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CHAPTER 7 - TRUSTS
Section 1. Trustee to Receive Proceeds of Pension, Retirement, Death Benefit
and Profit-Sharing Plans
a. As used in this Section, "proceeds" means the proceeds paid upon the death of any insured, employee or participant under any thrift plan or trust, savings plan or trust, pension plan or trust, death benefit plan or trust, stock bonus plan or trust including any employee's stock ownership plan or trust; any retirement plan or trust, which includes self-employed retirement plans and individual retirement accounts, annuities and bonds; and the proceeds of any individual, group or industrial life insurance policy, or accident and health insurance policy and any annuity contract, endowment insurance contract or supplemental insurance contract.
b.
(1) Proceeds may be made payable to a trustee under a trust agreement or declaration of trust in existence on the date of such designation, and identified in such designation. Such proceeds shall be paid to such trustee and held and disposed of in accordance with the terms of such trust agreement or declaration of trust, including any written amendments thereto in existence on the date of the death of the insured, employee or participant. It shall not be necessary to the validity of any such trust agreement or declaration of trust that it have a trust corpus other than the right of the trustee as beneficiary to receive such proceeds.
(2) Proceeds may be made payable to a trustee of a trust to be established by will. Upon issuance of a decree qualifying a trustee so named, such proceeds shall be payable to the trustee to be held and disposed of in accordance with the terms of such will as a testamentary trust. A designation which in substance names as such beneficiary the trustee under the will of the insured, employee or participant, shall be taken to refer to the will of such person actually admitted to probate, whether executed before or after the making of such designation.
c. Such Proceeds may be Payable in More than One Installment. If no qualified trustee claims such proceeds from the insurer or other payor within 18 months after the death of the insured, employee or participant, or if satisfactory evidence is furnished to the insurer or other payor within such period showing that there is or will be no trustee to receive such proceeds, such proceeds shall be paid by the insurer or other payor to the personal representative or assigns of the insured, employee or participant, unless otherwise provided by agreement with the insurer or other payor during the lifetime of the insured, employee or participant.
d. Except to the extent otherwise provided by the trust agreement, declaration of trust or will, proceeds received by the trustee shall not be subject to the debts of the insured, employee or participant, to any greater extent than if such proceeds were payable to the beneficiaries named in the trust; and for all purposes, including the succession and transfer tax, they shall not be deemed payable to or for the benefit of the estate of the insured, employee or participant.
e. Proceeds so held in trust may be commingled with any other assets which may properly become part of such trust.
Section 2. Bonds of Testamentary Trustees
When a testator has appointed a trustee to execute a trust created by his will, the Probate Court shall, unless otherwise provided in the will, require of such trustee a probate bond. If any trustee refuses to give such bond, the refusal shall be deemed a refusal to accept or perform the duties of such trust; but the bond without surety of any public or charitable corporation or cemetery association to which any bequest or devise is made in trust shall be deemed sufficient. Whenever by any will it is provided that the trustee or trustees thereunder shall not be required to give a probate bond, or shall be required to give a bond which in the judgment of the Probate Court having jurisdiction is insecure or inadequate, the court may, upon the application of any person interested, require such trustee or trustees at any time to furnish a probate bond in accordance with Chapter 3, Section 14.
Section 3. Vacancies in Office of Trustee
When any person has been appointed trustee of any estate, or holds as trustee the proceeds of any estate sold, and no provision is made by law or by the instrument under which his appointment is derived for the contingency of his death or incapacity or for his refusal to accept such trust or for his resignation of such trust, or when a trust has been created by will and no trustee has been appointed in the will or when more than one trustee has been appointed and thereafter a trustee so appointed dies, becomes incapable, refuses to accept or resigns such trust, the Probate Court may, on the happening of any such contingency, appoint some suitable person to fill such vacancy, taking from him a probate bond, unless in the case of a will it is otherwise provided therein, in which case the provisions of Section 2 of this Chapter shall apply.
Section 4. Legal Title Vests in Trustee Appointed to Fill Vacancy
When the legal title to any property has vested in a trustee and the trusteeship has become vacant, such legal title shall vest in his successor immediately upon his appointment and qualification.
Section 5. Foreign Trustee's Custody of Trust Estate. Jurisdiction of Probate
Court over Trusts Created by Nondomiciliaries
a. When any person not a resident of tribal lands is the owner of a life estate or income during life in any personal property on tribal lands that may thereafter be converted into money, and the child or children of such life tenant or person entitled to such life use or income, residing in the same state as such life tenant or person entitled to such life use or income, are entitled to the remainder upon the termination of such life estate, life use or income, such life tenant having procured the appointment of a trustee or other legal custodian of the property in which he has such interest under the laws of the place of his residence, such custodian may apply in writing to the Probate Court for the possession and removal of such property. In such application the trustee or custodian shall allege that he has been legally appointed such custodian in the jurisdiction in which such life tenant resides, and that he has therein given a probate bond valid according to the requirements of such jurisdiction, and security thereon, or an increase in an existing bond and security, in an amount equal to the value of all such estate of such person to be removed from this state. Such bond and the decree of the court appointing such custodian shall provide that if the child or children of such life tenant are for any reason unable to take or receive the property upon the termination of the life estate or estate aforesaid, it is to be held and paid over by such custodian to such persons as the Probate Court in this state ordering such removal directs. Upon such custodian filing for record in the Probate Court an exemplified copy of the record of the court by which he was appointed, it shall, after a hearing upon such notice as the court orders to the person having such estate in custody and after proof that all known debts against it on the reservation have been paid or satisfied, appoint the applicant to be guardian, conservator or trustee without further bonds, and authorize the person having such estate in his custody to deliver it to the applicant, who may demand, sue for and recover it and remove it from the reservation.
b. Any one or more of the vested beneficial owners of interests established by a testamentary transfer of personal property wherever situated, in trust or under custodianship established and administered outside of the reservation, who are residents of the reservation may petition the Probate Court if any of such beneficial owners reside on the reservation to assume jurisdiction of such trust or custodianship. In the petition, such beneficial owner or owners shall allege that it would be in the best interest of some or all of such beneficial owners and not adverse to any of such owners for the trust or custodianship to be administered in the Probate Court or that all such beneficial owners consent to the administration of the trust or custodianship in the Probate Court. The Probate Court, after hearing with notice as it directs, including notice to any Court having jurisdiction over the trust or custodianship, upon written consent of all such beneficial owners or satisfaction that the allegations in the petition are true and upon proof that such transfer is not prohibited by law, may assume jurisdiction. If a Probate bond is required under the laws of the state in which the transferring court is located on the reservation, such bond shall be given to the Probate Court prior to the assumption of jurisdiction by such court. Upon transfer and assumption of jurisdiction and administration of such trust or custodianship to the reservation, the record shall be established in the Probate Court as if the estate were being originally established for administration on tribal lands and the provisions of the tribal laws shall govern the trust or custodianship and its administration.
Section 6. Appointment of Trustee When person has Disappeared. Trustee's
Rights and Duties. Procedure if Person Reappears
a. When any Mashantucket Pequot Tribal Member, domiciled on tribal lands and having property has disappeared so that after diligent search his whereabouts cannot be ascertained, the Probate Court, upon the application of the spouse, or a relative, creditor or other person interested in the property of such person, shall, after public notice and a hearing thereon, appoint a trustee of the property of such person.
b. Diligent search shall be deemed to have been made for any person who has disappeared while serving with the armed forces when such person has been reported or listed as missing, missing in action, interned in a neutral country or beleaguered, besieged or captured by an enemy.
c. Such trustee, upon giving a probate bond, shall have charge of such property, and he shall have the same powers, duties and obligations as a conservator of the estate of an incapable person. With the approval of the Probate Court, such trustee may use any portion of the income or principal of such property for the support of the spouse and minor children of such person.
d. Upon its own motion or upon the application of any interested person, the Probate Court may, after public notice and a hearing thereon, remove, discharge, require an accounting from, or appoint a successor to, such trustee.
e. The Probate Court may continue such trustee in office until satisfactory proof of the death of such person is furnished, until proceedings are taken to settle his estate on the presumption of his death under the provisions of Chapter 6, Section 28, or for a period of seven years from the time of the disappearance of such person if he remains unheard of.
f. In case of the reappearance of such person, the Probate Court shall, on his application, after hearing and public notice thereof, order the restoration of such property to the person entitled thereto and the discharge of such trustee, after acceptance of the trustee's account.
Section 7. Suspension of Fiduciary Powers During Armed Forces Service
a. When any fiduciary of any trust other than a testamentary trust is engaged in service in the armed forces, which prevents his giving the necessary attention to his duties as the fiduciary, the Probate Court, upon petition of the fiduciary or any person interested in such estate, may, upon such notice as the court deems suitable and after hearing, order the suspension of the powers and duties of the fiduciary for the period of such service and until the further order of the court.
b. The Probate Court may appoint a substitute fiduciary to serve for the period of suspension whether or not there remains any fiduciary to exercise the powers and duties of the fiduciary who is in such service. Said court may decree that the ownership and title to the trust res shall vest in the substitute fiduciary or co-fiduciary or both and that the duties and such of the powers and discretions as are not personal to the fiduciary may be exercised by the co-fiduciary or substitute fiduciary and may make such further orders as said court deems advisable for the proper protection of such fund or estate.
c. The Rules of Court with respect to judgments under the Selective Service Act shall not apply to actions under this Section.
d. Upon a petition therefor, the court may order the reinstatement of the fiduciary when his service in the armed forces has terminated.
Section 8. Income From Property Acquired by Trustee by Conveyance or Foreclosure
When Mortgage Formerly held by Trustee
In any case in which a trustee holds a mortgage upon property for the benefit of one or more tenants for life or limited term, with remainder over to another or others, and such trustee acquires title to such property by conveyance or foreclosure, such acquired property shall be a principal asset in lieu of such mortgage, and such tenant or tenants for life or limited term shall be entitled to the net income from such acquired property from the date of its acquisition.
Section 9. Distribution by Testamentary Trustee upon Completion of Trust
The trustee of any testamentary trust which has terminated may, unless the will creating the trust otherwise directs, after settling his final account, deliver the property remaining in his hands to the remainderman upon the order of the Probate Court, without returning the same to the estate of the decedent.
Section 10. Distribution of Assets of Inoperative Trust
When the facts at the time of distribution from an estate to a trust or from a testamentary trust to a successive trust are such that no trust would be operative under the terms of the instrument creating such trust or successive trust because of the death of the life tenant, or because the beneficiary has reached a stipulated age, or for any other reason, the fiduciary of such estate or prior trust may distribute, with the approval of the Probate Court having jurisdiction, directly from the estate or prior trust to the remaindermen of such trust, the corpus of such trust and any income earned during the period of estate administration or administration of the prior trust and distributable to such remaindermen, without the interposition of the establishment of such trust or successive trust.
