PROPOSED DRAFT

CONNECTICUT LAW REVISION COMMISSION

Consolidating Probate Amendments

December 21, 1998

An Act Concerning Amendments to the Probate Statutes

 Section 1. Section 17a-511 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) Any person who has been committed by any court to a hospital for psychiatric disabilities may be transferred to any other hospital for psychiatric disabilities upon agreement of the superintendents of the respective institutions from and to which it is desired to make such transfer, subject to the approval of the Commissioner of Mental Health and Addiction Services, or, in the case of a person under eighteen years of age, the approval of the Commissioner of Children and Families. Such agreement shall be in writing, executed in triplicate and in accordance with a form prescribed by the Attorney General, which form shall be uniform throughout the state. One copy of such agreement shall be filed for record in the court by which such person was committed and one copy retained in the files of each of the institutions participating in such transfer. Any such agreement shall have the same effect as an order of the court committing the person named therein. The conservator, overseer or any member of the family of any person so transferred, or his next friend, may make application to the court which made the order of commitment, for a revocation or modification of such agreement, and thereupon such court shall order such notice of the time and place of hearing thereon as it finds reasonable and upon such hearing may revoke, modify or affirm such transfer.

(b) ANY PERSON WHO HAS BEEN VOLUNTARILY ADMITTED TO A HOSPITAL FOR PSYCHIATRIC DISABILITIES PURSUANT TO SECTION 17a-506 MAY, WITH THE INFORMED CONSENT OF THE PERSON ADMITTED, BE TRANSFERRED TO ANY OTHER HOSPITAL FOR PSYCHIATRIC DISABILITIES. IF THAT PERSON IS SUBJECT TO THE JURISDICTION OF THE COMMISSIONER OF MENTAL HEALTH AND ADDICTION SERVICES, THE TRANSFER SHALL REQUIRE THE AGREEMENT OF THE SUPERINTENDENTS OF THE RESPECTIVE INSTITUTIONS FROM AND TO WHICH IT IS DESIRED TO MAKE THE TRANSFER AND THE APPROVAL OF THE COMMISSIONER OF MENTAL HEALTH AND ADDICTION SERVICES. IF THAT PERSON IS UNDER EIGHTEEN YEARS OF AGE AND SUBJECT TO THE JURISDICTION OF THE COMMISSIONER OF CHILDREN AND FAMILIES, THE TRANSFER SHALL REQUIRE THE AGREEMENT OF THE SUPERINTENDENTS OF THE RESPECTIVE INSTITUTIONS FROM AND TO WHICH IT IS DESIRED TO MAKE THE TRANSFER AND THE APPROVAL OF THE COMMISSIONER OF CHILDREN AND FAMILIES. AN AGREEMENT TO TRANSFER UNDER THIS SUBSECTION SHALL BE IN WRITING, EXECUTED IN TRIPLICATE AND IN ACCORDANCE WITH A FORM PRESCRIBED BY THE ATTORNEY GENERAL, WHICH FORM SHALL BE UNIFORM THROUGHOUT THE STATE. ONE COPY OF THE AGREEMENT SHALL BE RETAINED IN THE FILES OF EACH OF THE INSTITUTIONS PARTICIPATING IN THE TRANSFER AND ONE COPY SHALL BE PROVIDED TO THE PERSON WHO HAS BEEN VOLUNTARILY ADMITTED OR TO THAT PERSON'S AUTHORIZED REPRESENTATIVE. A TRANSFER UNDER THIS SUBSECTION SHALL NOT AFFECT THE PERSON’S RIGHTS UNDER THE VOLUNTARY ADMISSION.

