factor nor an overarching guide in selecting a conservator. 320 C. 178. Cited. 37 CA 137; 42 CA 70. A conservator may bring a civil action for dissolution of marriage on behalf of a conserved person. 128 CA 259. Probate Court is required to hear evidence on the record concerning a person's suitability and qualifications to be appointed a neutral third party conservator; such requirement is consistent with legislature's goal to establish transparency and accountability in probate proceedings. 130 CA 243. Evidence in adjudication to appoint conservator need not be limited to the specific factual inquiries set forth in Subsec. (h). 151 CA 403; judgment affirmed, see 320 C. 178. Cited. 44 CS 53.