Section 11. Settlement of Trust Estate when Beneficiary has been Absent Seven
Years
The trustee of any trust for the benefit of any person who has been absent from his home and unheard of for seven years or more may settle his account as such trustee in the Probate Court. Upon the order of the court, the trustee shall distribute such trust estate to the persons entitled to the remainder thereof as determined by the court, and the trustee shall not thereafter be liable to any such absent beneficiary, his heirs, executors, administrators or assigns in any action for such trust estate or any interest therein or income thereof. A person shall not be entitled to receive any portion of such estate from the trustee until such person has filed in the Probate Court a bond with surety to the acceptance of the court, payable to the Mashantucket Pequot Tribal Nation, conditioned to return such trust estate to the trustee or his successor on the reappearance of the person presumed to be dead within 13 years from the date of such order authorizing distribution. After the expiration of such 13 year period, such person entitled to the remainder shall not be liable to any such absent beneficiary, his heirs, executors, administrators or assigns in any action for such trust estate or any interest therein or income thereof.
Section 12. Termination of Small Trusts
a. Except as otherwise provided by the trust or Chapter 7, Section 27 with respect to charitable trusts, the Probate Court under this Section may terminate a trust, in whole or in part, on application therefor by the trustee, by any beneficiary entitled to income from the trust, or by such beneficiary's legal representative, after reasonable notice to all beneficiaries who are known and in being and who have vested or contingent interests in the trust, and after holding a hearing, if the court determines that all of the following apply:
(1) The continuation of the trust is:
(a) uneconomic when the costs of operating the trust, probable income and other relevant factors are considered; or
(b) not in the best interest of the beneficiaries;
(2) the termination of the trust is equitable and practical; and
(3) the current market value of the trust does not exceed the sum of $40,000.
b. If the Probate Court orders termination of the trust, in whole or in part, it shall direct that the principal and undistributed income be distributed to the beneficiaries in such manner as the Probate Court determines is equitable. The Probate Court may also make such other order as it deems necessary or appropriate to protect the interests of the beneficiaries.
c. No trust may be terminated over the objection of its settlor or where the interest of the beneficiaries cannot be ascertained. The provisions of this Section shall not apply to spendthrift trusts.
d. The Probate Court may terminate a testamentary trust pursuant to this Section if the Probate Court has jurisdiction over the accounts of the testamentary trustee. The Probate Court may terminate an inter vivos trust pursuant to this Section if the trustee or settlor is a Mashantucket Pequot tribal member and is domiciled on tribal lands.
Section 13. Tribal Court Jurisdiction to Reform Instrument to Ensure Allowance
of Marital Deduction. Qualified Domestic Trust
a. If any marital deduction would not be allowed by reason of Section 2056(d)(1) of the Internal Revenue Code of 1986 with respect to any interest in property passing under any will, trust agreement or other governing instrument because such interest fails to comply with the requirements of Sections 2056(d)(2)(A) and 2056A(a) of said Code, the tribal court shall have jurisdiction over any action brought to reform such will, trust agreement or other governing instrument of comply with those requirements so as to allow a marital deduction under Section 2056(a) of said Code. All references contained in this Section to any Section of the Internal Revenue Code of 1986 shall mean that Section of the Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as from time to time amended.
b. The tribal court shall be empowered to reform any such will, trust agreement or other governing instrument to the extent necessary to ensure the allowance of the marital deduction described in subsection (a) of this Section.
c. Any reformation of any will, trust agreement or other governing instrument in accordance with the provisions of this Section shall be effective whether or not a disclaimer has been filed within the period of time specified in Chapter 11, Sections 1 to 5, inclusive.
Section 14. Statutory Rule Against Perpetuities
a. A non-vested property interest is invalid unless:
(1) when the interest is created, it is certain to vest or terminate no later than 21 years after the death of an individual then alive; or
(2) the interest either vests or terminates within 90 years after its creation.
b. A general power of appointment not presently exercisable because of a condition precedent is invalid unless:
(1) when the power is created, the condition precedent is certain to be satisfied or become impossible to satisfy no later than 21 years after the death of an individual then alive; or
(2) the condition precedent either is satisfied or becomes impossible to satisfy within 90 years after its creation.
c. A non-general power of appointment or a general testamentary power of appointment is invalid unless:
(1) when the power is created, it is certain to be irrevocably exercised or otherwise to terminate no later than 21 years after the death of an individual then alive; or
(2) the power is irrevocably exercised or otherwise terminates within 90 years after its creation.
d. In determining whether a non-vested property interest or a power of appointment is valid under subdivision (1) of subsection (a), (b), or (c) of this Section, the possibility that a child will be born to an individual after the individual's death is disregarded.
e. If, in measuring a period from the creation of a trust or other property arrangement, language in a governing instrument:
(1) seeks to disallow the vesting or termination of any interest or trust beyond;
(2) seeks to postpone the vesting or termination of any interest or trust until; or
(3) seeks to operate in effect in any similar fashion upon, the later of
(a) the expiration of a period of time not exceeding 21 years after the death of the survivor of specified lives in being at the creation of the trust or other property arrangement; or
(b) the expiration of a period of time that exceeds or might exceed 21 years after the death of the survivor of lives in being at the creation of the trust or other property arrangement, that language is inoperative to the extent it produces a period of time that exceeds 21 years after the death of the survivor described in subparagraph (a) of this subsection. Nothing in this subsection shall affect the validity of the other provisions of the trust or other property arrangement or of the governing instrument.
Section 15. When Non-Vested Property Interest or Power of Appointment Created
a. Except as provided in subsections (b) and (c) of this Section and in subsection (a), of Section 17 of this Chapter, the time of creation of a non-vested property interest or a power of appointment is determined under general principles of property law.
b. For purposes of Sections 14 to 17 of this Chapter, inclusive, if there is a person who alone can exercise a power created by a governing instrument to become the unqualified beneficial owner of:
(1) a non-vested property interest; or
(2) a property interest subject to a power of appointment described in subsections (b) or (c) of Section 14 of this Chapter, the non-vested property interest or power of appointment is created when the power to become the unqualified beneficial owner terminates; or
(3) for purposes of Sections 14 to 17 of this Chapter, inclusive, a non-vested property interest or a power of appointment arising from a transfer of property to a previously funded trust or other existing property arrangement is created when the non-vested property interest or power of appointment in the original contribution was created.
Section 16. Reformation
Upon the petition of an interested person, the court shall reform a disposition in the manner that most closely approximates the transferor's manifested plan of distribution and is within the 90 years allowed by subdivision (2) of subsections (a), (b) or (c) of Section 14 of this Chapter if a non-vested property interest or a power of appointment becomes invalid under Section 14 of this Chapter: (1) a class gift is not but might become invalid under Section 14 of this Chapter and the time has arrived when the share of any class member is to take effect in possession or enjoyment; or (2) a non-vested property interest that is not validated by subdivision (1) of subsection (a) of Section 14 of this Chapter can vest but not within 90 years after its creation.
Section 17. Exclusions from Statutory Rule Against Perpetuities
The provisions of Section 14 of this Chapter do not apply to:
a. A non-vested property interest of a power of appointment arising out of a non-donative transfer, except a non-vested property interest or a power of appointment arising out of
(1) premarital or post-marital agreement;
(2) separation or divorce settlement;
(3) spouse's election;
(4) similar arrangement arising out of a prospective, existing or previous marital relationship between the parties;
(5) contract to make or not to revoke a will or trust;
(6) contract to exercise or not to exercise a power of appointment;
(7) transfer in satisfaction of a duty of support; or
(8) reciprocal transfer.
b. A fiduciary's power relating to the administration or management of assets, including the power of a fiduciary to sell, lease or mortgage property, and the power of a fiduciary to determine principal and income;
c. A power to appoint a fiduciary;
d. A discretionary power of a trustee to distribute principal before termination of a trust to a beneficiary having an indefeasible vested interest in the income and principal;
e. A non-vested property interest held by a charity, government or governmental agency or subdivision, if the non-vested property interest is preceded by an interest held by another charity, government or governmental agency or subdivision;
f. A non-vested property interest in a power of appointment with respect to a trust or other property arrangement forming part of a pension, profit-sharing, stock bonus, health, disability, death benefit, income deferral or other current or deferred benefit plan for one or more employees, independent contractors or their beneficiaries or spouses, to which contributions are made for the purpose of distributing to or for the benefit of the participants or their beneficiaries or spouses the property, income or principal in the trust or other property arrangement, except a non-vested property interest or a power of appointment that is created by an election or a participant or a beneficiary or spouse; or
g. A property interest, power of appointment or arrangement that was not subject to the common-law rule against perpetuities or is excluded by another statute of this State.
Section 18. "Majority" Defined for Trusts Executed prior to October
1, 1972
Whenever the word "majority" is used in a will or trust instrument executed prior to October 1, 1972, it shall be construed to mean a person who has attained the age of 21.
Section 19. Rule Against Perpetuities
"Second look" doctrine. In applying the rule against perpetuities to an interest in property created before October 1, 1989, limited to take effect at or after the termination of one or more life estates in, or lives of, persons in being when the period of said rule commences to run, the validity of the interest shall be determined on the basis of facts existing at the termination of such one or more life estates or lives. For the purpose of this Section, an interest which must terminate not later than the death of one or more persons is a life estate although it may terminate at an earlier time.
Section 20. Reduction of Age Contingency to Preserve Interest
If an interest in property created before October 1, 1989, would violate the rule against perpetuities as modified by Section 19 of this Chapter because such interest is contingent upon any person attaining or failing to attain an age in excess of 21, the age contingency shall be reduced to 21 as to all persons subject to the same age contingency.
Section 21. Exemption of Certain Trusts Funds from the Rule Against Perpetuities
Any trust (a) created by the Mashantucket Pequot Tribal Nation, or (b) created by an employer as part of a stock bonus, pension, disability, death benefit or profit-sharing plan for the benefit of some or all employees, to which contributions are made by the employer or employees or both, for the purpose of distributing to the employees the earnings or the principal, or both earnings and principal, of the funds held in trust, shall not be deemed to be invalid as violating any existing law or rule of law against perpetuities or suspension of the power of alienation of the title to the property. Any such trust may continue for such time as may be necessary to accomplish the purposes for which it has been created. The income arising from any property held in any such trust may be permitted to accumulate in accordance with the terms of such trust and the plan of which such trust forms a part for such time as may be necessary to accomplish the purposes for which such trust has been created. Any rule of law against perpetuities or suspension of the power of alienation of the title to property shall not invalidate any such trust.
Section 22. Charitable Trusts
Any charitable trust or use created in writing, or any public and charitable trust or use for aiding and assisting any person or persons to be selected by the trustees of such trust or use to acquire education, shall forever remain to the uses and purposes to which it has been granted according to the true intent and meaning of the grantor and to no other use.
