CLRP

Conservatorship

Can a Person Name His Or Her Own Conservator?

YES. A person may specify the individual that he or she would want to serve as conservator if that became necessary. This can be accomplished through a written document that is witnessed and notarized, such as an advance directive or expressed prior to or during a probate hearing. Unless there is a good reason not to do so, the probate court judge should appoint the person who was requested.

How Is a Conservator Appointed?

Any person may file an “Application for the Appointment of a Conservator” with the Probate Court in the district where the individual who is alleged to be “incapable” resides. The Probate Court will hold a hearing within thirty days of receiving the application, although the hearing may be postponed for good cause. A conservator may also be appointed for a person who requests such assistance without a finding that the person is incapable.

How Does the Individual Receive Notice of the Conservatorship Application?

By personal (in hand) service at least ten days before the hearing. The notice which is required by the statute must say what kind of conservatorship is being sought, the time and place of the hearing and MUST describe the possible consequences of the appointment of a conservator, as well as the right to be present and to have an attorney. No evidence can be presented at all without proof of timely service of such a notice.

Does the Person Have the Right To a Lawyer?

YES. The individual who might be conserved (called the “respondent”) can be represented by an attorney of his/her choice. An attorney must be appointed by the court to represent the respondent at the hearing if the person is unable to request or pay for one. The court must permit the individual to retain the attorney of his/her choice. The court must pay for the attorney if the respondent is indigent and if the attorney will accept the probate court’s (limited) payments.

Does the Individual Attend the Hearing?

YES. The individual who is the subject of the hearing has the right to be present at the hearing, and it must be held at a place other than the Probate Court if that would make it possible for him or her to attend.

Is There a Record of the Hearing?

Yes, the hearing must be recorded.

What Must Be Shown To Have a Conservator Appointed?

The person who filed the application for a conservator is required to present medical evidence at the hearing from at least one physician who has examined the respondent within forty-five days of the hearing. The evidence must contain specific information regarding the respondent’s condition and the effect of his/her condition on the respondent's ability to care for him/herself or to manage his/her affairs. The judge may waive this requirement but must specify the reason for waiving it. The Court may order the evaluation of the individual by another physician, psychiatrist, or psychologist. The Court may also consider other relevant evidence, such as the individual’s physical and social functioning level or the availability of support from family or other sources.


How Does the Court Decide Whether a Conservator Is Necessary?

The Court must find by clear and convincing evidence that the individual is incapable of caring for himself or herself (for conservator of the person) and/or is unable to manage his or her financial affairs (for conservator of the estate) and that the appointment of a conservator is the least restrictive means of intervention available to assist the respondent in managing his/her affairs or caring for him/herself. In making its decision, the court must consider eight factors set out in the statute. These include the person's abilities, capacity to understand and articulate informed preferences about his or her care or management of his or her affairs, other previously made adequate arrangements (such as powers of attorney or health care representatives and advanced directives), information about past practices and preferences and any supportive services, technologies or other means that are available to assist the respondent to meet his or her needs.

How Does the Conservator Relate To a Power of Attorney And Advance Directives?

Sometimes a person may have given his or her “power of attorney” to another individual, giving that individual authority to manage specified personal or financial matters. Prior to the recent changes to the conservatorship law, the appointment of a conservator of the estate voided a power of attorney. Those provisions of the statute need to be amended to conform to the new statute, and at the time of this writing, the situation can be murky. However, if there is a power of attorney in place, it is not likely that a conservatorship of the estate would be the least restrictive means of intervention available, since the power of attorney would be less restrictive. An individual can prepare an Advance Directive that designates a conservator of the estate or the person, as well as a health care representative. Under the new statute, a conservator should not be appointed if there is a less restrictive alternative, like a health care agent or power of attorney already in place or available. Similarly, if a person has executed an advance directive appointing health care agent and/or specifies his or her treatment preferences, there is probably no need for a conservatorship of the person. If there are both a conservator of the person and a health care representative, the conservator of the person is bound by the health care decisions of a conserved person’s health care representative (absent a court order to the contrary or in certain other circumstances i.e. forensic cases). In deciding whether or not a conservatorship is necessary, the court is required to consider all such alternative arrangements.

Can the Probate Court’s Decision Be Appealed?