 Sec. 2. Section 17a-685 of the general statutes, as amended by section 14 of Public Act 98-219, is repealed and the following is substituted in lieu thereof:

(a) Any person, including the spouse, a relative or a conservator of a person sought to be committed, a physician issuing a certificate under subsection (b) of this section or the administrator of a treatment facility may make application to the probate court to commit a person to an inpatient treatment facility for treatment for alcohol dependency or drug dependency. The application shall be brought to the probate court for the district in which the respondent resides, or, if his residence is out of state or unknown, for the district in which he is at the time of filing the application. In any case in which the person is being treated in a facility, and an application is filed in accordance with the provisions of this section, jurisdiction shall be vested in the probate court for the district in which the facility where such person is a patient is located. If the respondent is confined to a facility, notwithstanding the provisions of section 45a-7, the judge of probate for the district in which the application was filed shall hold the hearing on the application at the facility where such person is confined.

(b) The application shall allege that the person is an alcohol-dependent person or a drug-dependent person who is dangerous to himself or dangerous to others when he is an intoxicated person or who is gravely disabled. The application shall contain a statement that the applicant has arranged for treatment in a treatment facility. A statement to that effect from such facility shall be attached to the application. The application shall also be accompanied by a certificate of a licensed physician who has examined the person within two days before submission of the application. The physician's certificate shall set forth the physician's findings, including clinical observation or information, or the person's medical history, in support of the allegations of the application, and a finding of whether the person presently needs and is likely to benefit from treatment, and shall include a recommendation as to the type and length of treatment and inpatient facilities available for such treatment. A physician employed by the private treatment facility to which the person is to be committed is not eligible to be the certifying physician. An application filed by a person other than the certifying physician shall set forth the facts and information upon which the applicant bases his allegations and the names and addresses of all physicians.

(c) Upon receipt of the application, the court shall assign a time for a hearing not later than seven business days after the date the application was filed. A copy of the application and physician's certificate and the notice of the hearing, shall be served, by a sheriff or his deputy, constable or indifferent person not later than three business days before the hearing on the respondent, unless the respondent is in a facility, in which case such notice shall be by regular mail. Such notice shall inform such respondent that he has a right to be present at the hearing, that he [, if indigent, has a right to have counsel appointed to represent him,] HAS THE RIGHT TO COUNSEL AND, IF INDIGENT, TO HAVE COUNSEL APPOINTED TO REPRESENT HIM, and that he has a right to cross-examine witnesses testifying at any hearing upon that application. The court shall cause a recording of the testimony of such hearing to be made, to be transcribed only in the event of an appeal from the decree rendered pursuant to this section. A copy of such transcript shall be furnished without charge to any appellant whom the court of probate finds is unable to pay for the same. The cost of said transcript shall be paid from funds appropriated to the judicial department. The court shall cause notice of said hearing to be given by regular mail to the respondent's next of kin, a parent or his legal guardian if he is a minor, the administrator of the treatment facility if the respondent has been committed for emergency treatment pursuant to section 17a-684, and the administrator of the treatment facility to which the respondent is to be admitted. The court may order such notice as it directs to other persons having an interest in the respondent. If the court finds such respondent is indigent or otherwise unable to pay for counsel, the court shall appoint counsel for such respondent, unless such respondent refuses counsel and the court finds that the respondent understands the nature of his refusal. The court shall appoint counsel for the respondent from a panel of attorneys admitted to practice in this state provided by the probate court administrator in accordance with regulations promulgated by the probate court administrator in accordance with section 45a-77. The reasonable compensation of appointed counsel shall be established by, and paid from funds appropriated to, the judicial department. If funds have not been included in the budget of the judicial department for such purposes, such compensation shall be established by the probate court administrator and paid from the probate court administration fund. Prior to such hearing such respondent, or his counsel, in accordance with the provisions of sections 52-146d to 52-146i,inclusive, shall be afforded access to all records, including without limitation, hospital records if such respondent is hospitalized, and shall be entitled to take notes therefrom. If such respondent is hospitalized at the time of the hearing, the hospital shall make available at such hearing for use by the respondent or his counsel all records in its possession relating to the condition of the respondent. Notwithstanding the provisions of sections 52-146d to 52-146i,inclusive, all such hospital records directly relating to the respondent shall be admissible at the request of any party or the probate court in any proceeding relating to the confinement to or release from a hospital or treatment facility. Nothing in this section shall prevent timely objections to the admissibility of evidence in accordance with the rules of civil procedure.