Section 23. Charitable Uses Determined by Trustee, When
Any person may, by will, deed or other instrument, give, devise or bequeath property, real or personal or both, to any trustee or trustees, and may provide in such instrument that the property so given, devised or bequeathed shall be held in trust and the income or principal applied in whole or in part for any charitable purpose. A donor or testator shall not be required to designate in such will, deed or other instrument the particular charitable purpose or class of purposes for which the property shall be used or the income applied. Any such gift, devise or bequest shall be valid and operative, provided the donor or testator shall give to the trustee or trustees thereof or to any other person or persons, the power to select, from time to time and in such manner as such donor or testator may direct, the charitable purpose or purposes to which such property or the income thereof shall be applied; and such gift, devise or bequest, accompanied by such power of selection, shall not be void by reason of uncertainty.
Section 24. Gifts to Charitable Community Trust
Any person may incorporate by reference in any will, deed or other instrument, the terms, conditions, trusts, uses or purposes of any existing written or printed resolution, declaration or deed of trust passed by any corporation or executed by any person whereby there is established or is attempted to be established any charitable community trust. Any gift, devise or bequest so given to any person or corporation, in trust for any use or purpose of such charitable community trust, shall be valid and effectual notwithstanding that the terms, conditions, uses and purposes thereof are not otherwise recited in such deed, will or other instrument than by such reference; and the property so given to such person or corporation shall be used for the purposes and upon the terms, conditions and trusts contained in such resolution, declaration or deed of trust establishing such community trust, so far as the same do not conflict with the intent of the donor or testator as expressed in such will, deed or other instrument. Any gift, devise or bequest so made shall not be void for uncertainty or invalid because such resolution, declaration or deed of trust establishing such community trust was not executed by the testator or donor in accordance with statutory provisions, provided such will, deed or other instrument is executed in accordance with such provisions.
Section 25. Community Trustees to Render Annual Accounts. Hearing on Adjustment
and Allowance
a. The trustee or trustees of any charitable community trust shall annually render an account under oath to the Probate Court. The account shall include an inventory of the estate held by such trustee or trustees and shall state the manner in which the principal of such fund is invested and the items of income and expenditure.
b. The Probate Court shall direct the notice, if any, which shall be given of the hearing upon the adjustment and allowance of any such account. The court may adjust and allow the account and make any order necessary to secure the execution of the duties of such trustee or trustees, subject to appeal as provided for appeals from orders of the Probate Court.
Section 26. Probate Court Jurisdiction to Reform Instruments to Federal Tax
Requirements
a. If any deduction under Section 170, Section 2055 or Section 2522 of the Internal Revenue Code of 1986 is not allowable with respect to any interest in property passing under any will, trust agreement or other governing instrument to a person, or for a use, described in Section 170(c), Section 2055(a) or Section 2522(a) and (b) of said code because such interest shall fail to comply with the requirements of Section 170(f)(2), Section 2055(e)(2) or Section 2522(c)(2) of said code, the Probate Court shall have jurisdiction over any action brought to reform such will, trust agreement or other governing instrument in accordance with the provisions of Section 170(f)(7), Section 2055(e)(3) or Section 2522(c)(4) of said code so that such deduction may be allowed under the applicable provisions of said code. All references contained in this Section to any Section of the Internal Revenue Code of 1986 shall mean that Section of the Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as from time to time amended.
b. The Probate Court shall be empowered to reform any such will, trust agreement or other governing instrument only to the extent necessary in order to ensure the allowance of any deduction described in subsection (a) of this Section, and only to the extent the court finds that such reformation is consistent with the original intent of the testator or donor.
c. This Section shall not be construed to effect a change in any dispositive provisions of the governing instrument as provided in Section 22 of this Chapter.
d. Any reformation of any will, trust agreement or other governing instrument in accordance with the provisions of this Section shall be effective whether or not a disclaimer has been filed within the period of time specified in Chapter 10, Sections 1 to 5, inclusive.
Section 27. Termination of Charitable Trusts
a. As used in this Section:
(1) "Charitable Beneficiary" and "Charitable Entity" shall include, without limitation, towns, ecclesiastical society and cemetery associations owning or controlling the operation of a cemetery or burial ground;
(2) "Charitable Trust" shall mean a trust for the benefit of one or more charitable beneficiaries.
b. In any case where the current market value of the assets of a testamentary or inter vivos charitable trust is less than $65,000 any trustee thereof, any charitable beneficiary specifically designated in the governing instrument or the general counsel of the Tribe may petition the Probate Court for an order terminating the trust. If such a trust has not been under the jurisdiction of the Probate Court prior to any such petition, the petition shall only be brought if the grantor, if living, or any trustee is a member of the Tribe and resides on tribal lands. Upon receipt of such a petition, the court shall order a hearing and cause notice thereof to be given to the general counsel, the trustees, the grantor of the trust, if living, and any charitable beneficiary of the trust specifically designated in the governing instrument. If at such a hearing the court determines that continuation of the trust is uneconomic when the costs of operating the trust, probable income and other relevant factors are considered or not in the best interest of the beneficiaries, the court may order termination of the trust and distribution of the trust assets to any charitable beneficiary specifically designated in the governing instrument or, in the event no such beneficiary exists, to such other charitable trusts or charitable entities, including any community trust or foundation, as the court may determine will fulfill the charitable purposes of the trust being so terminated.
Section 28. Definitions
As used in Sections 28 to 36 of this Chapter, inclusive:
a. "Institution" means an incorporated or unincorporated organization organized and operated exclusively for educational, religious, charitable or other eleemosynary purposes, a governmental organization to the extent that it holds funds exclusively for any of these purposes, or a charitable community trust as described in Section 24 of this Chapter;
b. "Institutional Fund" means a fund held by an institution for its exclusive use, benefit or purposes, but does not include:
(1) a fund held for an institution by a trustee that is not an institution, other than a fund which is held for a charitable community trust; or
(2) a fund in which a beneficiary that is not an institution has an interest, other than possible rights that could arise upon violation or failure of the purposes of the fund;
c. "Endowment Fund" means an institutional fund, or any part thereof, not wholly expendable by the institution on a current basis under the terms of the applicable gift instrument;
d. "Governing Board" means the body responsible for the management of an institution or of an institutional fund;
e. "Historic Dollar Value" means the aggregate fair value in dollars of:
(1) an endowment fund at the time it became an endowment fund;
(2) each subsequent donation to the fund at the time it is made; and
(3) each accumulation made pursuant to a direction in the applicable gift instrument at the time the accumulation is added to the fund. The determination of historic dollar value made in good faith by the institution is conclusive;
f. "Gift Instrument" means a will, deed, grant, conveyance, agreement, memorandum, writing or other governing document, including the terms of any institutional solicitations from which an institutional fund resulted, under which property is transferred to or held by an institution as an institutional fund.
Section 29. Expenditure of Net Appreciation, Standards
The governing board may appropriate for expenditure for the uses and purposes for which an endowment fund is established so much of the net appreciation, realized and unrealized, in the fair value of the assets of an endowment fund over the historic dollar value of the fund as is prudent under the standard established by Section 35 of this Chapter. This Section does not limit the authority of the governing board to expend funds as permitted under other law, the terms of the applicable gift instrument or the charter of the institution.
Section 30. Exception and Restriction on Expenditure of Net Appreciation.
Construction
Section 29 of this Chapter does not apply if the applicable gift instrument indicates the donor's intention that net appreciation shall not be expended. A restriction upon the expenditure of net appreciation may not be implied from a designation of a gift as an endowment, or from a direction or authorization in the applicable gift instrument to use only "income", "interest", "dividends" or "rents, issues or profits", or "to preserve the principal intact", or a direction which contains other words of similar import.
Section 31. Accumulation of Annual Net Income, Standards
The governing board may accumulate so much of the annual net income of an endowment fund as is prudent under the care established by Section 35 of this Chapter and may hold any or all of such accumulated income in an income reserve for subsequent expenditure for the uses and purposes for which such endowment fund is established or may add any or all of such accumulated income to the principal of such endowment fund as is prudent under said standard. This Section does not limit the authority of the governing board to accumulate income or to add the same to principal of an endowment fund as permitted under other law, the terms of the applicable gift instrument or the charter of the institution.
Section 32. Exception and Restriction of Accumulation of Annual Net Income.
Construction
Section 31 of this Chapter does not apply if and to the extent that the applicable gift instrument indicates the donor's intention that income of an endowment fund shall not be accumulated or shall not be added to the principal of the fund. A restriction against accumulation or addition to principal may not be implied from a designation of a gift as an endowment, or from a direction or authorization in the applicable gift instrument to apply to the uses and purposes of the fund the "income", "interest", "dividends", "currently expendable income" or "rent, issues or profits", or a direction which contains other words of similar import.
Section 33. Investment of Institutional Funds
In addition to an investment otherwise authorized by law or by the applicable gift instrument, and without restriction to investments a fiduciary may make, the governing board, subject to any specific limitations set forth in the applicable gift instrument or in the applicable law other than law relating to investments by a fiduciary, may: (1) invest and reinvest an institutional fund in any real or personal property deemed advisable by the governing board, whether or not it produces a current return, including mortgages, stocks, bonds, debentures and other securities of profit or nonprofit corporations, shares in or obligations of associations, partnerships or individuals, and obligations of any government or subdivision or instrumentality thereof; (2) retain property contributed by a donor to an institutional fund for as long as the governing board deems advisable; (3) include all or any part of an institutional fund in any pooled or common fund maintained by the institution; and (4) invest all or any part of an institutional fund in any other pooled or common fund available for investment, including shares or interests in regulated investment companies, mutual funds, common trust funds, investment partnerships, real estate investment trusts, or similar organizations in which funds are commingled and investment determinations are made by persons other than the governing board.
Section 34. Delegation of Powers of Investment
Except as otherwise provided by the applicable gift instrument or by applicable law relating to governmental institutions or funds, the governing board may:
a. delegate to its committees, officers or employees of the institution or the fund, or agents, including investment counsel, the authority to act in place of the board in investment and reinvestment of institutional funds;
b. contract with independent investment advisers, investment counsel or managers, banks or trust companies so to act; and
c. authorize the payment of compensation for investment advisory or management services.
Section 35. Standards Applicable to Actions of Governing Board
In the administration of the powers to appropriate appreciation, to make and retain investments and to delegate investment management of institutional funds, member of a governing board shall exercise ordinary business care and prudence under the facts and circumstances prevailing at the time of the action or decision. In so doing they shall consider long and short term needs of the institution in carrying out its educational, religious, charitable or other eleemosynary purposes, its present and anticipated financial requirements, expected total return on its investments, price level trends and general economic conditions.