YES. Any party to the conservatorship proceeding who is dissatisfied with the decision can appeal to the Superior Court within forty-five days of the issuance of the decree. A court appointed attorney is required to assist a respondent to file such an appeal, but is not required to represent him/her on appeal.


What Are the Duties of the Conservator of the Estate?

The conservator of the estate is responsible for managing the individual’s income and assets to assure that his rights and interests are protected. Like the conservator of the person, the conservator of the estate only has those duties that are specifically assigned in the court order and supported by clear and convincing evidence, and must carry out those duties using the least restrictive means of intervention. The conservator must complete an inventory of the assets, including the fair market value, which must be filed with the Probate Court within two months of appointment. The conservator must use the income and assets to support the individual, paying bills and collecting any debts. The conservator must consult with the Probate Court before the sale or mortgage of assets or anything other than routine expenditures. The conservator of the estate is also required to purchase a bond (insurance) and the conservator of the person may be required to if the court deems it necessary.

What Are the Duties of a Conservator of the Person?

The probate court judge must set out in the court order exactly what duties and authorities are necessary to meet the needs of the conserved person and may not restrict the decision-making authority of the conserved person beyond what is necessary to provide for those needs. Thus, the judge must find clear and convincing evidence to support the need for each duty or authority assigned. The duties of a conservator of the person may include activities related to the person’s care, comfort, and personal effects. While the conservator can consent to routine medical procedures, this authority is limited by the statutory rights of persons receiving mental health treatment services under the Patients’ Bill of Rights.

The conserved person retains all rights and authorities not set out in the court order as assigned to the conservator.

A conservator must
• carry out the duties and authorities in the least restrictive manner,
• assist the conserved person in removing obstacles to independence and achieving self reliance.
• find out what the conserved person’s preferences are, and
• make decisions in conformance with those preferences


Can the Conservator Consent To Psychotropic Medications?

Not without specific authority, and only in inpatient settings. Because of the invasive nature and side effects of psychotropic medications, a conservator of the person does not have authority to authorize their use without specific authority from the Court. In addition, state statutes specify that the conservator with this authority must meet with the physician and the patient, review the individual’s record, and consider the “pros and cons” of the medications, the individual’s preferences and religious beliefs, and his or her prognosis with and without medications.


Can a Conservator Force a Person To Move From Her Home?

Not without a court hearing. A conservator cannot commit a person to a psychiatric hospital or otherwise change a conserved person’s residence, including moving a person to a nursing home (except in certain exceptional circumstances) without first having a hearing in probate court. Similarly, a conservator now cannot terminate a lease or other tenancy, sell a conserved person’s house or dispose of a conserved person’s household furnishings unless a court of probate finds after a hearing that such action is necessary or that the conserved person has agreed to the action.

Can a Conservator Override the Individual’s Civil Rights?

NO. The “Patients’ Bill of Rights” specifies the individual rights of persons receiving mental health services, and those can be restricted only if a court specifically authorizes doing so. The Connecticut Supreme Court held that a conservator could not prevent an individual under the conservatorship (the “respondent”) from having advocacy services authorized under the Bill of Rights, unless the Probate Court specifically orders this restriction of the individual’s civil rights. Connecticut General Statutes §45a-650(m) states that the imposition of a conservatorship shall not “impair, limit or diminish a conserved person’s right to retain an attorney to represent [him or herself] or to seek redress of grievances in any court or administrative agency” including challenging the conservatorship. A conserved person retains the right to release his/her medical records to legal advocates even if the conservator also has that right or duty.

Can a Conservator Charge For His Or Her Services?

Both the conservator of the person and the conservator of the estate are allowed to charge the estate a fee for the services provided to the conserved person. However, the fee charged must be reasonable for the services provided, and is limited by statute in certain cases. For example, an attorney should not charge his or her usual legal fees rate when conducting routine daily tasks such as grocery shopping. In addition, an attorney must get permission from the Court to perform and charge the estate for legal services. If a person is indigent, the conservator should be paid for by the probate court. It may be necessary to apply for a waiver of fees to have the conservator’s fees paid by probate court administration.

Are Conservators Required To Report To the Probate Court?

The conservator of the person must report at least annually on the respondent’s condition by filing a conservator’s report with the Probate Court. The conservator of the estate may be required by the Court to file a periodic account annually in the Probate Court and must be required if any interested party (which includes the respondent!) requests it.

How Is a Conservatorship Terminated?

