AUGUST 1, 2011 VOLUME 18 NUMBER 28
It is a recurring question in guardianship and conservatorship cases: when there is family conflict, or an allegation that a family member has taken advantage of an individual, who should the courts appoint to manage the person’s financial and personal affairs? Family should have priority, of course — but what should the courts do when family members have misbehaved?
We have written about earlier cases from other jurisdictions. Some examples: in a Wisconsin case in 2000, a court decided that a chosen family member should have priority even though it appeared that there might be conflicts with caregivers. A California court in 2004 removed a family member and appointed a private fiduciary as trustee and personal representative (executor) after family disputes ran up legal bills of almost four hundred thousand dollars. And a 1996 case in Arizona upheld the appointment of a professional private fiduciary over the objections of family members.
A recent Connecticut case adds a new element to the family-vs-professional-fiduciary discussion. It deals with how the court should select a private fiduciary once it becomes apparent that family members can not serve.
In the summer of 2007 Janet Follett decided that her mother, Zoe Ross (both names have been changed here), had declined to the point that appointment of a conservator was appropriate. Ms. Follett had held her mother’s power of attorney for quite some time — though the power was a so-called “springing” power of attorney, which was not effective until a doctor certified that Ms. Ross had become incapable of handling her own affairs. Ms. Follett had secured the appropriate doctor’s statement earlier in the year. She had in fact been handling her mother’s finances for some time before that — she had been a joint signer on Ms. Ross’s bank account since 2002, for example.
Ms. Follett and her sister did not see eye-to-eye when it came to handling their mother’s affairs. In the course of the court proceedings to secure a conservatorship, the court-appointed attorney for Ms. Ross agreed with Ms. Follett’s sister that it would be better if a neutral professional was appointed as conservator.
At a four-day hearing early in 2008, the judge heard testimony from nine different witnesses about Ms. Ross’s condition, the suitability of Ms. Follett to serve as conservator, and the size and nature of Ms. Ross’s estate. Later, the judge entered an order finding that Ms. Follett should be disqualified to serve as conservator. Instead, the judge appointed local lawyer Robert Mirto to serve as conservator. Mr. Mirto had not testified, had not been discussed in the hearing process, and had not been interviewed by the parties about his possible service as conservator.
Ms. Follett appealed, arguing that (a) she should have been appointed as conservator and (b) if she wasn’t going to be appointed, she should have been given a chance to interview the prospective conservator, to object to the individual and to suggest other candidates. The Connecticut Appellate Court agreed with her as to the second argument, but not as to the first.
The appellate court noted that there was evidence of at least some transactions that Ms. Follett should not have entered into using her authority as co-signer and agent on her mother’s power of attorney. In addition, both her sister and the court-appointed attorney argued for appointment of a non-family member as conservator. Given those circumstances, said the appellate judges, the lower court was justified in choosing a professional fiduciary over a family member.
But it was improper, agreed the appellate court, for the judge to simply choose a favorite fiduciary to serve. The history of probate court — and especially of Connecticut’s unusual probate system, relying as it does on part-time non-lawyer probate judges — made it important to strive for open and transparent administration of conservatorships. Recent Connecticut legislative changes had heightened the focus on those values, and had been part of an effort to change the culture of probate courts in the state. Given that background, the selection of a private fiduciary should be more open and concerned participants should be given an opportunity to participate in the process.
The appellate judges directed that the selection decision should be referred back to the probate court for a new hearing. The court’s decision not to appoint Ms. Follett was approved, but the appointment of Mr. Mirto was reversed and the probate court instructed to give the parties an opportunity to be heard on selection of a non-family member conservator. Falvey v. Zurolo, July 19, 2011.
What will the follow-up hearing look like? Nothing in the appellate opinion makes clear how it might work. The only indication is that Ms. Follett (and, for that matter, her sister and the court-appointed attorney) must be given notice of who is being considered, and an opportunity to challenge the appointment of that individual. The probate judge might well choose to appoint Mr. Mirto again, though any objections will need to be disposed of first.