Section 36. Release of Restriction in Gift Instrument: Written Consent, Court
Order. Limitations. Doctrine of Cy-Pres Applicable
a. With the written consent of the donor, the governing board may release, in whole or in part, a restriction imposed by the applicable gift instrument on the use or investment of an institutional fun;
b. If written consent of the donor cannot be obtained by reason of his death, disability, unavailability or impossibility of identification, the governing board may apply, in the name of the institution, to the Probate Court for release of a restriction imposed by the applicable gift instrument on the use or investment of an institutional fund. The general counsel of the Tribe shall be notified of the application and shall be given an opportunity to be heard. If the court finds that the restriction is obsolete, inappropriate or impracticable, it may by order release the restriction in whole or in part. A release under this subsection may not change an endowment fund to a fund that is not an endowment fund;
c. A release under this Section may not allow a fund to be used for purposes other than the educational, religious, charitable or other eleemosynary purposes of the institution affected;
d. This Section does not limit the application of the doctrine of cy-pres or approximation.
Legislative History
TCR110800-04 of 05, amends II M.P.T.L. ch. 7, §21, which establishes exemptions
from the rule against perpetuities for certain trusts created by the Mashantucket
Pequot Tribal Nation.
rev. 110800
CHAPTER 8. MASHANTUCKET PEQUOT UNIFORM GIFTS TO MINORS ACT
Section 1. Definitions
As used in Sections 1 to 9 of this Chapter, inclusive, unless the context otherwise requires:
a. "Adult Person" means a person who has attained the age of 21 years;
b. "Bank" means a bank or credit union owned or managed by the Tribe or its employees, a state bank and trust company, national banking association or savings bank;
c. "Broker" means a person lawfully engaged in the business of effecting transactions in securities for the account of others. The term includes a bank which effects such transactions and also includes a person lawfully engaged in buying and selling securities for his own account, through a broker or otherwise, as a part of a regular business;
d. "Court" means the Probate Court of the Tribe;
e. "The Custodial Property" includes:
(1) all securities, money, life insurance and endowment policies, annuity contracts and the proceeds of life insurance and endowment policies and annuity contracts, interests in general and limited partnerships, tangible personal property, under the supervision of the same custodian for the same minor as a consequence of a gift or gifts made to the minor in a manner prescribed in Sections 1 to 9 of this Chapter, inclusive;
(2) the income from the custodial property; and
(3) the proceeds, immediate and remote, from the sale, exchange, conversion, investment, reinvestment, surrender or other disposition of such securities, money, life insurance or endowment policies, annuity contracts, the proceeds from life insurance and endowment policies and annuity contracts, interests in general and limited partnerships, and interests in tangible personal property.
f. "Custodian" means a person so designated in a manner prescribed in Sections 1 to 9 of this Chapter, inclusive;
g. A "Guardian" of a minor includes the general guardian, guardian, tutor or curator of his property, estate or person;
h. "Issuer" means a person who places or authorizes the placing of his name on a security, other than as a transfer agent, to evidence that it represents a share, participation or other interest in his property or in an enterprise or to evidence his duty or undertaking to perform an obligation evidenced by the security, or who becomes responsible for or in place of any such person;
i. "Legal Representative" of a person means his executor or the administrator, general guardian, guardian, committee, conservator, tutor or curator of his property or estate;
j. A "Member" of a "Minor's Family" means any of the minor's parents, stepparents, grandparents, brothers, sisters, uncles and aunts, whether of the whole blood or the half blood, or by or through legal adoption;
k. A "Minor" is a person who has not attained the age of 21 years;
l. A "Security" includes any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in an oil, gas or mining title or lease or in payments out of production under such a title or lease, collateral trust certificate, transferable share, voting trust certificate or, in general, any interest or instrument commonly known as a security, or any certificate of interest or participation in, any temporary or interim certificate, receipt or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the foregoing. The term does not include a security of which the donor is the issuer. A security is in "registered form" when it specifies a person entitled to it or to the rights it evidences and its transfer may be registered upon books maintained for that purpose by or on behalf of the issuer;
m. "Transfer Agent" means a person who acts as authenticating trustee, transfer agent, registrar or other agent for an issuer in the registration of transfers of its securities or in the issue of new securities or in the cancellation of surrendered securities;
n. "Trust Company" means a bank authorized to exercise trust powers;
o. "Savings and Loan Association" means savings and loan associations and federal savings and loan associations;
p. "Life Insurance and Endowment Policies and Annuity Contracts" means only life insurance and endowment policies and annuity contracts on the life of a minor or a member of the minor's family as defined in subsection (j) of this Section;
q. "Credit Union" means a tribal, state or federally chartered credit union.
Section 2. Methods of Making Gift
a. An adult person may, during his lifetime, make a gift of a security, an interest in a general partnership, an interest in a limited partnership, money, a life insurance policy, an endowment policy, an annuity contract, the proceeds of life insurance or endowment policies and annuity contracts, or tangible personal property to a person who is a minor on the date of the gift:
(1) If the subject of the gift is a security in registered form, by registering it in the name of the donor, another adult person or a trust company, followed, in substance, by the words: "As custodian for .... (name of minor) under the Mashantucket Pequot Uniform Gifts to Minors Act";
(2) If the subject of the gift is a security not in registered form, by delivering it to an adult person other than the donor or to a trust company, accompanied by a statement of gift in the following form, in substance, signed by the donor and the person designated as custodian: "GIFT UNDER THE MASHANTUCKET PEQUOT UNIFORM GIFTS TO MINORS ACT: I, .... (name of donor), hereby deliver to .... (name of custodian) as custodian for .... (name of minor) under the Mashantucket Pequot Uniform Gifts to Minors Act, the following security(ies): (Insert an appropriate description of the security or securities delivered sufficient to identify it or them) .... (dated) …. (signature of donor) .... (name of custodian) hereby acknowledges receipt of the above described security(is) as custodian for the above minor under the Mashantucket Pequot Uniform Gifts to Minors Act. Dated:.... (signature of custodian)".
(3) If the subject of the gift is money, by paying or delivering it to a broker or a bank, or to a savings and loan association, or a credit union for credit to an account or for purchase of shares in the name of the donor, another adult person or a bank with trust powers, followed, in substance, by the words: "As custodian for .... (name of minor) under the Mashantucket Pequot Uniform Gifts to Minors Act".
(4) If the subject of the gift is a life insurance or endowment policy or an annuity contract, the ownership of the policy or contract shall be registered by the donor of such policy or contract in his own name, in the name of another adult person or a trust company, followed, in substance, by the words: "As custodian for .... (name of minor) under the Mashantucket Pequot Uniform Gifts to Minors Act", and such policy or contract shall be delivered to the person in whose name it is thus registered as custodian. If the policy or contract is registered in the name of the donor, as custodian, such registration shall of itself constitute the delivery required by this subsection. If the subject of the gift is the proceeds of a life insurance or endowment policy or an annuity contract, where the ownership of such policy or contract has not been given, the ownership of such proceeds may be transferred either revocably or irrevocably by merely designating as a primary or contingent beneficiary another adult person or trust company, followed, in substance, by the words: "As custodian for .... (name of minor) under the Mashantucket Pequot Uniform Gifts to Minors Act", and such custodian shall be authorized to claim and receive such proceeds in his capacity as such custodian.
(5) If the subject of the gift is an interest in a general or limited partnership, by delivering an assignment of such interest to the donor in his own name, another adult person or a bank with trust powers, followed, in substance by words: "As custodian for .... (name of minor) under the Mashantucket Pequot Uniform Gifts to Minors Act", and by notifying in writing, the other general partner or partners and the donee of such gift. In the case in which the assignment is made to the donor in his own name, notification to the other general partner or partners shall constitute the delivery required by this subsection.
(6) If the subject of the gift is an interest in tangible personal property, by delivery of an instrument of conveyance to the custody for such minor under the Mashantucket Pequot Uniform Gifts to Minors Act, executed and acknowledged by the donor and specifying that the gift is made subject to said act.
b. An adult person may, by will, make a specific bequest of a security, a general bequest of money, an interest in a general or a limited partnership, one or more articles of tangible personal property or a share of his or her residuary estate to a person who is a minor on the date of the testator's death:
(1) If the subject of the bequest is a security in registered form by directing his executor to register such security in the name of another adult person or a trust company, in the form provided in subsection (g) of Section 4 of this Chapter;
(2) If the subject of the bequest is a security not in registered form, by directing his executor to deliver it to an adult person or to a trust company accompanied by a statement in the following form, in substance, signed by the executor and the person designated as custodian: "SPECIFIC BEQUEST UNDER THE MASHANTUCKET PEQUOT UNIFORM GIFTS TO MINORS ACT: I,.... (name of executor), hereby deliver to .... (name of custodian) as custodian for .... (name of minor) under the Mashantucket Pequot Uniform Gifts to Minors Act, the following security(ies): (Insert an appropriate description of the security or securities delivered sufficient to identify it or them) on behalf of…."
(3) If the subject of the bequest is an interest in a general or a limited partnership, a specific bequest of money, one or more articles of tangible personal property, or a share in the residuary estate, by directing his executor, in the case of an interest in a general or limited partnership, to execute an assignment of such interest in the form provided in subdivision (6) of subsection (a) of this Section and deliver said assignment to said person and to the other general partner or partners, and in the case of a specific bequest of money or of one or more articles of tangible personal property, or a share in the residuary estate, to distribute such money or article or articles of tangible personal property such share under the provisions of subsection (c) of this Section.
c.
(1) If a devise or bequest is distributable by will, the will may state that the devise or bequest is made under the Mashantucket Pequot Uniform Gifts to Minors Act, and unless the testator in his will designates the custodian, who shall be an adult or a bank with trust powers, the testator's personal representative making a distribution of the property shall, subject to any limitations contained within the will, have the power to distribute to an existing custodian or, if none, to a custodian who shall be an adult or a bank with trust powers, selected by the testator's personal representative in accordance with the provisions of Section 7 of this Chapter, and such personal representative shall distribute the subject of the gift or bequest by transferring it in the manner and form provided for in subdivisions (1) to (3), inclusive, of subsection (b) and under this subsection.
(2) If the instrument specifically so provides, any distributions by a trustee or trustees under an inter vivos or testamentary trust instrument of income or principal or both income and principal to a minor may be made to a custodian for such minor under the Connecticut Uniform Gifts to Minors Act; and unless the testator or settlor in his will or trust instrument designated a custodian, who shall be an adult or a bank with trust powers, the trustee or trustees shall, subject to any limitations contained within the will or trust instrument, have the power to distribute to an existing custodian or, if none, to a custodian who shall be an adult or a bank with trust powers selected in accordance with the provisions of Section 7 of this Chapter, and such trustee or trustees shall distribute the subject of the gift or bequest by transferring it in the manner and form provided in subdivisions (1) to (5), inclusive, of subsection (a) of this Section. The provisions of this subsection shall apply to distributions by an executor, trustee or trustees in the same manner as the provisions of subsection (a) apply to any donor making a gift during his lifetime. Any trustee or trustees of an inter vivos trust making any distribution under this subsection may do so without court order.
d. Any gift or bequest made in a manner prescribed in subsection (a) or (b) of this Section may be made to only one minor and only one person may be the custodian. If the custodian named by the testator or settlor predeceases the testator or settlor, or if he refuses or declines to act, or if after being appointed custodian he resigns or is removed, and the testator or settlor has made no provision for a successor custodian, then the successor custodian shall be appointed in accordance with the provisions of Section 7 of this Chapter.
e. A donor who makes a gift to a minor in a manner prescribed in subsection (a) or his executor, trustee or trustees in the case of a gift under subsection (b), shall promptly do all things within his power to put the subject of the gift or bequest in the possession and control of the custodian, but neither the failure of the donor or his executor, trustee or trustees to comply with this subsection, nor the designation by the donor, his executor, trustee or trustees of an ineligible person as custodian, nor renunciation by the person designated as custodian shall affect the consummation of the gift or bequest.
