I. Milton Widem, Chairman
William R. Breetz
Judge H. Maria Cone
Representative Robert Farr
Jon P. Fitzgerald
Robert W. Grant
Representative Michael P. Lawlor
Michael W. Lyons
Representative Arthur J. O'Neill
Mary Anne O'Neill
Joel I. Rudikoff
Edmund F. Schmidt
Joseph J. Selinger, Jr.
Judge Elliot N. Solomon
Professor Colin C. Tait
Professor Terry J. Tondro
Senator Donald E. Williams, Jr.

Seal-blue4.jpg (4041 bytes)

David D. Biklen
Executive Director

David L. Hemond
Chief Attorney

Jo A. Roberts
Senior Attorney

Connecticut Law Revision Commission
State Capitol
Room 509A
Hartford, Connecticut 06106-1591
(860) 240-0220
FAX (860) 240-0322
Email: lrc@po.state.ct.us

To:   Judiciary Committee of the Connecticut General Assembly
From:   David L. Hemond
Date:   December 21, 1998
Re:   Law Revision Commission Legislative Probate Recommendations

The Law Revision Commission recommends enactment in the 1999 legislative session of the following proposed bills concerning probate matters:

1. A Proposed Bill Consolidating Probate Amendments.

This proposal contains the following amendments:

Section 1 amending section 17a-511 - Transfer of patient subject to voluntary admission.

Section 1 responds to a problem that has occurred in the management of patients under voluntary admission to a hospital for psychiatric disabilities. Section 17a-506 governs those admissions, which may be used in lieu of involuntary commitments under section 17a-498. Administrative difficulties have arisen in transferring patients under a voluntary admission between facilities. Section 17a-511 authorizes such transfers under involuntary commitments, but not under voluntary admissions, resulting in confusion among facilities as to the proper protocol. The proposed draft clarifies that transfers of voluntary patients, with the consent of the patient, are authorized. For the usual patient under a voluntary admission, only that patient's consent is required. However, further approval of the transfer, analogous to that required for committed patients, is specifically required for a voluntarily admitted patient who is under the jurisdiction of the Commissioner on Mental Health and Addiction Services, or a minor under the auspices of the Commissioner of Children and Families.

Section 2 amending section 17a-685 re commitment for treatment for alcohol or drug dependency.

The 1998 legislative session, in section 14 of Public Act 98-219, changed the jurisdiction for commitment of persons for alcohol or drug dependency treatment from the Superior Court to the Probate Court. Several drafting glitches need to be addressed.

In subsection (c), new language in the Public Act requires that the respondent be notified of the right, if indigent, to appointment of counsel, but does not include notice of the right to counsel itself. This language is both insufficient and out-of-step with the usual notice which includes notice of the right to counsel. See, for example, subsection (e) of the same section. The proposed draft corrects the notice language.

In subsection (g), language in the Public Act changed a required process for giving notice from personal service to service by regular mail. However, the Act also retained the prior time period for giving notice which was "three business days" before the hearing. That time period worked for a personal service requirement but does not work for notice by regular mail. Three business days is about how long it takes regular mail to be delivered, leaving the respondent with little effective notice if the period runs from the time of mailing. The proposed draft extends the time period to "at least seven days" before the hearing.

Subsection (f) of section 2 of the draft addresses a complicated issue. Subsection (h) of section 14 of Public Act 98-219 included language substantively changing the standard for recommitment of a patient who requires further inpatient treatment. That section changed a required finding for recommitment that the person "is likely to become dangerous to himself or dangerous to others when he is an intoxicated person or is likely to become gravely disabled" to a required finding that the person "is likely to benefit from" further inpatient treatment. That change conforms with the premise of the commitment provisions, that such a commitment is for purposes of treatment. Continuation of that commitment does not make sense if the treatment will no longer be beneficial. However, the change also provides that once the threshold of "dangerousness" or "disability" has been determined under the initial commitment, it does not have to be redetermined for the limited purposes of a recommitment. The statutes allow only one recommitment, for a period of 30 to 180 days. Note that a person always has the right to seek termination of the commitment or recommitment under subsection (l).

When the legislature, through amendment to subsection (h), changed the policy for the required finding for a recommitment, it failed to conform subsection (f), concerning the allegations that must be made by the administrator petitioning for recommitment. That subsection (f) provision still requires that that administrator allege that the respondent is "likely to become dangerous to himself or dangerous to others…or likely to become gravely disabled". Since these facts are no longer part of the required finding, they should be deleted from the required allegations to conform to the legislative policy indicated by the public act. The proposed draft conforms subsection (f) to the subsection (h) provisions.

Section 3 amending subsection (f) of section 19a-265 concerning emergency tuberculosis commitments.

Section 19a-265(g) was amended by Public Act 98-52, pursuant to a recommendation of the Law Revision Commission, so that a three-judge court for the hearing on a tuberculosis commitment would be required only on "motion of the respondent or the judge of probate". By oversight, that revision failed to amend a similar provision under subsection (f) of that same section. Subsection (f) provides for a three-judge court for an analogous hearing concerning an "emergency commitment" by a public health officer. The proposed draft corrects this drafting oversight by requiring the appointment of such a subsection (f) three-judge court only on "motion of the respondent or the probate judge".