(d) If, after hearing all relevant evidence, including the results of any diagnostic examination, the court finds, by clear and convincing evidence, that the respondent is an alcohol-dependent person or a drug-dependent person who is dangerous to himself or dangerous to others when he is an intoxicated person or who is gravely disabled, it shall make an order of commitment to a treatment facility for inpatient treatment for a period of not less than thirty nor more than one hundred eighty days. The court may not order commitment of a respondent unless it determines that the treatment facility is able to provide adequate and appropriate treatment for him and that the treatment is likely to be beneficial. In any proceeding pursuant to this subsection, the provisions of section 17a-686 shall apply.

(e) A person committed under this section shall remain in the custody of the administrator of the treatment facility for inpatient treatment for the commitment period unless sooner discharged under the provisions of subsection (k) of this section by the administrator of the treatment facility. At the end of the commitment period, a person committed under this section shall be discharged automatically unless the administrator, before expiration of the period, obtains a court order for recommitment pursuant to the provisions of subsection (f) of this section for inpatient treatment. When the person is discharged, the administrator shall, if recommended by the medical officer of the facility, refer the person to an outpatient treatment facility for treatment pursuant to the provisions of subsection (j) of this section.

(f) The administrator of an inpatient treatment facility, before expiration of the commitment period ordered in subsection (d) of this section, or the administrator of an outpatient treatment facility, before expiration of the outpatient treatment period set forth in subsection (j) of this section, may, on the advice of the medical officer of the facility, make application to the court for recommitment of the person to a treatment facility for inpatient treatment. An application for recommitment shall allege that the respondent is an alcohol-dependent person or a drug-dependent person who needs further inpatient treatment [and who is likely to become dangerous to himself or dangerous to others when he is an intoxicated person or likely to become gravely disabled] and is likely to benefit from such treatment, and, if the respondent is in an outpatient facility, that the respondent is not successfully participating in the outpatient program.

(g) Upon the receipt of an application for recommitment under subsection (f) of this section, the court shall assign a time for hearing no later than ten business days after the date the application was filed. A copy of the application and of the notice of the hearing, including the date fixed by the court, shall be sent by regular mail [no later than three business days] AT LEAST SEVEN DAYS before the hearing, to the respondent, his next of kin, the original applicant under subsection (a) of this section if different from the applicant for recommitment, his parents or his legal guardian if he is a minor, the administrator of the treatment facility to which the respondent is admitted or to be admitted and any other person the court believes advisable. The applicant shall be notified of the hearing date not later than three business days before the hearing.

(h) If after hearing all relevant evidence, including the results of any diagnostic examination, the court finds, by clear and convincing evidence, that the respondent is an alcohol-dependent person or a drug-dependent person who needs further inpatient treatment and who is likely to benefit from such treatment, and, if the respondent is in an outpatient treatment facility, that the respondent is not successfully participating in the outpatient program, it shall make an order of recommitment to an inpatient treatment facility for treatment for a period of not less than thirty nor more than one hundred eighty days. The court may not order recommitment of a respondent unless it determines that the treatment facility is able to provide adequate and appropriate treatment for him and that the treatment is likely to be beneficial. The court shall not make more than one recommitment order immediately following an original commitment order under subsection (d) of this section nor more than one recommitment order from an outpatient treatment facility. In any proceeding pursuant to this subsection, the provisions of section 17a-686 shall apply.

(i) A person recommitted under subsection (h) of this section who has not been discharged before the end of the recommitment period shall be discharged automatically at the expiration of that period. When the recommitted person is discharged, the administrator of the treatment facility shall, if advised to do so by the medical officer of the facility, refer the person to an outpatient treatment facility for treatment pursuant to the provisions of subsection (j) of this section.