Section 3. Gift or Bequest to be Irrevocable. Rights and Powers Granted Custodian,
Issuers, Transfer Agents, Brokers
a. A gift, devise or bequest made in a manner prescribed in Sections 1 to 9 of this Chapter, inclusive, is irrevocable and conveys to the minor indefeasibly vested legal title to the custodial property given, but no guardian of the minor has any right, power, duty or authority with respect to the custodial property except as provided in said Sections.
b. By making a gift or bequest in a manner prescribed in Sections 1 to 9 of this Chapter, inclusive, the donor incorporates in his gift all the provisions of said Sections and grants to the custodian, and to any issuer, transfer agent, bank, savings and loan association, credit union, broker or third person dealing with a person designated as custodian, the respective powers, rights and immunities provided in said Sections.
Section 4. Powers and Duties of Custodian
a. The custodian shall collect, hold, manage, invest and reinvest the custodial property.
b. The custodian shall pay over to the minor for expenditure by him, or expend for the minor's benefit, so much of or all the custodial property as the custodian deems advisable for the support, maintenance, education and benefit of the minor in the manner, at the time or times, and to the extent that the custodian in his discretion deems suitable and proper, with or without court order, with or without regard to the duty of himself or of any other person to support the minor or his ability to do so, and with or without regard to any other income or property of the minor which may be applicable or available for any such purpose.
c. The court, on the petition of a parent or guardian of the minor or of the minor, if he has attained the age of 12 years, may order the custodian to pay over to the minor for expenditure by him or to expend so much of or all the custodial property as is necessary for the minor's support, maintenance or education.
d. To the extent that the custodial property is not so expended, the custodian shall deliver or pay it over to the minor on his attaining the age of 21 years or, if the minor dies before attaining the age of 21 years, he shall thereupon deliver or pay it over to the estate of the minor.
e. The custodian, notwithstanding statutes restricting investments by fiduciaries, shall invest and reinvest the custodial property in any property described in subsections (a) and (b) of Section 2 of this Chapter, including life insurance and endowment policies on the life of the minor or that of another person in whom the minor has an insurable interest, as would a prudent man of discretion and intelligence who is seeking a reasonable income and the preservation of his capital, except that he may, in his discretion and without liability to the minor or his estate, retain any property given to the minor in a manner prescribed in Sections 1 to 9 of this Chapter, inclusive.
f. The custodian may sell, exchange, convert, surrender or otherwise dispose of custodial property in the manner, at the time or times, for the price or prices and upon the terms he deems advisable. He may vote in person or by general or limited proxy a security which is custodial property. He may consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution or liquidation of an issuer of a security which is custodial property, and to the sale, lease, pledge or mortgage of any property by or to such an issuer, and to any other action by such an issuer. He may execute and deliver any and all instruments in writing which he deems advisable to carry out any of his powers as custodian.
g. The custodian shall register each security which is custodial property and in registered form in the name of the custodian, followed, in substance, by the words: "As custodian for (name of minor) under the Mashantucket Pequot Uniform Gifts to Minors Act." The custodian shall hold all money which is custodial property in an account with a broker or in a bank or savings and loan association or credit union in the name of the custodian, followed, in substance, by the words: "As custodian for (name of minor) under the Mashantucket Pequot Uniform Gifts to Minors Act". The custodian shall keep all other custodial property separate and distinct from his own property in a manner to identify it clearly as custodial property.
h. The custodian shall keep records of all transactions with respect to the custodial property and make them available for inspection at reasonable intervals by a parent or legal representative of the minor or by the minor, if he has attained the age of 12 years.
i. A custodian has, with respect to the custodial property, in addition to the rights and powers provided in this chapter, all the rights and powers which a guardian has with respect to property not held as custodial property.
j. If the subject of the gift is a life insurance or endowment policy or an annuity contract, the custodian:
(1) shall have all the incidents of ownership in such policy or contract which he may hold as custodian, to the same extent as if he were the owner thereof, but only in his fiduciary capacity as custodian. The designated beneficiary of any such policy or contract on the life of a person other than the minor shall be the minor or the custodian, in his fiduciary capacity as custodian and the designated beneficiary of any such policy or contract on the life of the minor may be the minor's spouse, parents, siblings or the minor's estate; and
(2) may pay premiums on the policy or contract out of the custodial property.
Section 5. Reimbursement of Custodian
a. A custodian is entitled to reimbursement from the custodial property for his reasonable expenses incurred in the performance of his duties.
b. A custodian may act without compensation for his services.
c. Unless he is a donor, a custodian may receive from the custodial property reasonable compensation for his services.
d. Except as otherwise provided in Sections 1 to 9 of this Chapter, inclusive, a custodian shall not be required to give a bond for the performance of his duties.
e. A custodian not compensated for his services is not liable for losses to the custodial property unless they result from his bad faith, intentional wrongdoing or gross negligence or from his failure to maintain the standard of prudence in investing the custodial property provided in Sections 1 to 9 of this Chapter, inclusive.
Section 6. Responsibility of Issuer, Transfer Agent, Bank, Life Insurance
Company, Savings and Loan Association, Credit Union, Broker or Other Person
No issuer, transfer agent, bank, life insurance company, savings and loan association, credit union, broker or other person acting on the instructions of or otherwise dealing with any person purporting to act as a donor or in the capacity of a custodian is responsible for determining whether the person designated as custodian by the purported donor or by the custodian or purporting to act as a custodian has been duly designated or whether any purchase, sale or transfer to or by or any other act of any person purporting to act in the capacity of custodian is in accordance with or authorized by Sections 1 to 9 of this Chapter, inclusive, or is obliged to inquire into the validity or propriety under said Sections of any instrument or instructions executed or given by a person purporting to act as a donor or in the capacity of a custodian, or is bound to see to the application by any person purporting to act in the capacity of a custodian of any money or other property paid or delivered to him. No issuer, transfer agent, bank, life insurance company, savings and loan association, broker or other person acting on any instrument of designation of a successor custodian, executed as provided in Section 7 of this Chapter by a minor to whom a gift has been made in a manner prescribed in Sections 1 to 9 of this Chapter, inclusive, and who has attained the age of 12 years, is responsible for determining whether the person designated by the minor as successor custodian has been duly designated, or is obliged to inquire into the validity or propriety under said Sections of the instrument of designation.
Section 7. Successor Custodian. Resignation of Custodian
a. Only an adult or a trust company is eligible to become successor custodian. A donor may designate a successor custodian at the same time as he makes a gift under the provisions of Sections 1 to 9 of this Chapter, inclusive, by executing and dating an "instrument of designation of a successor custodian by a donor" before a subscribing witness other than the successor and delivering a copy of such instrument to such successor and such custodian. Unless a custodian has received such an instrument from the donor, such custodian may designate his successor by executing and dating an "instrument of designation of a successor custodian by a custodian" before a subscribing witness other than the successor. The instrument of designation of a successor custodian by a custodian may but need not contain the resignation of the custodian. If the donor does not so designate a successor custodian at the time of making the initial gift to a particular custodian for a particular minor under said Sections and the custodian does not so designate his successor before he dies or becomes legally incapacitated and the minor has attained the age of 12 years, the minor may designate a successor custodian by executing an "instrument of designation of a successor custodian by the minor donee" before a subscribing witness other than the successor. A successor custodian has all the rights, powers, duties and immunities of a custodian designated in a manner prescribed in said Sections.
b. The designation of the successor custodian as provided in subsection (a) takes effect as to each item of the custodial property when the custodian resigns, dies or becomes legally incapacitated and the custodian or his legal representative:
(1) causes the item, if it is a security in registered form or a life insurance or endowment policy or annuity contract, to be registered, with the issuing insurance company in the case of a life insurance or endowment policy or annuity contract, in the name of the successor custodian followed, in substance, by the words: "As custodian for .... (name of minor) under the Mashantucket Pequot Uniform Gifts to Minors Act"; and
(2) delivers or causes to be delivered to the successor custodian any other item of the custodial property, together with the instrument of designation of the successor custodian or a true copy thereof and any additional instruments required for the transfer thereof to the successor custodian.
c. A custodian who executes an instrument of designation of his successor containing the custodian's resignation as provided in subsection (a) shall promptly do all things within his power to put each item of the custodial property in the possession and control of the successor custodian named in the instrument. The legal representative of a custodian who dies or becomes legally incapacitated shall promptly do all things within his power to put each item of the custodial property in the possession and control of the successor custodian named in an instrument of designation executed as provided in subsection (a) by the custodian or, if none, by the minor if he has attained the age of 12 years, or, if none, in the possession and control of the guardian of the minor if he has a guardian. If the custodian has executed as provided in subsection (a) more than one instrument of designation, his legal representative shall treat the instrument dated on an earlier date as having been revoked by an instrument dated on a later date.
d. If a person designated as custodian or as successor custodian as provided in subsection (a) is not eligible, dies or becomes legally incapacitated before the minor attains the age 21 years and if no successor custodian who is eligible and has not died or become legally incapacitated has been designated as provided in subsection (a), the legally appointed guardian of the property of the minor, if the minor has a legally appointed guardian of his property, shall be successor custodian and, if the minor has no legally appointed guardian of his property, then the legally appointed guardian of the person of the minor, if the minor has a legally appointed guardian of his person, shall be successor custodian, and if the minor has no legally appointed guardian of his property or his person, then the father of the minor shall be successor custodian, unless the minor's parents are separated or divorced and the mother has been awarded custody of the minor by a court or if the minor has no living and legally competent father, then the mother of the minor shall be successor custodian and, if the minor has no legally appointed guardian or living and legally competent parents or parent, a donor, his legal representative, the legal representative of the custodian or an adult member of the minor's family may petition the court for the designation of the successor custodian.
e. A donor, the legal representative of a donor, a successor custodian, an adult member of the minor's family, a guardian of the minor or the minor, if he has attained the age of 12 years, may petition the court that, for cause shown in the petition, the custodian be removed and a successor custodian be designated or, in the alternative, that the custodian be required to give bond for the performance of his duties.
f. Upon the filing of a petition as provided in this Section, the court shall grant an order, directed to such persons and returnable on such notice as the court may require, to show cause why the relief prayed for in the petition should not be granted and, in due course, grant such relief as the court finds to be in the best interests of the minor.
