2007 Developments in Connecticut Estate and Probate Law
| Jurisdiction | Connecticut,United States |
| Publication year | 2021 |
| Citation | Vol. 82 Pg. 119 |
| Pages | 119 |
82 CBJ 119. 2007 DEVELOPMENTS IN CONNECTICUT ESTATE AND PROBATE LAW
Volume 82, No. 2, Pg. 119
June 2008
In this Article, we provide a summary of selected 2007 legislation and case law impacting Connecticut estate and probate practice. I.
Legislation in 2007 was noteworthy both in terms of the bills that advanced and those that did not. For example, while the Connecticut legislature completely revamped the state's laws relating to appointment and judicial oversight of conservators, significant legislative proposals relating to estate tax reform and adoption of the Uniform Trust Code made only modest headway in 2007. At the same time, calls for major restructuring of Connecticut's probate courts yielded comparatively modest administrative and procedural reforms.
A. An Act Concerning the Connecticut Uniform Transfers to Minors Act(fn1)
Under the Connecticut Uniform Transfers to Minors Act,(fn2) a person can transfer property to a custodian to hold and manage for the benefit of a minor.(fn3) One significant limitation to the use of custodial arrangements is the fact that the minor is entitled to a complete distribution at age twenty-one,(fn4) an age that many parents and grandparents feel is too young to manage significant assets properly. In response to such concerns, the Act now authorizes a custodian to use custodial assets to fund a trust for the benefit of the minor even if the term of the trust extends beyond the minor's twenty-first birthday.(fn5)
The following requirements apply: (1) the custodian must believe in good faith that the distribution to the trust is in the minor's best interest; (2) the minor must be the sole trust beneficiary during the minor's lifetime; (3) the trust must meet federal requirements for a Section 2503(c) trust;(fn6) (4) the trust must permit the minor to withdraw the trust property at both age twenty-one and age twenty-five; (5) the trustee must provide the minor with timely written notice of the withdrawal rights; and (6) such withdrawal rights cannot lapse until the later of thirty days after the minor turns the applicable age or thirty days after the receipt of the notice.(fn7) This act became effective on October 1, 2007.
B. An Act Concerning Notice of Certain Probate Court Hearings and the Filing of Certain Reports, the Administration of the Courts of Probate and the Duties of the Probate Court Administrator(fn8)
In an effort to increase the responsiveness and professionalism of the state's probate courts, this act gives the Probate Court Administrator greater power over probate courts and judges.(fn9) Specifically, the Act expands the Probate Court Administrator's authority to issue and enforce regulations for the administration of probate courts, including issuing regulations regarding the reassignment of cases and the training and continuing education of judges and court personnel.(fn10)
The Act also requires that probate courts meet certain minimum statutory standards. These include the requirements that courts be open to the public at least twenty hours a week,(fn11) have adequate physical facilities including separate offices for judges and staff,(fn12) and have necessary equipment for microfilming and maintaining court records.(fn13) The Probate Court Administrator is empowered to enforce these requirements.
The Act also alters the method for notifying parties in connection with certain probate court proceedings.(fn14) It allows abode service in places where the prior law had required personal service, permits first class mail notice instead of certified mail, but now requires personal service for the following applications: (1) temporary custody of a minor pending a removal action;(fn15) (2) removal of a parent as guardian;(fn16) (3) appointment of a guardian for a minor;(fn17) (4) guardianship of a mentally retarded person;(fn18) (5) termination of parental rights;(fn19) (6) Department of Children and Families (DCF) petitions to determine if continuing to care for a minor voluntarily admitted to DCF is in the minor's best interest;(fn20) (7) emancipation of a minor;(fn21) and (8) paternity claims.(fn22)
Finally, the Act authorizes the appointment of special assignment judges by the Chief Justice of the Connecticut Supreme Court. The Probate Court Administrator is directed to issue regulations concerning the responsibilities and geographic distribution of these judges.(fn23)
The Act became effective on October 1, 2007, except for the provisions relating to probate court administration, which became effective July 1, 2007.(fn24)
C. An Act Concerning Conservators and Appeals of Conservatorships and Guardianships(fn25)
In the wake of several reports of alleged abuses,(fn26) the legislature enacted major changes to probate court procedures for the appointment of conservators for those incapable of caring for themselves and/or managing their own affairs. The new Act makes these changes to protect the rights of those conserved and more closely follow their stated wishes. Major features of the Act are: (1) changes to the definition of incapacity, (2) new limits on conservators' powers and duties, (3) new standards for the appointment and retention of conservators, and (4) new procedures and procedural safeguards. All of these changes are effective October 1, 2007.