(j) A person referred to an outpatient treatment facility pursuant to the provisions of subsection (e) or (i) of this section shall remain in outpatient treatment for a period of twelve months unless sooner discharged by the administrator of the treatment facility, on the advice of the medical officer of the facility, or unless, before expiration of the period of outpatient treatment, the administrator obtains a court order of recommitment for inpatient treatment as provided in subsection (h) of this section.

(k) The administrator of a treatment facility, on the advice of the medical officer, shall discharge a person committed or recommitted for treatment at any time before the end of the period for which he has been committed if the person is no longer an alcohol-dependent person or a drug-dependent person in need of further treatment, further treatment will not be likely to bring about significant improvement in the person's condition or treatment is no longer adequate or appropriate.

(l) If a committed or recommitted person has not been discharged pursuant to subsection (k) of this section, any responsible person, including the committed or recommitted person, may make application to the probate court for termination of commitment or recommitment and discharge from the treatment facility. The application shall allege that the committed or recommitted person is no longer an alcohol-dependent person or a drug-dependent person in need of further treatment, that further treatment will not be likely to bring about significant improvement in the person's condition or that treatment is no longer adequate or appropriate. Upon receipt of any such application, such court shall assign a time, not later than ten business days thereafter, and a place for hearing such application, and shall cause reasonable notice thereof to be given to the applicant, the administrator of the treatment facility and any other person the court deems advisable. Such notice shall inform the applicant that he has the right to be present at the hearing and to present evidence at the hearing, that he has a right to counsel, that he, if indigent, has a right to have counsel appointed to represent him, and that he has a right to cross-examine witnesses at any hearing on such application. The provisions of section 17a-686 shall apply. If, after hearing, the court determines that the grounds alleged in the application exist, it shall order termination of the commitment or recommitment and discharge of the committed or recommitted person, except that the court may not order the discharge of an alcohol-dependent person or drug-dependent person who the court determines is likely to become dangerous to himself or dangerous to others when he is an intoxicated person.

(m) The administrator of a treatment facility to which a committed or recommitted person has been committed or recommitted may, under such restrictions or agreements as he deems advisable and on the advice of the medical officer of the facility, permit the person to leave the treatment facility temporarily, in the charge of his guardian, conservator, relatives or friends, or by himself.

(n) All the expenses in connection with an application filed under sections 17a-684 to17a-686, inclusive, as amended by this act, shall be paid by the applicant, unless the applicant is indigent, in which case such expenses shall be paid by the state from funds appropriated to the department of mental health and addiction services in accordance with rates established by said department, and attorney's fees shall be established by, and paid from funds appropriated to, the judicial department. If funds have not been included in the budget of the judicial department for such attorney's fees, such fees shall be established by the probate court administrator and paid from the probate court administration fund, provided in no event shall the expenses under subsection (l) of this section be paid for any one applicant for more than two hearings per year.

 Sec. 3. Subsection (f) of section 19a-265 of the general statutes, as amended by section 1 of public act 97-90 and section 1 of public act 98-52, is repealed and the following is substituted in lieu thereof:

