Designating a Conservator in Connecticut: Whose Interests Are Served by a Best Interests Analysis?
| Pages | 422 |
| Publication year | 2021 |
69 CBJ 422. Designating a Conservator in Connecticut: Whose Interests are Served By a Best Interests Analysis?
Uncertainty prevails in Connecticut regarding the viability of an estate planning technique of fundamental importance: the designation of a Conservator to protect one's person or estate in the event of incapacity. An ambiguity in Connecticut's Conservator Statute (fn1) (hereafter, the Designation Section) makes possible the argument that a Probate Court need not appoint the designee named by the incapable person prior to incapacity, unless the Court decides that the appointment will serve the "best interests" of the incapable person. Pending clarification, individuals planning for the possibility of disabling illness who seek absolute assurance that their person and property Will be managed by a person or institution of their own choosing should not rely on the Designation Section of the Conservator Statute to achieve that objective.
In Part I of this article, the absence of clear statutory authority for a best interests inquiry in cases where a designation has been executed is demonstrated. In Part 11, the policy aims of the Conservator Statute are examined, and it is argued that the interests of neither the respondent nor the State are served by a best interests review where a designation is in place. Finally, in Part 111, an appropriate standard for the judicial review of designations made in accordance with the Conservator Statute is offered. Borrowing from developed law in the probate context, the authors conclude that the Probate Courts lack authority to modify or disregard a designation of Conservator, except in extraordinary circumstances where there is a finding that the designated individual has such extreme deficiencies that he would be subject to immediate removal if appointed Conservator.
If the Probate Court has authority to consider the best interests of a respondent before appointing a designated Conservator, that authority must derive from the Conservator Statute. As recognized long ago by the Connecticut Supreme Court, "a court of probate in appointing a Conservator can proceed only in the case specified in the statute and in the manner there prescribed ...." (fn2) Accordingly, this analysis must commence with a study of the Conservator Statute- and, in particular, the Designation Section- and its legislative evolution.
Connecticut courts have appointed Conservators for centuries, (fn3) although it is only recently that their appointment decisions have been informed by the express prospective wishes of the respondent. In 1975, the Connecticut General Assembly directed Probate Courts to appoint Conservators designated by individuals, where such appointments served "the best interest and welfare of the incapable person." (fn4) This statute provided, in relevant part, that:
(a)(1) Any person who has attained at least eighteen 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. (2) Such designation shall be executed, witnessed and revoked in the same manner as provided for wills ... ; provided, any person who is so designated as a Conservator shall not qualify as a witness. (3) Such written instrument may excuse the person or persons so designated from giving the probate bond required under the provisions of subsection (b), if appointed thereafter as a Conservator.
(b) ... [I]f such incapable person has made a designation in accordance with the provisions of subsection (a), the court shall appoint the person so designated if it finds it serves the best interest and welfare of the incapable person. (fn5)
Thereafter, in 1977, the General Assembly repealed subsection (b) and its statutory grant of judicial discretion in its entirety. (fn6) Left intact by the 1977 amendments were only those provisions of the first subsection which authorized the designation, specified the appointment formalities and permitted the respondent to waive the probate bond requirement. (fn7)
The confusion surrounding the Probate Court's appointment discretion is thus a function of the 191-7 amendments. Statutory amendments in Connecticut are pressured to effect a change in the existing law (fn8) - and this is a presumption which applies to all amendatory acts, including those deleting provisions from the original statutes. (fn9) Under this common-sense rule, when the General Assembly repealed the subsection granting appointment discretion, it intended to bind the Probate Court to the designer's will, giving the designer full responsibility and control over the identity of any future Conservator.
However, some courts and commentators have concluded that the 1977 amendments resulted in no such retraction of the Probate Court's appointment responsibility. In a 1993 unreported decision, In re Grossman, the Greenwich Probate Court held that "the legislature did not explicitly or implicitly intend to deprive a Probate Court of its authority to consider the best interests of the respondent in appointing a [designated] Conservator to the person or estate." (fn10) The Court determined that the 1977 amendments preserved the Probate Court's appointment discretion in a new provision of the Conservator Statute, to wit, Section 45a-650(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. (fn11)
On its face, Section 45a-650(d) directs Probate Courts to consider the respondent's best interests in two circumstances: (i) "when selecting a Conservator" (which the authors refer to as "selection discretion") or (ii) when considering a nomination made by "oral or written request" of the respondent (which they term "request discretion"). As demonstrated below, however, a Probate Court which appoints a designated Conservator neither "selects a Conservator" nor confirms a nomination made by "oral or written request" of the respondent. Accordingly, this Section does not give the Probate Court the power to undertake a best interests analysis where a designation has been executed. (fn12)
The Probate Courts, request discretion will be considered first. Some have argued that a nomination by written request is, in effect, a designation, and that judicial discretion to disregard the former also implies discretion to disregard the latter. (fn13) This argument fails upon review of the plain language of the Designation Section. A designation is a formal document directed to the Probate Court which must be executed with all of the formalities of a will. (fn14) Its importance is such that a slight deviation from the statutory execution procedure voids its effect. By contrast, a...
To continue reading
Request your trial