Section 4 amending section 45a-604 concerning the definition of "father".

Section 45a-604 defines "father" for purposes of the statutes concerning guardians of the person of a minor. Public Act 97-7, An Act Concerning Child Support Reform, amended section 46b-172 to provide that a written acknowledgment of paternity by a man in accordance with the requirements of that section, accompanied by the man's waiver of rights to contest paternity and the mother's affirmation of his paternity, constitutes a legally binding finding of paternity without judicial action. The proposed draft revises section 45a-604 to explicitly include in the definition of "father" a person who executes a binding acknowledgment of paternity in accordance with section 46b-172. Since such a person is already a "father" as defined in section 45a-604 under current law, the proposed draft is merely inserting a cross-reference for the benefit of a person reading section 45a-604 who may be unfamiliar with the section 46b-172 provisions.

Section 5 amending section 45a-629 concerning the notice to a minor over twelve of a hearing for appointment of a guardian of the estate of the minor.

The section 45a-629 notice provisions for a hearing on the appointment of a guardian of the estate of a minor require that any minor over twelve be notified to be present at the hearing. The analogous provision concerning notice for appointment of a guardian of the person of the minor, section 45a-609, requires only that a minor over twelve receive notice of the hearing rather than requiring the minor's presence. The Commission advises that requiring the physical presence of the minor in all such estate cases is inconsistent with the provisions for appointment of a guardian of the person, is an administrative burden, and is unnecessary to protect the minor's rights provided that notice of the hearing is given to the minor. The Court may require the minor's presence in a given case, section 45a-129, or appoint a guardian ad litem, section 45a-132. Moreover, the court is obligated by section 45a-629 to ascertain the minor's wishes if a guardian other than a parent is to be appointed. The physical presence requirement therefore appears to be an unnecessary restriction on judicial discretion. The proposed draft requires that a minor over twelve receive notice of the hearing rather than being required to attend the hearing.

Sections 6 and 7 amending sections 45a-690 and 45a-700 so that due process requirements concerning sterilization apply to permanent sterilization by any medical procedure.

Part VI of Chapter 802h sets requirements for informed consent before the performance of any surgical sterilization. If a person is unable to give informed consent, sterilization is permitted only after a judicial hearing determining that sterilization "is in the best interest of the person". Section 45a-691. The court must appoint counsel for the respondent and the hearing must include consideration of medical, social, educational, residential and psychological evidence. Section 45a-699. Even if a finding of best interest is made, the respondent may refuse sterilization "provided the court concludes that the respondent understands the nature and consequences of such refusal." Section 45a-697.

These protections, however, apply only to surgical procedures. Advances in medical technology, allowing permanent sterilization through chemical or radiation treatment, threaten to render these protections obsolete. The proposed draft would amend section 45a-690, the definitional section, so that the protections apply to any "surgical or other medical procedure, the purpose of which is to render an individual permanently incapable of procreating". Section 45a-700 is also amended to apply to all medical procedures. That section, which currently applies only to surgical procedures, states that the restrictions on sterilization are not to be used to inhibit "medically indicated" treatment.

Section 8 amending section 46b-172a concerning notice of a claim for paternity.

Subsection (a) of section 46b-172a sets out the notice requirements for a putative father's claim of paternity with the Probate Court. The section includes a requirement that notice of the paternity claim be given to the vital records section of the Department of Public Health. The vital records section of the Department of Public Health has no interest in the assertion of a claim for paternity, which standing alone is a mere assertion rather than a legally binding adjudication or acknowledgment. Such a claim cannot be preserved as a vital record. The requirement of notice to the vital records section is, therefore, an unnecessary and unwarranted administrative burden. The proposed draft deletes that requirement.

Section 9 creating a new obligation of an appointed guardian of the person of the minor to report annually to the probate court concerning the condition of the minor.

Court-appointed conservators of the person and guardians of the mentally retarded are required to submit annual reports to the Probate Court concerning the condition of their ward. See section 45a-656(a)(6) for conservators of the person and section 45a-677(f) for guardians of the mentally retarded. The General Statutes have no such requirement for court-appointed guardians of the person of a minor, notwithstanding the court's supervisory obligations to protect the minor and to supervise its appointed guardian. See, for example, section 45a-616, under which the court can condition appointment on provision by the proposed guardian of an appropriate probate bond. Such court-appointed guardians of the person should be required to report annually to the Probate Court to ensure adequate protection of the interests of the minor. Section 9 contains such a proposed requirement.

2. Proposed Bill Authorizing Signature under Penalty of False Statement.

The Law Revision Commission recommends a revision that would substitute requiring a signature under penalty of false statement on various probate documents in lieu of existing requirements that require an oath or acknowledgment before a notary or other proper officer. The purpose of the proposed revision is to promote administrative streamlining and convenience in situations where the more onerous burden of requiring an oath before a notary is not necessary.