(f) Immediately upon issuance of an emergency commitment order under subdivision (4) of subsection (c) of this section, the director of health shall petition the probate court for the district in which the person who is subject to the order resides to determine whether such commitment shall be continued. The PETITION SHALL BE HEARD BY THE JUDGE OF PROBATE OF THAT DISTRICT, PROVIDED THAT ON MOTION OF THE RESPONDENT OR THE JUDGE OF PROBATE FOR APPOINTMENT OF A THREE-JUDGE COURT, THE Probate Court Administrator shall appoint a three-judge court from among the several judges of probate to conduct the hearing. Such three-judge court shall consist of at least one judge who is an attorney-at-law admitted to practice in this state. The judge of probate having jurisdiction under the provisions of this section shall be a member, provided such judge may disqualify himself, in which case all three members of such court shall be appointed by the Probate Court Administrator. Such three-judge court when convened shall be subject to all of the provisions of law as if it were a single-judge court. The involuntary confinement of a person under this section BY A THREE-JUDGE COURT shall not be ordered by the court without the vote of at least two of the three judges convened hereunder. The judges of such court shall designate a chief judge from among their members. All records for any case before the three-judge court shall be maintained by the court of probate having jurisdiction over the matter as if the three-judge court had not been appointed. The hearing, WHETHER BEFORE A ONE JUDGE OR THREE JUDGE COURT, shall be held within ninety-six hours, excluding Saturdays, Sundays and legal holidays, of the issuance of such order of emergency commitment and the court shall cause such advanced notice as it directs thereof to be given to the person who is the subject of the order and such other person as it may direct. The court shall determine: (1) If the person has active tuberculosis that is infectious or presents a substantial likelihood of having active tuberculosis that is infectious based upon epidemiologic, clinical, or radiographic evidence, and laboratory test results; (2) if the person poses a substantial and imminent likelihood of transmitting tuberculosis to others because of inadequate separation from others, based on a physician's professional judgment using recognized infection control principles; (3) if the person is unwilling or unable to behave so as to not expose others to risk of infection from tuberculosis; (4) if efforts have been made to educate and counsel the person about the need to avoid exposing others and required contagion precautions; (5) if the person has expressed or demonstrated an unwillingness to adhere to the prescribed course of treatment that would render the person noninfectious; (6) if efforts have been made to educate and counsel about the need to complete treatment and if reasonably appropriate enablers and incentives have been offered to facilitate the completion of treatment; and (7) whether the order is necessary and is the least restrictive alternative to protect the public health.

 Sec. 4. Section 45a-604 of the general statutes is repealed and the following is substituted in lieu thereof:

As used in sections 45a-603 to 45a-622, inclusive:

(1) "Mother" means (A) a woman who can show proof by means of a birth certificate or other sufficient evidence of having given birth to a child and (B) an adoptive mother as shown by a decree of a court of competent jurisdiction or otherwise;

(2) "Father" means [(A)] a man who is a father under the law of this state INCLUDING A MAN WHO IN ACCORDANCE WITH SECTION 46b-172 OF THE GENERAL STATUTES, AS AMENDED BY SECTION 23 OF PUBLIC ACT 97-7 OF THE JUNE 18, 1997 SESSION EXECUTES A BINDING ACKNOWLEDGMENT OF PATERNITY [;] and [(B)] a man determined to be a father under chapter 815y;

(3) "Parent" means a mother as defined in subdivision (1) of this section or a "father" as defined in subdivision (2) of this section;

(4) "Minor" or "minor child" means a person under the age of eighteen;

(5) "Guardianship" means guardianship of the person of a minor, and includes: (A) The obligation of care and control; and (B) the authority to make major decisions affecting the minor's welfare, including, but not limited to, consent determinations regarding marriage, enlistment in the armed forces and major medical, psychiatric or surgical treatment;

(6) "Guardian" means one who has the authority and obligations of "guardianship" as defined in subdivision (5) of this section;

(7) "Termination of parental rights" means the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and the child's parent or parents so that the child is free for adoption, except that it shall not affect the right of inheritance of the child or the religious affiliation of the child.

 Sec. 5. Section 45a-629 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) When a minor is entitled to property, the court of probate for the district in which the minor resides may assign a time and place for a hearing on the appointment of a guardian of the estate of the minor. The court shall cause reasonable notice of hearing to be given to (1) the parents or guardian of the person of the minor, (2) THE MINOR, IF THE MINOR IS TWELVE YEARS OF AGE OR OLDER, and (3) such other persons as it determines. [, subject to waiver of notice, and shall also notify the minor to be present at the hearing, if he is twelve years of age or over.] ANY PERSON ENTITLED TO NOTICE OF THE HEARING MAY WAIVE THAT NOTICE.

