Recent Developments in Connecticut Conservatorship Law
| Publication year | 2021 |
| Pages | 319 |
81 CBJ 319. RECENT DEVELOPMENTS IN CONNECTICUT CONSERVATORSHIP LAW
Volume 81, No. 4, Pg. 319
December 2007
I. Introduction
Enactment of Public Act 07-116,(fn1) which became effective on October 1, 2007, effects sweeping changes in Connecticut's conservatorship law that update and modernize the law consistent with model standards. These amendments reflect a "person-centered" approach that requires courts to evaluate each situation on an individually tailored basis. The most fundamental aspect of the amendments is that they build on prior Connecticut law to require a presumption of limited, rather than plenary, conservatorship.
The amendments provide enhanced guidance on every aspect of the process, from inception through periodic review. Courts are now required to meet threshold jurisdic-tional requirements, to hold hearings at locations that are convenient for respondents, and to observe strengthened procedural requirements for hearings, including use of the rules of evidence and hearings on the record. Further, courts must at every stage of a proceeding evaluate whether a respondent's needs are currently being or could be served by a means that is less restrictive than appointment of a conservator. Even when courts conclude, based on clear and convincing evidence of needs, that appointment of a conservator is necessary, they are required to make appointments and to review conservatorships on an ongoing basis with an emphasis on authorizing only those duties that clear and convincing evidence has shown to be necessary. Finally, the amendments contain major changes concerning appeals. In contrast to the historical de novo review, the Superior Court must now limit its review to the record created at the probate court level, and must affirm the decision of that court unless it finds specific circumstances, such as legal error, to have occurred,or that the decision is contrary to the evidence presented. This article will provide a brief background of the national policy context and prior amendments to Connecticut law, and will then discuss the 2007 amendments in detail.
Conservatorship law in Connecticut has been slow to evolve and, until 2006, reflected only modest steps toward emphasizing a more person-centered approach. Prior to 1998, in all cases in which a court found that a respondent was incapable, it was obligatory that the court appoint a plenary conservator. While amendments in Connecticut law later permitted appointment of a conservator on a limited basis, and permitted courts to decline to intervene in situations in which there was already a less restrictive means in place to manage the respondent's needs, plenary appointments continued to be the norm.
This has changed due to the comprehensive amendments that were enacted in the 2007 legislative session. The amendments reflect years of debate on the national scene concerning standards and procedures for appointment of what is more typically known in other states as a guardian. A watershed event in the chronology of these discussions was what came to be known as the "Wingspread Conference." Convened in 1988 by the ABA Commission on Law and Aging, then known as the Commission on Legal Problems of the Elderly, this event gathered a group of experts from a broad range of disciplines to critically examine the state of guardianship law and to make recommendations for change. What emerged was a report that detailed concerns about the standards by which appointments were being made, about failure of oversight once guardians were in place, and about proposed detailed remedial recommendations.(fn2) These recommendations have inspired reform in many states, and have had a significant influence on the drafting of model legislation.
Following on Wingspread, the Commission on National Probate Standards in 1994 issued a revised set of standards that incorporated the following:
* greater emphasis on individuals' functional limitations;
* consideration of less restrictive alternatives;
* use of pre-hearing court visitors to discuss with respondents the potential for deprivation of rights, and to investigate the assertions made in the petition;
* the role of counsel as advocate for the respondent;
* enhanced procedural standards for use of emergency appointments;
* due process protections including personal notice, expedient hearings, and evidentiary standards; and
* a presumption of limited, evidence-based, individually tailored appointments.
Major elements of the Wingspread recommendations were also incorporated when, in 1997, the National Conference of Commissioners on Uniform State Laws (NCCUSL) revised the Uniform Guardianship and Protective Proceedings Act (UGPPA).(fn3) The overriding themes of the 1997 UGPPA were that guardians should be (i) appointed only when necessary; (ii) only for so long as necessary; and (iii) only with such powers as are necessary,
Thus, essentially guardians are a choice of last resort. The UGPPA also shifted away from more regressive, historical definitions of incapacity that emphasized "disabling conditions" to focus instead on an individual's ability to process and convey decisions, and the effects of inability to do so on self-care and management finances.
In 2002, the ABA Commission on Law and Aging reconvened the Wingspread partners in a subsequent forum entitled Wingspan. Using the Wingspread recommendations as their basis, participants sought to discuss means including education, research and funding, by which reforms could be achieved. Each set of recommendations became associated with action steps that spanned the process from determining jurisdiction through standards for appointment and court oversight of guardians.(fn4) Further amplifying what would be required to put new standards in practice, the Wingspan experts again met in 2004 for a major session on implementation. What derived from this meeting was a detailed "map" of action steps that span topics including interstate jurisdiction, training and standards of court practice, presumption of limited guardianship and monitoring standards.(fn5) The 2006 amendments in Connecticut law make specific reference to many elements of this map. Initially drafted by advocates from Greater Hartford Legal Assistance and the Connecticut Legal Rights Project, with comment from diverse partners, the amendments were finalized and ultimately championed by a work group led by Hartford Probate Court Judge Robert Killian, Jr.
Prior to 1998, Connecticut law mandated appointment of a plenary conservator in all situations in which a respondent was found to be incapable. Advocacy efforts designed to shift the presumption in the law from plenary to limited con-servatorship, and to instill a more person-centered approach to the role of conservators, yielded the following amendments to the statutes.
A.Alternatives to Appointment
In 1997, the legislature amended the law to provide that appointment of a conservator was no longer mandatory where (i) the respondent was being cared for properly; and/or (ii) the respondent's affairs were being properly managed.(fn6)
B. Option of Limited Conservatorship
The following year, the law was further amended.(fn7) Even after concluding that an individual required a conservator, courts had the option of making an appointment on a limited basis, i.e., limit the powers and duties of a conservator of the person or of the estate to some, but not all, of the powers and duties enumerated in the statutes. On its face, this gave courts an opportunity to tailor an appointment to the instant situation and to recognize the complementary value of the individual's informal support system and preexisting decisional tools. In practice, however, plenary conservatorship remained the norm.
C. Consideration of Community-Based Alternatives
A corollary to the question of whether a conservator should be appointed, and what scope of authority should be conferred, was an interest in furthering a ward's interest in receiving care in the "least restrictive setting." This term is often associated with the United States Supreme Court's decision in Olmstead v. L.C.(fn8) Premised on rights conferred by the Americans with Disabilities Act (ADA), Olmstead requires that States administer Medicaid services "in the most integrated setting appropriate to the needs of qualified individuals with disabilities," subject to development of a State plan that considers such factors as individual needs and preferences and relative costs. Building upon the holding in Olmstead, "the least restrictive setting" is now taken to refer both to the physical surroundings in which an individual receives care, and to the means by which the care is delivered.
With this interest in mind, the Connecticut legislature in 2005 amended the law to require consideration of community-based alternatives.(fn9) When a conservator was seeking to place a ward in a nursing facility, the conservator was first required to submit to the probate court a written report documenting the basis for the decision, identifying community-based alternatives that had been considered, and detailing reasons for the conclusion that the ward could not otherwise be served in a less restrictive setting. Guidance from the Probate Court Administrator suggested that the type of alternatives that should be considered included, but were not limited to, the Connecticut Home Care Program for Elders (CHCPE) and the other Connecticut Medicaid "waivers," as well as previously executed powers of attorney and/or advance health care directives.
A. Definitions
The 2007 amendments to the...
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