A conservatorship may be terminated when the respondent makes a request in writing for the Court to terminate the conservatorship. Following that request, the Court must begin a hearing within thirty days but then it may be continued for good cause. The conserved person need not provide medical evidence and need only show that the conservatorship is no longer necessary by a preponderance of the evidence (less evidence than “clear and convincing”). If the hearing is not held or begun and continued for good cause within thirty days, the conservatorship “shall terminate.” Conservatorships of the estate are also terminated when the respondent’s assets are depleted.


Are Conservatorships Routinely Reviewed?

Conservatorships are reviewed one year after they are initiated and then at least every three years to determine the appropriateness of continuing, modifying, or terminating the conservatorship. Within forty-five days of a request from the Court, the conservator, and a physician must submit a written report to the Court on the condition of the respondent. The Court must provide copies of those reports to the conserved person and the attorney for the conserved person. If the Court determines by clear and convincing evidence that the person continues to be unable to care for himself or manage his affairs and that are no less restrictive means available to assist the person, the court can continue or amend the conservatorship. If the Court finds otherwise, the Court shall terminate the conservatorship. For these reviews, the Court has the discretion to hold a hearing, and must hold one within thirty days if it is requested by the conserved person, the conserved person’s attorney or the conservator.

CLRP will not appear as legal counsel in proceedings where legal counsel is provided by statute, but often represents clients in such matters by helping them understand the process and collaborating with appointed counsel on the case. For more information about conservators, contact the Connecticut Legal Rights Project.


UNDERSTANDING CONSERVATORSHIPS

Conservators are appointed by the Probate Court to assist individuals who are found to be incapable of caring for themselves and/or their property. They can play an important part in helping individuals with psychiatric disabilities manage aspects of daily living, such as paying bills, if they are unable to handle it themselves. However, conservators can exercise much control over an individual’s life, and that can sometimes interfere with the person’s ability to become as independent and self-sufficient as possible. Changes in the Connecticut conservatorship statute that went into effect on October 1, 2007 shift the emphasis to ensuring that people maintain as much independence and control over their decision-making as possible. This should help to ensure that conservators do not make decisions for people when they have the capacity to make those decisions themselves. Therefore, it is important that persons with psychiatric disabilities understand their rights as they relate to conservators.

Because appointing a conservator limits an individual’s freedoms, the State has established guidelines and procedures to assure that the rights of individuals are protected before a conservator is appointed. This flyer has been developed to answer some of the most frequently asked questions about conservators. It is not intended to provide legal advice or to address every detail related to conservatorship law and procedures.

What is a Conservator?

A conservator is a person appointed by the Probate Court to oversee the financial and/or personal affairs of an adult person who is found to be incapable of managing his or affairs for himself or herself. A conservator may also be appointed for a capable person who requests such assistance. In all cases, the conservator’s duties and powers are limited to those explicitly set out in the court order.

Are There Different Types of Conservators?

YES. There are two main types of conservators as well as special limited, temporary and voluntary conservators:
A CONSERVATOR OF THE PERSON is appointed to supervise an individual’s personal affairs, such as food, clothing, shelter, personal safety, and health care. A CONSERVATOR OF THE ESTATE is appointed to supervise the financial affairs of the individual. A person may have either or both types of conservators appointed, and the same individual may perform both functions, or they may be different people. There are also SPECIAL LIMITED CONSERVATORS who are appointed for a limited amount of time to consent to the administration of medication when a hospitalized person is incapable of informed consent or capable of consent, refusing to consent, and the court finds that continuing without medication will place the patient or others “in direct threat of harm,” and TEMPORARY CONSERVATORS, whose appointments are also time limited, who may be appointed to prevent immediate and irreparable harm. In addition, a person can ask the court to appoint a VOLUNTARY CONSERVATOR when he or she is not incapacitated. In that case, the court order would specifically not state that the conserved person is “incapable” and, according to the statute, the conservatorship will be terminated with thirty days notice to the probate court judge. However, there are many less restrictive ways to obtain help managing your finances or personal needs. You should consult a lawyer to determine if there is a less restrictive way to accomplish your goals than a voluntary conservatorship.


CONNECTICUT LEGAL RIGHTS PROJECT

Telephone (860) 262-5030

Fax (860) 262-5035 TOLL FREE (877) 402-2299

TTY (860) 262-5066


The information in this flyer is effective as of October 2008