Continuing our series about conservatorship guidelines in Connecticut. It’s important to touch base on whether you have any control over who the court appoints as your conservator. As well as whether they will take into consideration your power of attorney agent.

People who have watched the Netflix documentary about Britney Spears’ court battle over her conservatorship, and trying to remove her father as her conservator probably think:

“IF I AM EVER CONSERVED BY A COURT, I HAVE NO CONTROL OVER WHO WILL SERVE AS MY CONSERVATOR.”

Unfortunately, Britney has not been successful in removing her father as her conservator. There is however something folks in Connecticut CAN do to ensure they are not in her situation. Her story reminded me of a client I assisted back in 2007. Here is his story, which helps to explain why this statement is FALSE.

 

Related Post: What Is A Conservator?

 

Can Your Power of Attorney Serve As Your Conservator?

A True Story About The Probate Court Having The Final Say

Back in 2007, I was involved in a Conservatorship proceeding in a local Connecticut Probate Court. The judge decided against my argument. Although that is hard to admit, I do not say it with any sense of failure. The law and the facts were stacked against me.

With one fact changed, however, it could have been a different outcome. Which is why I feel the necessity to tell this story.

This story’s main character is Mr. Smith. An 85-year-old man with dementia. Even before the onset of his incapacity, Mr. Smith is what most people would call a recluse. Rarely socializes or leaves his modest (some might say dilapidated) cottage in northeastern Connecticut.

He served his country in World War II and saved every penny he made. He took those pennies and started investing in stocks and real estate. Over the years he amassed a multi-million dollar estate.

Statutory Short-Form Durable Power of Attorney Designation

He executed a Will, stating that upon his death over 98% of his estate should be passed to charities dear to him. With the dilapidated cottage bequeathed to his dear friend, Mrs. Jones.

He also executed a Statutory Short-Form Durable Power of Attorney, naming Mrs. Jones to serve as his agent for finances. But only if there ever came a time that he could not do so himself.

{SIDE BAR} If you have met with me or follow our blog, you have heard me talk about Powers of Attorney. The primary reason that I advise every adult 18 and older to execute one is so your loved ones do not have to go through an expensive and painful court proceeding if you should become incapacitated (i.e., a conservatorship).

A Durable Power of Attorney allows the person you name as your agent to take care of your finances. Even if you become incapacitated and are determined incompetent by your physician or a court of law.

Back to Mr. Smith—in the spring of 2006, the Connecticut Department of Social Services (“DSS”) received a call from a neighbor of Mr. Smith’s. This neighbor thought that Mr. Smith might need State assistance based on the dilapidated condition of his house. Around the same time, Mrs. Jones brought Mr. Smith to me to discuss his estate plan. At that meeting, I reviewed his current documents (the Will and Durable Power of Attorney).

Those documents were properly executed. Although the third important document (namely the Advance Health Care Directive) was not included in his estate plan, I determined that he did not have the legal capacity to execute such a document at that time.

Mrs. Jones expressed similar concerns to that of Mr. Smith’s neighbor. Not because of the state of his house, but because after knowing him for many years, she noticed, as I had, that his cognitive functions were failing. He was forgetting to take his medication and bathe himself regularly.

 

Related Post: Conservator Of The Estate Vs. Conservator Of The Person

 

DSS Filed a Petition To Appoint a Conservator Of The Estate

Meanwhile, the Department of Social Services began its investigation. They determined that Mr. Smith’s condition warranted a Conservatorship. DSS filed a Petition to appoint a Conservator of his Estate (to manage his financial affairs) and a Person (to manage his health and personal needs). They assumed Mr. Smith needed monetary assistance to improve his situation.

Upon receiving the Petition from DSS, the Court appointed an attorney to represent Mr. Smith, which is required in a Conservatorship proceeding. The court-appointed attorney agreed that Mrs. Jones would be the best choice to serve as Mr. Smith’s Conservator of the Person (which means that she would take care of his personal needs, meet with him regularly and make sure he is healthy and happy).

But after the attorney discovered that Mr. Smith had a small fortune, he recommended to the Judge that a financial institution serves as Conservator of the Estate (i.e., take care of his finances). EVEN THOUGH MR. SMITH HAD APPOINTED MRS. JONES IN HIS VALIDLY-EXECUTED DURABLE POWER OF ATTORNEY (I’m sorry for shouting…this makes me angry.)

Connecticut Law Allows The Probate Court To Appoint a Third Party

Remember when I said that the law was not in our favor? Here’s why: Under most circumstances, Connecticut law allows a Probate Court to appoint a different party to serve as Conservator of the Estate. Someone other than the party named by the proposed conserved person in his or her Power of Attorney.

Mr. Smith never wanted institutional involvement in his financial or other affairs. By signing a Durable Power of Attorney, he took the steps that he thought would ensure that his friend would be able to serve as his agent. Only if he ever got to the point of not being able to do it himself.

Regardless, the Court, in this case, determined that it would be in the best interest of Mr. Smith to have a financial institution (that charges over $30,000 per year) manage his funds.

 

Related Post: Power Of Attorney In Connecticut – Basic Rules

 

How To Maintain Control Over Your Own Conservatorship Before You Need One!

So when is a Court not allowed to appoint a different party? One would think that showing the Court Mr. Smith’s Power of Attorney would be enough since that document shows his intent. But a Statutory Power of Attorney is not necessarily enough. You must also designate the person you want to serve as your conservator.

How do you do this? A Designation of Conservator, which can be included in your Power of Attorney document or a separate document. In either case, the document must be properly witnessed and notarized.

{SIDE BAR} For those of you who have executed a Power of Attorney with our firm, you have this designation; because the Designation of Conservator is part of our standard documents.

If you have not executed a Power of Attorney or are unsure if your Power of Attorney includes a designation of a conservator, please contact us.

Even if your document includes the designation of a conservator if you find that your Power of Attorney was executed prior to 2016, I highly recommend executing a new one because the laws have changed in your favor since then. The new favorable laws only apply to the documents executed after the 2016 law was passed.

 

TRUTH: If you have a validly-executed Designation of Conservator, then (if and when you need to be conserved like Mr. Smith or Britney Spears) YOUR designated person will be appointed as your conservator. Not someone else chosen by the Court.

Disclaimer: The information provided in this article does not, and is not intended to, constitute legal advice and is for general informational purposes only.

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