Category Archives: Estate Planning

This information was prepared by Attorney Karen Elise Robbins.

In Connecticut, the terms conservator and guardian are not interchangeable. A conservator is “a person appointed by the Probate Court to oversee the financial and/or personal affairs of an adult who is determined by the Probate Court to be incapable of managing his or her finances or unable to care for himself or herself. A conservator may also be appointed for a person who voluntarily requests such assistance.”  A guardian, however, is an individual who legally can make decisions for a minor under the age of eighteen. The Probate Court may appoint a guardian for someone over the age of eighteen with intellectual disabilities that were identified before the age of majority.

There are two types of Conservatorships:

1. A conservator of the person makes health care decisions, determines living arrangements, controls activities of daily living and essentially controls everything except for the finances of the conserved person.
2. A conservator of the estate takes care of the conserved person’s financial affairs. It is rare to have a conservator of the person without also having a conservator of the estate.

The Parties to a Conservatorship include:

1. The Petitioner – the person who applies to the Probate Court to act as the conservator for the person they believe requires assistance.
2. The Respondent – the person who the petitioner wishes to have conserved.

Conservatorships in Connecticut can be Voluntary or Involuntary:

1. Involuntary conservatorship uses a clear and convincing standard. The Probate Court is very protective of taking away the rights of any individual and will always look for the least restrictive option in order to maintain the Respondent’s independence. The Court will appoint an attorney for the Respondent to protect their best interests throughout the Court proceedings.
2. Voluntary conservatorship is entered into willingly by the Respondent and can be cancelled by the conserved party at any time by providing 30 days’ notice to the Court. Complicating matters, however, is that people who choose voluntary conservatorship frequently change their minds and often require further Court proceedings if an involuntary conservatorship is necessary. This process incurs additional expense and delay. It follows, that unlike Connecticut, many states do not permit voluntary conservatorships.

Procedures to Obtain Involuntary Conservatorship:

1. To involuntarily conserve an individual, the Petitioner must file an application for Conservatorship with the appropriate Probate Court. There are specific Probate Forms which must be completed by the Petitioner or their Attorney. The Petitioner must also file a specific medical form which has been completed by a physician who has examined the Respondent within forty-five days prior to the application.
2. The Petitioner must have a State Marshall serve the Respondent with papers at least ten days before the hearing.
3. The Court will send a Notice of Hearing to the Spouse or Children of the Respondent if they are not ones requesting the involuntary conservatorship.

Temporary Conservatorship:

In emergent situations, a temporary conservator may be appointed by the Court at the request of someone with an interest in the welfare of the Respondent. In such a case, this Petitioner must have a physician examine the Respondent and file the medical report within three days of the filing of the petition for temporary conservatorship. There are specific timelines that the parties and Court must follow, but typically a hearing will be heard within seven business days. If waiting for a hearing would put the Respondent in “immediate and irreparable” danger, a Petitioner can file for an “ex parte” temporary conservatorship. This alternative appoints the conservator without a hearing, but the Court must hold a hearing on the matter within three business days.  A temporary conservatorship will expire thirty days after it is granted unless the Petitioner takes legal steps to extend it.

Other Options:

With advanced planning, the need for a Court appointed conservator may be avoided all together. It is prudent to meet with an elder law/estate planning attorney to execute a Durable Power of Attorney (to choose who will manage one’s financial affairs in the case of incapacity) and an Appointment of Health Care Proxy and Living Will (to determine who will manage one’s health care decisions and specify wishes regarding potential treatment). One can even designate a specific person as a conservator should one become necessary.  The above documents MUST be completed while one has the mental capacity to do so. If there is questionable or lack of mental capacity an attorney ethically cannot execute these documents, and the involvement of the Probate Court will be needed to request an appointment of conservator. A conservatorship involves the ongoing additional costs of required accountings to the court as well as the need to obtain court approval for many financial and day to day transactions. Advanced planning saves stress and greatly reduces financial costs.

–Karen Elise Robbins, Esq.

Written By Karen Elise Robbins
August 22, 2022

My birthday is in August. It is a great time of year to enjoy the day and conveniently forget how to count. After all, what is the purpose in subtracting the current year from the year I was born to reinforce the fact that I am no longer twenty-nine, or thirty-nine….? Okay, I believe you get the picture.  Can you imagine my shock and dismay when in the mailbox I recently received a welcome envelope from AARP? I double checked and, yes, it was in fact my name on the envelope. I did not sign up; I did quickly recycle the mailer, and then I determined it was a good catalyst for this blog post.

Most parents realize that they need to have a will in order to specify who will raise their children should the worst come to pass. These wills might simply leave everything to the children in some form of trust, and name the desired guardians. Locating the will and admitting it to probate can take time. Connecticut, however, allows for Guardianship Memorandums.  Simply put, these super brief documents when drafted and executed correctly, can be brought to the probate court and the judge can immediately appoint the chosen guardian while the rest of the will slowly meanders through the legal system.

At a minimum, what other documents in addition to a basic will and guardianship memorandum should you have long before you turn……forty-nine for the second time?

1. Advanced Health Directives which include:
   1. Designation of a Health Care Proxy
   2. HIPAA release
   3. Living Will
2. Durable Power of Attorney
   1. This important document grants the power to your designated representative to manage your financial affairs, survives your potential incapacity, and stays in force until you choose to revoke it (you can shred it to pieces if you desire) or your death.
3. Confirmation that any retirement accounts, life insurance policies and the like have listed beneficiaries.

I am happy to answer any questions you have regarding the above mentioned documents. A bit of your time and money will guaranty that you can pretend to be any age you want, while feeling secure that you and your loved ones are protected.

For the record, I have heard that AARP offers some excellent discounts. For the moment, however, I will stick to the savings during Tax Free Week, which for the record starts today, August 21^st and continues through next Saturday. Happy Shopping.

-Karen

Karen Elise Robbins is an attorney admitted to practice law in Connecticut. She has completed her L.L.M. degree in Elder Law and Estate Planning from Western New England School of Law. She can be contacted at (860)871-8000 or [email protected].

On Friday, November 18, 2016 Attorney Dale C. Roberson attended the Connecticut Bar Association’s 2016 Federal Tax Institute of New England. This educational event included national speakers presenting on cutting edge tax and estate planning issues, affecting individuals and businesses.

Topics included:

Modern Uses of Partnerships in Estate Planning;
Choosing Wisely Among Charitable Income Plans;
Connecticut Income Tax and Estate Tax Domicile and Residency Audits;
Annual Taxable Gifts, and Business Succession Planning;
Fiduciary Income Tax.

Attorney Roberson has practiced law in Connecticut for more than 30 years, most of that serving individuals and businesses in Hartford and Tolland counties. Attorney Roberson’s practice is focused on estate planning, elder law, bankruptcy, civil litigation, and a wide range of legal matters.

He can be reached at (860) 872-3000, or by email: [email protected]