Section 8. Petition for Accounting
a. The minor, if he has attained the age of 12 years, or the legal representative of the minor, an adult member of the minor's family, or a donor or his legal representative may petition the court for an accounting by the custodian or his legal representative.
b. The court, in a proceeding under Sections 1 to 9 of this Chapter, inclusive, or otherwise, may require or permit the custodian or his legal representative to account and, if the custodian is removed, shall so require and order delivery of all custodial property to the successor custodian and the execution of all instruments required for the transfer thereof.
Section 9. Not Exclusive Method of Gift
Sections 1 to 9 of this Chapter, inclusive, shall not be construed as providing an exclusive method for making gifts to minors.
CHAPTER 9. DURABLE POWER OF ATTORNEY
Section 1. Power of Attorney to Survive Disability or Incompetence
a. The subsequent disability or incompetence of a principal shall not revoke or terminate the authority of any person who acts under a power of attorney in a writing executed by the principal, if the writing contains the words "this power of attorney shall not be affected by the subsequent disability or incompetence of the principal," or words of similar import showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's subsequent disability or incompetence; provided the power of attorney is executed and witnessed in the same manner as provided for deeds in the state of Connecticut.
b. If a conservator of the estate of the principal is appointed after the occurrence of the disability or incompetence referred to in subsection (a) of this Section, the power of attorney shall cease at the time of the appointment, and the person acting under the power of attorney shall account to the conservator rather than to the principal.
CHAPTER 10. POWERS OF APPOINTMENT
Section 1. Power of Appointment May be Released; Definitions
a. As used in Sections 1 to 5 of this Chapter, inclusive:
(1) "Power of Appointment" includes all powers which are in substance and effect powers of appointment regardless of the language used in creating them; and
(2) "Release" includes:
(a) an instrument wherein the person who executes it in substance states that he wholly releases, or agrees in no respect to exercise or participate in the exercise of, a power of appointment; and
(b) an instrument wherein the person who executes it in substance states that he releases all right to exercise, or participate in the exercise of, a power of appointment otherwise than within limits therein defined, or agrees not to exercise, or participate in the exercise of, a power of appointment otherwise than within the limits therein defined.
b. A power of appointment, whether or not coupled with an interest, and whether the power is held by the donee in an individual or in a fiduciary capacity, may be released, wholly or partially, by the donee thereof, unless otherwise expressly provided in the instrument creating the power.
Section 2. Method of Release
A power releasable according to Section 1 of this Chapter may be released, wholly or partially, by the delivery of a written release executed by the donee of the power, for consideration or under seal, to any person who could be adversely affected by the exercise of the power, or to any person who, alone or with another or others, holds in trust property subject to the power, or, in the case of a power created by will, by the filing of such release in the Probate Court in which the will was proved or allowed.
Section 3. Extent of Release
A release executed by the donee of a power releasable according to Section 1 of this Chapter, and delivered or filed in accordance with Section 2 of this Chapter, shall be effective to release the power to the extent provided in such release.
Section 4. Effect of Release of One Donee Upon other Donees
If a power of appointment releasable according to Section 1 of this Chapter is or may be exercisable by two or more persons in conjunction with one another or successively, a release or disclaimer of the power, in whole or in part, executed and delivered or filed, in accordance with Section 2 of this Chapter, by any one of the donees of the power, shall, subject to the provisions of Section 2 of this Chapter, be effective to release or disclaim, to the extent therein provided, all right of such person to exercise, or to participate in the exercise of, the power, but, unless the instrument creating the power otherwise provides, shall not prevent or limit the exercise or participation in the exercise thereof by the other donee or donees thereof.
Section 5. Exercise in Favor of Further Power
a. Except to the extent otherwise expressly provided in the instrument creating the power, the donee of a power of appointment over any trust may appoint all or any part of the property subject to such power in further trust and may create further special powers of appointment. Where the donee of the original power could have appointed the property outright to the donee of the further power, any restrictions on the class of permissible appointees imposed by the donor of the original power shall lapse with the exercise of such power. The trustee of any trust the property of which is so appointed shall transfer and pay over such appointed property to the trustee designated by the donee, to be administered subject to the jurisdiction of any court having jurisdiction over the trust to which such property is appointed.
b. Nothing contained in this Section shall be construed to permit the creation of any interest which violates the rule against perpetuities.
Section 6. Exercise of Power of Appointment of Property
The donee of a power to appoint property to anyone other than his estate shall not have the power to appoint property to himself, his estate, his creditors or the creditors of this estate, but may appoint to anyone not expressly excluded from the class of permissible appointees.
Section 7. Applicability if Power of Appointment of Property
The provisions of Section 6 of this Chapter shall apply to all wills and trusts, regardless of the testator's date of death or the date the will or trust was executed, unless: (1) the power of appointment expressly included the power to appoint to the donee, his estate, his creditors or the creditors of his estate; or (2) a contrary intention of the donor is demonstrated by clear and convincing evidence.
CHAPTER 11. DISCLAIMER OF PROPERTY
Section 1. Definitions
a. The provisions of Sections 1 to 5 of this Chapter, inclusive, shall be liberally construed to promote their underlying purpose and policy of readily permitting the disclaimer of interests.
b. As used in said Sections,
(1) "Non-testamentary Instrument" includes, but is not limited to, a trust other than a trust created under a will, an annuity, a policy of life, health or accident insurance, a bank account or any contract or other document naming another party as beneficiary thereof whether such beneficiary takes by survivorship, payment on death or outright grant, but does not include a will.
(2) "Interest" means any interest in property, including any power, even if held in a fiduciary capacity.
c. A disclaimer which complies with the requirements of said Sections is irrevocable.
Section 2. Disclaimer of Property in Decedent's Estate. Time Limitation.
Effect of Disclaimer
a. An heir, next of kin, legatee, person succeeding to a disclaimed interest, beneficiary under a testamentary instrument, trustee of a non-testamentary trust, donee of a power of appointment granted by a testamentary instrument or appointee under a power of appointment exercised by a testamentary instrument, may disclaim in whole or in part any interest by delivering a written disclaimer in the manner hereinafter provided.
b. A guardian of the estate, conservator of the estate, executor, administrator or other personal representative of the estate of a minor, incapable person, or decedent, or the trustee of a testamentary trust, if such fiduciary deems it in the best interests of those interested in the estate of such person or such trust and not detrimental to the interests of such minor, incapable person, decedent's estate or such trust, with the approval of the Probate Court having jurisdiction over such minor's, incapable person's or decedent's estate or such trust, may disclaim on behalf of such estate or such trust within the same time and in the same manner as could a capable person.
c. The disclaimer shall:
(1) describe the interest disclaimed;
(2) be executed by the disclaimant in the manner provided for the execution of deeds of real property either by the laws of the state of Connecticut or by the laws of the place of execution; and
(3) declare the disclaimer and the extent thereof.
d. A disclaimer under this Section shall be effective if made in the following manner:
(1) A disclaimer of a present interest shall be delivered not later than the date which is nine months after:
(a) the death of the decedent, or the donee of the power or,
(b) the day on which the disclaimant attains the age of 18 years, whichever is later;
(2) a disclaimer of a future interest shall be delivered not later than the date which is nine months after:
(a) the event that determines that the taker of the interest is finally ascertained and his interest indefeasibly vested, or
(b) the day on which the disclaimant attains the age of 18 years, whichever is later;
(3) the disclaimer shall be delivered to the legal representative of the estate of the decedent or deceased donee of the power or the holder of the legal title to the property to which the interest relates. Although not a condition to disclaimer, if within such nine-month period, a copy of such disclaimer and a receipt therefor, executed by such legal representative or such holder of legal title in the same manner as provided for the disclaimer, are filed in the Probate Court.
e. If a disclaimer is made pursuant to this Section, and the deceased owner or donee of a power of appointment has not provided for another disposition, the interest disclaimed shall devolve as if the disclaimant had predeceased the decedent or, if the disclaimant has been designated to take under a power of appointment exercised by a testamentary instrument, as if the disclaimant had predeceased the donee of the power. If a disclaimer is addressed to an interest disposed of by a particular provision of an instrument, then the interest disclaimed shall devolve as if the disclaimant had predeceased the decedent, but only for purposes of that provision, and such interest may devolve to or for the benefit of the disclaimant under other provisions of such instrument or by intestacy. Any future interest that takes effect in possession or enjoyment at or after the termination of the interest disclaimed shall take effect as if the disclaimant had predeceased the decedent or the donee of the power. A disclaimer shall relate back for all purposes to the date of death of the decedent or of the donee.
Section 3. Right to Disclaim Barred, When. Binding Effect of Disclaimer or
Waiver
a. The right to disclaim an interest is barred by any:
(1) assignment, conveyance, encumbrance, pledge or transfer of the interest or any part thereof;
(2) written waiver of the right to disclaim such interest;
(3) acceptance of such interest or any of its benefits; or
(4) sale of such interest under judicial sale, made before the disclaimer is effected.
b. The right to disclaim shall exist notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction.
c. A disclaimer or a written waiver of the right to disclaim, shall be binding upon the disclaimant or person waiving and all parties claiming by, through or under such disclaimant or person.
Section 4. Right to Disclaim Under other Law
The provisions of Sections 1 to 5 of this Chapter, inclusive, shall not abridge the right of any person to assign, convey, release, or renounce any interest arising under any other statute or under common law.
Section 5. Disclaimer of Property Passing Under Non-Testamentary Instrument.
Time Limitation. Effect of Disclaimer
a. A grantee, donee, joint-tenant of personalty, person succeeding to a disclaimed interest, beneficiary under a non-testamentary instrument, trustee of a non-testamentary trust, donee of a power of appointment granted by a non-testamentary instrument, or an appointee under a power of appointment exercised by a non-testamentary instrument may disclaim in whole or in part any interest by delivering a written disclaimer in the manner hereinafter provided.
b. A guardian of the estate, conservator of the estate, executor, administrator or other personal representative of the estate of a minor, incapable person, or decedent, or the trustee of a non-testamentary trust, if such fiduciary deems it in the best interests of those interested in the estate of such person or such trust and not detrimental to the interests of such minor, incapable person or decedent's estate or such trust, with the approval of the Probate Court may disclaim on behalf of such estate or such trust within the same time and in the same manner as could a capable person.
c. The disclaimer shall:
(1) describe the interest therein disclaimed;
(2) be executed by the disclaimant in the manner provided for the execution of deeds of real property either by the laws of the state of Connecticut or by the laws of the place of execution; and
(3) declare the disclaimer and the extent thereof.
d. A disclaimer under this Section shall be effective if made in the following manner.
(1) A disclaimer of a present interest shall be delivered not later than the date which is nine months after the effective date of the non-testamentary instrument. A disclaimer of a future interest shall be delivered not later than the date which is nine months after the event determining that the taker of the interest is finally ascertained and such interest is indefeasibly vested.
(2) If the disclaimant does not have actual knowledge of the existence of the interest, the disclaimer shall be delivered not later than the date which is nine months after the disclaimant has actual knowledge of the existence of the interest. If the disclaimant has not attained the age of 18 years, the disclaimer shall be delivered not later than the date which is nine months after such person has attained the age of 18 years.