1. The Definition of Incapacity
The new Act makes important changes to the definition of incapacity.(fn27) The focus is no longer on a person's individual ability to provide for his or her own care and to manage his or her own affairs. Instead, the definition now more fully considers the impact of any assistance currently available to that person. As such, the emphasis shifts from the person's ability to care for herself in isolation to her ability to evaluate information, and make and communicate decisions to those assisting with her care.
For example, under prior law, a person was deemed "incapable of caring for himself or herself," and thus in need of appointment of conservator of the person, if the following tests were met: (1) the person had a mental, emotional, or physical condition; (2) resulting from mental illness, mental deficiency, physical illness or disability, chronic drug or alcohol use, or confinement; (3) that made the person unable to provide medical care for physical or mental health needs, nutritious meals, clothing, safe and adequately heated and ventilated shelter, personal hygiene, and protection from physical abuse or harm; and (4) endangered the person's health.
The Act revises this definition to define a person as "incapable of caring for himself or herself" if the person "has a mental, emotional, or physical condition that makes him or her unable to receive and evaluate information or make or communicate decisions to such an extent that the person is unable, even with appropriate assistance, to meet essential requirements for personal needs."(fn28) The addition of the phrase "even with appropriate assistance" is crucial to this new regime, as it seemingly would prevent the appointment of a conservator for a person who cannot care for herself but who has made adequate arrangements for her own care.
Similarly, the Act changes the relevant parts of the definition of "incapable of managing his or her affairs," which justifies appointment of a conservator of the estate.(fn29)
2. New Limits on the Powers and Duties of a Conservator; the "Least Restrictive Means of Intervention"
Under the Act, the court may grant to a conservator only those powers and duties that represent the least restrictive means of intervention for the conserved person.(fn30) "Least restrictive means" are defined as those that are "... sufficient to provide, within the resources available to the conserved person either from the conserved person's own estate or from private or public assistance, for a conserved person's personal needs or property management while affording the conserved person the greatest amount of independence and selfdetermination."(fn31) As with the changes in the definition of incapacity discussed above, the focus is on enabling a conserved person to retain all powers and freedoms that need not be transferred to the conservator for the person's protection.
3. New Standards
The Act significantly alters the procedures for appointment of a conservator and fundamentally redefines the conservator's role.
a. Jurisdiction and Rules of Evidence
Before a probate court holds a hearing on an application for involuntary representation, the court must find, by clear and convincing evidence, that the court has jurisdiction and that the person who is the subject of the application (1) received notice, (2) has been advised of the right to an attorney, and (3) is either represented by an attorney or waived that right. In addition, the person who is the subject of the application has the right to attend all hearings and to review all relevant medical information.(fn32) The probate court now must follow the Superior Court rules of evidence and take testimony under oath.(fn33)
b. Factors To Be Considered in Conservatorship Proceedings
The Act specifies that the court be guided by the person's best interests when selecting a conservator and reviewing that conservator's actions. In this effort a court shall consider the following factors: (1) the person's abilities; (2) the person's capacity to understand and articulate an informed preference about his or her care or affairs; (3) any relevant and material information from the person; (4) evidence of the person's past preferences, lifestyle choices, and cultural background; (5) the desirability of maintaining continuity in the person's life and environment; (6) any relevant and...
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