(b) If the court finds that there is no guardian of the estate of the minor, it may appoint one or both of the parents or any guardian of the person of the minor to be guardian of his estate. If neither parent nor the guardian of the person of the minor will accept the appointment, or if the parents or guardian of the person of the minor are not proper persons to act as guardian of his estate, the court may appoint any proper person or persons chosen by the minor if the minor is twelve years of age or over. If the minor neglects to make choice or fails to choose a proper person or persons or is not of sufficient age, the court of probate shall appoint some proper person or persons, who, as guardian of the estate of the minor, shall have charge of all the minor's property, whether acquired before or after the guardian's appointment, but shall have no control over his person. If any minor who has a guardian marries and owns or thereafter acquires property, the guardianship of such property shall continue during such person's minority. Any guardian so appointed shall give a probate bond.

Sec. 6.

Section 45a-690 of the general statutes is repealed and the following is substituted in lieu thereof:

For purposes of sections 45a-690 to 45a-700, inclusive:

(a) "Sterilization" means a surgical OR OTHER MEDICAL procedure, the purpose of which is to render an individual PERMANENTLY incapable of procreating;

(b) "Informed consent" means consent that is (1) based upon an understanding of the nature and consequences of sterilization; (2) given by a person competent to make such a decision, and (3) wholly voluntary and free from coercion, express or implied;

(c) "Institution" means a state school or hospital or other residential facility operated or leased by the state of Connecticut;

(d) "Best interest" shall include all of the following factors: (1) Less drastic alternative contraceptive methods have proved unworkable or inapplicable, (2) the individual is physiologically sexually mature, (3) there is no evidence of infertility, (4) the individual has the capability and a reasonable opportunity for sexual activity, (5) the individual is unable to understand reproduction or contraception and there exists the likely permanence of that inability, (6) the physical or emotional inability to care for the child, (7) the proponents of the sterilization are seeking sterilization in good faith and their primary concern is for the best interests of the respondent rather than their own convenience or the convenience of the public and (8) in the case of females, procreation would endanger the life or severely impair the health of the individual.

 Sec. 7.

Section 45a-700 of the general statutes is repealed and the following is substituted in lieu thereof:

Nothing in sections 45a-690 to 45a-700, inclusive, shall limit surgical OR OTHER MEDICAL procedures which are medically indicated and which may result in sterilization. A hysterectomy shall not be performed for the purpose of sterilization or for the purpose of hygiene and sanitary care of a female's menses.

 Sec. 8.

Subsection (a) of section 46b-172a of the general statutes, as amended by section 24 of June 18 special session public act 97-7, and section 2 of public act 98-52, is repealed and the following is substituted in lieu thereof:

(a) Any person claiming to be the father of a child born out of wedlock may at any time but no later than sixty days after the date of notice under section 45a-716, file a claim for paternity with the court of probate for the district in which either the mother or the child resides, on forms provided by such court. The claim shall contain the claimant's name and address, the name and last-known address of the mother and the month and year of the birth or expected birth of the child. Within five days after the filing of a claim for paternity, the judge of the court of probate shall cause a certified copy of such claim to be mailed by certified mail to [(1) the vital records section of the Department of Public Health and (2) to] the mother or prospective mother of such child at the last-known address shown on the claim for paternity. The claim for paternity shall be admissible in any action for paternity under section 46b-160, and shall estop the claimant from denying his paternity of such child and shall contain language that he acknowledges liability for contribution to the support and education of the child after its birth and for contribution to the pregnancy-related medical expenses of the mother.

 Sec. 9. (new)

Any person appointed as guardian of the person of a minor pursuant to chapter 802h of the general statutes shall report at least annually to the probate court which appointed the guardian regarding the condition of the minor.

Probate Recommendations - Cover

Proposed Bill Authorizing Signature under Penalty of False Statement

Proposed Bill limiting time for decision in probate court

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