Current public policy and statutory provisions make significant use of the requirement for signature under penalty of false statement. A person making a false statement under penalty of false statement commits a class A misdemeanor in violation of section 53a-157b. In the last legislative session, for example, section 23 of Public Act 98-219, concerning certain statements in lieu of account, provide for filing by the fiduciary of the statement under penalty of false statement. See also the probate judges statement of financial interest which, under section 45a-68, is signed under penalty of false statement. The Commission has identified numerous other filings in probate matters in which such a signature under penalty of false statement would provide adequate safeguards. More specifically, the Commission recommends in each of the following sections that a signature under false statement be substituted for an existing requirement for the taking of an oath:

Section 1 amending subsection (c) of section 17a-498 re commitment applications.

Under section 17a-498, the Probate Court appoints two impartial physicians to examine the respondent. Under current law, the physicians must provide sworn certificates that they have examined the respondent within ten days of the hearing. The physicians are selected by the court and are responding to a statutory requirement to provide the certificate. Moreover, the physicians may be ordered to testify on request.

Sections 2 and 3 amending section 45a-92 and section 45a-92 requiring statements by judges of probate.

Under section 45a-92, a judge of probate, or his personal representative if he dies, is required to submit a sworn statement of receipts, costs, and income for his office. Section 45a-93 references the section 45a-92 sworn statement.

Section 4 amending section 45a-111 re exemptions for costs.

Section 45a-111 requires an indigent person requesting a waiver of fees based on indigency to file a sworn application.

Section 5 amending section 45a-130 re returns.

Section 5 provides that the Probate Court may order that certain returns be made under oath.

Section 6 amending section 45a-177 re periodic fiduciary accounts.

Section 45a-177 requires that periodic fiduciary accounts be sworn to.

Section 7 amending section 45a-179 re final accounts.

Section 45a-179 requires that final accounts be sworn to.

Section 8 amending section 45a-273 re statement in lieu of administration.

Section 45a-273 requires that the affidavit in lieu of administration for small estates be sworn to. The draft allows a statement under penalty of false statement to be filed in lieu of the affidavit.

Section 9 amending section 45a-317 re temporary administrators.

Section 45a-317 requires that the temporary administrator file a sworn inventory.

Section 10 amending section 45a-341 re inventories.

Section 45a-341 requires that inventories be sworn to.

Section 11 amending section 45a-361 re list of claims.

Section 45a-361 requires that the list of claims be sworn to.

Section 12 amending section 45a-517 re accounts by community trustees.

Annual accounts by community trustees are to be under oath.

Section 13 amending subsection (c) of section 45a-607.

With respect to temporary custody hearings for a minor, a waiver of notice and an allegation as to the respondent's whereabouts are to be under oath.

Section 14 amending section 45a-609 re removal of parent as guardian.

Section 45a-609 requires that an allegation of the whereabouts of the respondent be made under oath.

Sections 15 and 16 amending sections 45a-624 and 45a-624c re the affidavit - now statement - that designation of a standby guardian is in effect.

Sections 45a-624 and 45a-624c specify an affidavit form to be used by a standby guardian which is to be taken under oath. The term "affidavit" is replaced by "statement" which must be under penalty of false statement.

Section 17 amending section 45a-634 re inventory by the guardian of the estate.

Section 45a-634 requires that this guardian file an inventory under oath.

Section 18 amending subsection (a) of section 45a-655 re inventory by conservator of the estate.

Subsection (a) of section 45a-655 requires that the conservator's inventory be filed under oath.

Section 19 amending section 45a-659 re conservator's inventory for nonresident.

This section similarly requires that the conservator's inventory be filed under oath.

Section 20 amending section 45a-695 re reports of interdisciplinary team.

This section requires that reports of the court's interdisciplinary team be filed under oath.

Section 21 amending section 45a-716 re waiver of personal service.

Under this section a person in a proceeding for termination of parental rights may sign a written waiver under oath of personal service, in which case notice is given by certified mail.

Section 22 is new.

This section provides that if a provision, as amended by the act, requires that a writing be submitted under penalty of false statement, the affiant may, in lieu thereof, swear to the truth of the writing.

Section 23 is new.

This section is provides generally that in any matter before a probate court requiring a sworn writing, the matter may be with like force and effect supported by a writing signed under penalty of false statement. An exception is made for the self-proving affidavit for a will, which must be sworn to, a document signed by an adopted person authorizing disclosure of identifying information, a deposition, an oath of office, or an oath required to be taken before a specified official. This provision addresses requirements currently set by regulation requiring other filings under oath.

3. Proposed Bill limiting time for decision in probate court.

Current law limits the time within which a Superior Court judge may render judgment to 120 days from the completion of trial in a civil cause, subject to waiver by the parties. No such limitation applies to Probate Court judges. Discussions with the Probate Court Administrator and advisors to the Commission's Probate Committee indicate that it would be appropriate to extend the limitation to proceedings in the probate court.

Proposed Bill Consolidating Probate Amendments

Proposed Bill Authorizing Signature under Penalty of False Statement

Proposed Bill limiting time for decision in probate court

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