(3) The disclaimer shall be delivered to the transferor of the interest, his legal representative, or the holder of the legal title to the property to which such interest relates.
(4) The effective date of a revocable, non-testamentary instrument is the date on which the maker no longer has power to revoke it or to transfer to the maker or another the entire legal and equitable ownership of the interest.
e. If an interest has devolved to the disclaimant under a non-testamentary instrument and such instrument does not provide for another disposition, the interest disclaimed shall devolve as if the disclaimant had died before the effective date of such instrument. A disclaimer shall relate back for all purposes to that date. Any future interest that takes effect in possession or enjoyment at or after the termination of the interest disclaimed shall take effect as if the disclaimant had died before the effective date of the non-testamentary instrument that transferred the interest disclaimed. If a disclaimer is addressed to an interest disposed of by a particular provision of a non-testamentary instrument then the interest disclaimed shall devolve as if the disclaimant had died before the effective date of such instrument, but only for purposes of that provision, and such interest may devolve to or for the benefit of the disclaimant under other provisions of such instrument or by intestacy.
CHAPTER 12. PROTECTED PERSONS AND THEIR PROPERTY
Section 1. Administrator of Veterans' Affairs to be Party in Interest
a. The Administrator of Veterans' Affairs, created by Act of the Congress of the United States, or his successor, shall be a party in interest in any proceedings brought under any provision of the laws of the Mashantucket Pequot Tribe for the appointment of a guardian of a veteran of any war or other beneficiary on whose account benefits of compensation, adjusted compensation, pension or insurance or other benefits are payable by the Veterans' Administration.
b. The Administrator of Veterans' Affairs or his successor shall be an interested party in the administration of the estate of any ward on whose account the benefits are payable or whose estate includes assets derived from benefits paid by the Veterans' Administration, its predecessor or successor.
c. Written notice shall be given by registered or certified mail, unless waived in writing, to the division of the office of the Veterans' Administration having jurisdiction over the area in which the court is located, of the time and place for hearing on any petition or pleading or in connection with any proceeding pertaining to or affecting in any manner the administration of the estate of any beneficiary of the Veterans' Administration. Notice shall be mailed in time to reach such office not less than 10 days before the date of the hearing or other proceeding.
Section 2. Investment of Funds in Insurance and Annuity Contracts by Conservator
or Guardian of Estate
Upon application of a conservator or the guardian of the estate of a ward, the Probate Court may authorize the conservator or guardian to invest income or principal of the estate, to the extent found reasonable by the Court under all the circumstances, in one or more policies of life or endowment insurance or one or more annuity contracts issued by a life insurance company deemed suitable by said Court, on the life of the ward or incapable person, or on the life of a person in whose life the ward or incapable person has an insurable interest. Any such policy or contract shall be the sole property of the ward or incapable person whose funds are invested in it.
Section 3. Testamentary Guardian or Co-Guardians
The surviving parent of any minor may by will appoint a person or persons who shall be guardian or co-guardians of the person of such minor, a guardian or CO-guardians of the estate or both. Such appointment shall not supersede the previous appointment of a guardian made by the Probate Court.
Section 4. Payment by Guardian or Conservator of Administration Expenses
of Deceased Protected Person
a. Upon the death of a minor with respect to whose estate a guardian has been duly appointed by the Probate Court, has qualified and is acting as such, and upon the death of a person with respect to whose estate a conservator has been duly appointed, has qualified and is acting as such, if:
(1) the estate consists entirely of personalty; and
(2) the estate remaining in the hands of the guardian or conservator at the time of the death of the protected person is not more than sufficient to pay expenses incurred during the lifetime of the protected person and not paid as of the date of death, administration expenses necessary to the settlement of the fiduciary's final account and the funeral expenses, including the cost of a suitable monument and cemetery plot, then such guardian or conservator may pay such expenses and take credit therefor on his final account.
b. If the estate is less than sufficient to pay all such expenses in full, the provisions of Chapter 6, Section 48 as to order of payment shall govern.
Section 5. Definitions
For the purposes of Sections 5 to 18 of this Chapter, inclusive, the following terms shall have the following meanings:
a. "Conservator of the Estate" means a person, a tribal official, or a private profit or nonprofit corporation except a hospital or nursing home as defined in the Connecticut General Statutes Section 19a-521, appointed by the Probate Court under the provisions of Sections 5 to 18 of this Chapter, inclusive, to supervise the financial affairs of a person found to be incapable of managing his or her own affairs or of a person who voluntarily asks the Probate Court for the appointment of a conservator of the estate, and includes a temporary conservator of the estate appointed under the provisions of Section 12 of this Chapter.
b. "Conservator of the Person" means a person, a tribal official, or a private profit or nonprofit corporation, except a hospital or nursing home as defined in the Connecticut General Statutes Section 19a-521, appointed by the Probate Court under the provisions of Sections 5 to 18 of this Chapter, inclusive, to supervise the personal affairs of a person found to be incapable of caring for himself or herself or of a person who voluntarily asks the Probate Court for the appointment of a conservator of the person, and includes a temporary conservator of the person appointed under the provisions of Section 12 of this Chapter.
c. "Incapable of Caring for One's Self" means a mental, emotional or physical condition resulting from mental illness, mental deficiency, physical illness or disability, chronic use of drugs or alcohol, or confinement, which results in the person's inability to provide medical care for physical and mental health needs, nutritious meals, clothing, safe and adequately heated and ventilated shelter, personal hygiene and protection from physical abuse or harm and which results in endangerment to such person's health.
d. "Incapable of Managing His or Her Affairs" means that a person has a mental, emotional or physical condition resulting from mental illness, mental deficiency, physical illness or disability, chronic use of drugs or alcohol, or confinement, which prevents that person from performing the functions inherent in managing his or her affairs, and the person has property which will be wasted or dissipated unless proper management is provided, or that funds are needed for the support, care or welfare of the person or those entitled to be supported by that person and that the person is unable to take the necessary steps to obtain or provide funds which are needed for the support, care or welfare of the person or those entitled to be supported by such person.
e. "Involuntary Representation" means the appointment of a conservator of the person or the estate, or both, after a finding by the Probate Court that the respondent is incapable of managing his or her affairs or incapable of caring for himself or herself.
f. "Respondent" means either a minor or an adult person for whom an application for a voluntary or involuntary representation has been filed.
g. "Voluntary Representation" means the appointment of a conservator of the person or estate, or both, upon request of the respondent, without a finding that the respondent is incapable of managing his or her affairs or incapable of caring for himself or herself.
h. "Ward" means a person for whom involuntary representation is granted under Sections 5 to 18 of this Chapter, inclusive.
Section 6. Naming of Own Conservator for Future Incapacity
a. Any person who has attained at least 18 years of age, and who is of sound mind, may designate in writing a person or persons whom he desires to be appointed as conservator of his person or estate or both, if he is thereafter found to be incapable of managing his affairs.
b. The designation shall be executed, witnessed and revoked in the same manner as provided for wills in Chapter 5, Sections 3 and 4; provided, any person who is so designated as a conservator shall not qualify as a witness.
c. Such written instrument may excuse the person or persons so designated from giving the probate bond required under the provisions of Section 11 of this Chapter, if appointed thereafter as a conservator.
Section 7. Application for Voluntary Representation
Any person domiciled on tribal lands or tribal members wherever they reside may make application to the Probate Court for voluntary representation either for the appointment of a conservator of the person or a conservator of the estate, or both. If the application excuses bond, no bond shall be required by the court unless later requested by the respondent or unless facts are brought to the attention of the court that a bond is necessary for the protection of the respondent. Upon receipt of the application, the court shall set a time and place for hearing and shall give such notice as it may direct to the petitioner, the petitioner's spouse, if any, and to other interested parties, if any. After seeing the respondent in person and hearing his or her reasons for the application and after explaining to the respondent that granting the petition will subject the respondent or respondent's property, as the case may be, to the authority of the conservator, the court may grant voluntary representation and thereupon shall appoint a conservator of the person or estate or both, and shall not make a finding that the petitioner is incapable. The conservator of the person or estate or both, shall have all the powers and duties of a conservator of the person or estate of an incapable person appointed pursuant to Section 11 of this Chapter. If the respondent subsequently becomes disabled or incapable, the authority of the conservator shall not be revoked as a result of such disability or incapacity.
Section 8. Release from Voluntary Representation
Any person who is under voluntary representation as provided by Section 7 of this Chapter shall be released from voluntary representation upon giving 30 days written notice to the Probate Court.
Section 9. Application for Involuntary Representation. Penalty for Fraudulent
or Malicious Application or False Testimony
a. An application for involuntary representation may be filed by any person alleging that a respondent is incapable of managing his or her affairs or incapable of caring for himself or herself and stating the reasons for the alleged incapability. The application shall be filed in the Probate Court for any person who is domiciled on tribal lands or tribal members wherever they may reside.
b. Any person who willfully files a fraudulent or malicious application for involuntary representation or appointment of a temporary conservator or any person who conspires with another person to file or cause to be filed such an application or any person who willfully testifies either in court or by report to the court falsely to the incapacity of any person in any proceeding provided for in Sections 5 to 18 of this Chapter, inclusive, shall be fined not more than $1,000 or imprisoned not more than one year or both.
Section 10. Notice of Hearing. Appointment of Counsel
a. Upon an application for involuntary representation, the court shall issue a citation to the following enumerated parties to appear before it at a time and place named in the citation, which shall be served on the parties at least seven days before the hearing date, which date shall not be more than 30 days after the receipt of the application by the Probate Court unless continued for cause shown. Notice of the hearing shall be sent within 30 days after receipt of the application.
(1) The court shall direct that personal service be made, by the tribal police or an indifferent person, upon the following:
(a) the respondent, except that if the court finds personal service on the respondent would be detrimental to the health or welfare of the respondent, the court may order that such service be made upon counsel for the respondent, if any, and if none, upon the attorney appointed under subsection (b) of this Section;
(b) the respondent's spouse, if any, if the spouse is not the applicant, except that in cases where the application is for involuntary representation pursuant to Section 17b-456, and there is no spouse, the court shall order notice by certified mail to the children of the respondent and if none, the parents of the respondent and if none, the brothers and sisters of the respondent or their representatives, and if none, the next of kin of such respondent.
(2) The court shall order such notice as it directs to the following:
(a) the applicant;
(b) to the Administrator of Veteran's Affairs by registered or certified mail, if the respondent is receiving veterans' benefits or the Veteran's Home and Hospital, or both, if the respondent is receiving aid or care from such hospital, or both;
(c) the children of the respondent and if none, the parents of the respondent and if none, the brothers and sisters of the respondent or their representatives;
(d) the person in charge of the hospital, nursing home or some other institution, if the respondent is in a hospital, nursing home or some other institution.
