Download Conservatorship - Connecticut Resident Services Coordinator Training

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.
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.
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.
CONNECTICUT LEGAL RIGHTS
PROJECT
Telephone (860) 262-5030 • Fax (860) 262-5035
TOLL FREE (877) 402-2299
TTY (860) 262-5066
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
The information in this flyer is effective as of October 2008
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.
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.