Current Issues in Elder Law
| Publication year | 2021 |
| Pages | 245 |
79 CBJ 245. CURRENT ISSUES IN ELDER LAW
Vol. 79, No. 4
December 2005
Many Americans are aware that the country's older population has increased over the past century and shows every sign of continuing to increase in future decades. Nationwide, there was an increase of 12 percent in the over-65 population between 1990 and 2000.1 The most rapid growth, however, was in the population 85 years and over, which increased an astounding 38 percent during the 1990s.2 In Connecticut, the percentage of the population over age 65 is 13.8, significantly higher than the national figure of 12.4 percent.3
These is no reason to believe that these trends will not continue. Between April 1, 2000, and July 1, 2004, the United States Census Bureau estimates that the number of Connecticut residents over 65 increased by more than 3,000, and those over 85 by nearly 18,000.4 By 2030, the population projections indicate that the over-65 population will have increased by 54 percent and the over-85 population by nearly 49 percent.5 Disturbingly, 1999 figures showed that 8.5 percent of those 65 to 74 were below poverty thresholds, while 11.5 percent of those over 75 were below the poverty line.6 Additionally, of older residents in Connecticut, 37 percent are noted as having a disability.7
It is apparent that the State of Connecticut will need to be in a position to ensure that the needs of its older population are met. It will be necessary: to prevent abuse of the elderly population by those entrusted with their care; to provide a means for those who cannot act for themselves to do so through others; to permit older persons to remain living in their homes as long as possible; to provide proper nursing home care for those who cannot; and to provide governmental assistance to those who lack adequate resources. The law is one means by which these goals can be assured. The following outlines the status of the law in Connecticut in these areas that impact the elderly.
I. CONSERVATORSHIP: POTENTIAL FOR ABUSE OF THE ELDERLY?
In 1988, in response to increasing questions raised in the press and in Congress on a national basis about the functioning of the respective states' systems for protecting elderly persons unable to act for themselves,8 the American Bar Association Commission on Legal Problems of the Elderly9 and the Commission on the Mentally Disabled10 sponsored a National Guardianship11 Symposium of experts in a number of disciplines. This symposium, which became known as "Wingspread," made recommendations for safeguarding the rights of wards and providing for their needs. Among the concerns expressed were lack of due process in the initiation of proceedings, lack of a mechanism for limiting the authority of the conservator to the least restrictive alternatives, and providing effective representation for wards through the court system. Connecticut can take pride in the fact that its statute concerning the powers and duties of conservators was amended in 1998 to provide for a limited conservatorship.12
More recently, in 2001, a broad group of organizations concerned with the elderly13 convened "Wingspan," the Second National Guardianship Conference, to review progress in the more than 10 years since the Wingspread symposium. The Wingspan Conference adopted 68 recommendations dealing with general overview; diversion and mediation; due process; agency guardianship and guardianship standards; monitoring and accountability; and lawyers as fiduciaries or counsel to fiduciaries.14 The conference brought to the fore some basic disagreements between those whose view of the system emphasizes an adversarial proceeding with due process protections for the ward and a therapeutic model of providing services designed to assist the ward.15
In particular, a fundamental disagreement among the Wingspan participants surfaced in connection with a proposal to change a recommendation embodied in the original Wingspread report that an attorney should always act as a "zealous advocate" for the client; some argued in favor of substituting a requirement of "responsible advocacy,"16 consisting of advising the client of all options and their consequences, in an understandable manner, and then "zealously advocat[ing] the course of actions chosen by the client."17 This tension goes to the heart of the role of the attorney in representing a client, and it is a conundrum that will not easily be resolved.
A followup to the Wingspan conference, held in November, 2004, was charged with developing steps for implementing the Wingspan recommendations.18 The conference resulted in action steps offering practical guidelines toward a system that would better provide for the needs, and protect the rights of, the nation's elders.19
The impact of demographic data and national concern for the elderly will surely be felt in Connecticut's Probate Courts, which are charged by statute with oversight of the appointment of conservators for elderly or incapacitated persons and administration of conservatorships.20 In this time of examination of the future of Connecticut's Probate Court system, it will be more important than ever to assure that the funding and support for our courts is maintained at a level that will permit the continued accessibility and informality that are the hallmarks of the system.21
II. SURROGATE DECISION-MAKING
Conservatorship is only one way of providing for decision-making for those in the elderly population who can no longer decide for themselves. Many individuals choose to provide for others to act on their behalf through durable powers of attorney, designed to survive incompetency and to dispense, in most cases, with the necessity for a conservatorship under court supervision.22 Connecticut has enacted statutes permitting "springing" powers of attorney (effective upon occurrence of a specified contingency), with a suggested form of affidavit, to address circumstances in which the principal wishes to have a stand-by attorney-in-fact in place, but does not want the powers given to be effective immediately.23 An area not yet addressed is whether an attorney-in-fact should have statutory powers comparable to those of a conservator of the estate to make gifts to individuals or charities under probate court supervision.24 Although Connecticut law specifically provides for Durable Power of Attorney Bank Accounts,25 considerable public education will be required to promote these accounts as an alternative to the joint and survivorship bank accounts commonly suggested for convenience in dealing with financial affairs of an incapacitated person; frequently, the use of joint and survivorship accounts leads to unintended consequences on the death of the owner of the asset involved, who commonly does not realize that property held in that form will not pass under the provisions of a will.
Concerned about increasing divergence among the states in provisions regarding powers of attorney, the National Conference of Commissioners on Uniform State Laws has proposed a new Uniform Power of Attorney Act...
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