(3) The court, in its discretion, may order such notice as it directs to other persons having an interest in the respondent and to such persons the respondent requests be notified.
b.
(1) The notice required by subdivision (1) of subsection (a) of this Section shall specify:
(a) the nature of involuntary representation sought and the legal consequences thereof;
(b) the facts alleged in the application; and
(c) the time and place of the hearing.
(2) The notice shall further state that the respondent has a right to be present at the hearing and has a right to be represented by an attorney at his or her own expense. If the respondent is unable to request or obtain counsel for any reason, the court shall appoint an attorney to represent the respondent in any proceeding under this title involving the respondent. If the respondent is unable to pay for the services of such attorney, the reasonable compensation for such attorney shall be paid by the Probate Court. If the respondent notifies the court in any manner that he or she wants to attend the hearing on the application but is unable to do so because of physical incapacity, the court shall schedule the hearing on the application at a place which would facilitate attendance by the respondent but if not practical, then the judge shall visit the respondent, if he or she is on tribal lands, before the hearing. Notice to all other persons required by this Section shall state only the nature of involuntary representation sought, the legal consequences thereof and the time and place of the hearing.
Section 11. Hearing. Appointment of Conservator
a. At any hearing for involuntary representation, the court shall receive evidence regarding the condition of the respondent, including a written report or testimony by one or more physicians licensed to practice medicine in the state of Connecticut or Rhode Island who have examined the respondent within 30 days preceding the hearing. The report or testimony shall contain specific information regarding the disability and the extent of its incapacitating effect. 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 Mashantucket Pequot Department of Health and Human Services, public health nurse, public health agency, psychologist, coordinating assessment and monitoring agencies, or such other persons as the court deems qualified to provide such evidence. 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 his or her refusal to be examined by a physician or that the alleged incapacity is not medical in nature. If this requirement is waived, the court shall make a specific finding in any decree issued on the petition stating why medical evidence was not required.
b. The court may hold the hearing on the application at a place within tribal land other than its usual courtroom if it would facilitate attendance by the respondent.
c. If the court finds by clear and convincing evidence that the respondent is incapable of managing his or her affairs then the court shall appoint a conservator of his or her estate. If the court finds by clear and convincing evidence that the respondent is incapable of caring for himself or herself, then the court shall appoint a conservator of his or her person.
d. When selecting a conservator to be appointed for the respondent, the court shall be guided by the best interests of the respondent. The respondent may, by oral or written request, if at the time of the request he or she has sufficient capacity to form an intelligent preference, nominate a conservator who shall be appointed unless the court finds the appointment of the nominee is not in the best interests of the respondent. In such case, or in the absence of any such nomination, the court may appoint any qualified person, authorized tribal official or corporation in accordance with subsections (a) and (b) of Section 5 of this Chapter.
e. Upon the request of the respondent or his or her counsel, made within 30 days of the date of the decree, the court shall make and furnish findings of fact to support its conclusion.
f. If the court appoints a conservator of the estate of the respondent, it shall require a Probate bond. The court may, if it deems it necessary for the protection of the respondent, require a bond of any conservator of the person appointed hereunder.
Section 12. Appointment of Temporary Conservator
a. Upon written application of any person deemed by the court to have sufficient interest in the welfare of the respondent, including but not limited to the spouse or any relative of the respondent, the Probate Court may, if it finds the respondent to be incapable of managing his or her affairs or incapable of caring for himself or herself, appoint a temporary conservator. The temporary conservator shall have charge of the property or of the person of the respondent or both for such period of time or for such specific occasion as the court finds to be necessary, provided a temporary appointment shall not be valid for more than 30 days.
b. An appointment shall not be made unless:
(1) there is presented to the judge a certificate, signed by two physicians licensed to practice medicine or surgery in this state, stating that they have examined the person and that it is their opinion that his condition renders him incapable; and
(2) the court finds that irreparable injury to the mental or physical health or financial or legal affairs of the respondent will result if a conservator is not appointed forthwith.
c. The court may, if it deems it to be in the best interests of the respondent, hold a hearing on any application for temporary conservator under this Section, in which case the provisions of Section 10 of this Chapter shall apply, except that the seven-day notice requirement set forth in Section 10 of this Chapter shall be waived. The application shall be acted upon within 48 hours after the filing thereof, Saturdays and Sundays excluded, unless continued for cause shown. The certificate shall state the date of examination, which shall not be more than three days before the date of signature. The judge may, in his discretion, require a temporary conservator to give a probate bond.
Section 13. Duties of Conservator of the Estate. Application for Distribution
of Gifts of Income and Principal from the Estate
a. A conservator of the estate appointed under Sections 7, 11, or 12 of this Chapter shall, within two months after the date of his or her appointment, make and file in the Probate Court, an inventory under oath of the estate of his or her ward, with the properties thereof appraised or caused to be appraised, by such conservator, at fair market value as of the date of his appointment. Such inventory shall include the value of the ward's interest in all property in which the ward has a legal or equitable present interest, including, but not limited to, the ward's interest in any joint bank accounts or other jointly held property. The conservator shall manage all the estate and apply so much of the net income thereof, and, if necessary, any part of the principal of the property, which is required to support the ward and those members of the ward's family whom he has the legal duty to support and to pay his debts, and may sue for and collect all debts due the ward.
b. Any conservator of the estate of a married person may apply such portion of the property of the ward to the support, maintenance and medical treatment of the ward's spouse which the Probate Court, upon hearing after notice, decides to be proper under the circumstances of the case.
c. Notwithstanding the provisions of Chapter 3, Section 28, the court may, and at the request of any interested party shall, require annual accountings from any conservator of the estate and the court shall hold a hearing on any such account with notice to all persons entitled to notice under Section 12 of this Chapter.
d. Upon application of a conservator of the estate, after hearing with notice to all parties who may have an interest as determined by the court, the court may authorize the conservator to pay and distribute gifts of income and principal from the estate of the ward in such amounts or in such form as the court approves, to individuals and qualified charities as defined in the Internal Revenue Code of 1986, or any corresponding internal revenue code of the United States, as from time to time amended. Such gifts shall be authorized only if the court finds that:
(1) in the case of individuals not related to the ward by blood or marriage, the ward has made a previous gift to that individual prior to being declared incapable;
(2) in the case of a charity, the ward had made a previous gift to such charity or pledged a gift in writing to such charity prior to being declared incapable;
(3) the estate of the ward is more than sufficient to carry out the duties of the conservator as set forth in subsections (a) and (b) of this Section, both for the present and foreseeable future, including due provision for the continuing proper care, comfort and maintenance of such ward in accordance with such ward's established standard of living and for the support of persons the ward is legally obligated to support;
(4) the purpose of the gifts is not to diminish the estate of the ward so as to qualify the ward for federal or state aid or benefits; and
(5) in the case of a ward capable of making an informed decision, the ward has no objection to such gift. The court shall give consideration to the following:
(a) the medical condition of the ward, including the prospect of restoration to capacity;
(b) the size of the ward's estate;
(c) the provisions which, in the judgment of the court, such ward would have made if he or she had been capable, for minimization of income and estate taxes consistent with proper estate planning.
Section 14. Duties of Conservator of the Person
The conservator of the person shall have:
a. the duty and responsibility for the general custody of the respondent;
b. the power to establish his or her place of abode within the tribal lands in accordance with tribal laws;
c. the power to give consent for his or her medical or other professional care, counsel, treatment or service;
d. the duty to provide for the care, comfort and maintenance of the ward;
e. the duty to take reasonable care of the respondent's personal effects; and
f. the duty to report at least annually to the Probate Court regarding the condition of the respondent. The preceding duties, responsibilities and powers shall be carried out within the limitations of the resources available to the ward, either through his own estate or through the assistance of Tribe.
Section 15. Court to Resolve Conflicts between Conservators
If a person has both a conservator of the person and a conservator of the estate who are not the same person and a conflict arises between the two concerning the duties and responsibilities or authority of either, the matter shall be submitted to the Probate Court which appointed the conservators. Upon hearing, the court shall order the course of action which in the court's discretion is in the best interests of the person under conservatorship.
Section 16. Conservator of Nonresident's Property
a. If any person domiciled out of and owning tangible personal property within tribal lands is incapable of managing his affairs, the Probate Court may, on the written application of a husband, wife or relative or of a conservator, committee or guardian having charge of the person or estate of the incapable person and after notice pursuant to Section 12 of this Chapter or such reasonable notice as the court may order, and a hearing as required pursuant to Section 13 of this Chapter appoint a conservator of the estate for the tangible personal property on tribal lands of the incapable person pursuant to Section 13 of this Chapter.
b. If a conservator of the estate has been appointed for such an incapable person in the jurisdiction of such person's domicile,
(1) the court may, on application of such conservator to act as conservator for tangible personal property of the incapable person on tribal lands, appoint such person as conservator of the estate without a hearing, on presentation to the court of a certified copy of the conservator's appointment in the jurisdiction of the incapable person's domicile; and
(2) if the application is for the appointment of a person other than the out-of-jurisdiction conservator to act as conservator of the estate, the court, at its hearing on the application, may accept a certified copy of the out-of-jurisdiction appointment of a conservator as evidence of incapacity. As used in this subsection, a "conservator of the estate" in another jurisdiction includes any person serving in the equivalent capacity in such jurisdiction.
c. The conservator of the estate for the property on tribal lands shall give a probate bond, and shall, within two months after the date of his appointment, make and file in the Probate Court, under oath, an inventory of all the tangible personal property on the reservation of the incapable person, appraised or caused to be appraised, by such conservator, at fair market value as of the date of the conservator's appointment.
d. The proceeds of any sale of tangible personal property may be transferred to the conservator, committee or guardian having charge of the person and estate of the incapable person in the jurisdiction where the incapable person is domiciled, following the application and proceedings which are required by the laws of the Tribe.
Section 17. Termination of Conservatorship. Review by Court
a.
(1) If the Probate Court finds a ward to be capable of caring for himself or herself, the court shall, upon hearing and after notice, order that the conservatorship of the person be terminated. If the court finds upon hearing and after notice which the court prescribes, that a ward is capable of managing his or her own affairs, the court shall order that the conservatorship of the estate be terminated and that the remaining portion of his or her property be restored to the ward.
(2) If the court finds upon hearing and after notice which the court prescribes, that a ward has no assets of any kind remaining, the court may order that the conservatorship of the estate be terminated. The court shall thereupon order distribution of the remaining assets to the conservator of the person or, if there is no conservator or the conservator declines or is unable to accept, to some suitable person, to be determined by the court, to hold for the benefit of the ward, upon such conservator or person giving such probate bond, if any, as the court orders.
(3) If any ward having a conservator dies, his or her property shall be delivered to his or her executor or administrator.
b.
(1) In any case under subsection (a) of this Section the conservator shall file in the court his or her final account, and the court shall audit the account and allow the account if it is found to be correct. If the ward is living, the ward and his or her attorney, if any, shall be entitled to notice by regular mail of any hearing held on t