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Conservatorship in Connecticut

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.

CT Department of Banking: Minimum Interest Rates for Security Deposits and Mortgage Escrows

The Connecticut Department of Banking has released new minimum statutory interest rates for mortgage escrows and residential tenant security deposits.  See Conn. Gen. Stat. §§ 49-2a and 47a-21(i), respectively.

The 2024 minimum interest rate for residential tenant security deposits is 0.55%. The minimum interest rate for mortgage escrow accounts is 0.6%.

 

Child Support vs. Extracurricular Activities

Court orders requiring parents to pay for extracurricular activities fall within Connecticut General Statutes Section 46b-56.  These orders are separate from Child Support orders.

Child Support orders do not encompass any and all payments to be made by a noncustodial parent.   Child Support orders do include unreimbursed medical related expenses, and work-related childcare expenses, which will be shared as a percentage of the parties’ net income (accounting for the child support payment).

Connecticut Child Support guidelines neither list nor define specific expenditures that comprise child support, but it is clear that such general categories of basic needs, like food, housing, clothing and transportation are fairly considered a part of child support.

For more discussion, see the Connecticut Appellate Court’s decision known as Marcus vs. Cassara, AC 45592.

Am I really “THAT” Old?!?  And if so, what steps to take once I admit I am no longer 29?

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 21st 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].

 

 

Posted August 9, 2022

A Receptionist / Legal Secretary Position is available at Marder, Roberson & DeFelice Law Offices, LLC located in Vernon, CT.  The ideal candidate will have some law firm experience, knowledge of Office365, and have excellent communication skills.  The applicant must have high attention to detail, be highly organized and possess an aptitude for multi-tasking.  We are looking for a highly ethical and responsible individual to join our team.  Please submit your resume and references to:  [email protected]

Documents needed when your “no-longer-baby” turns 18 and College is around the Corner

Written By Karen Elise Robbins
August 2, 2022

Every year as August approaches and summer is on its downward turn I start thinking about the start of the school year and the inevitable date when my college “kids” head back to campus. Though my sons never wanted help with packing, organizing or the like, the one thing I could insure is that when they leave, I have the correct paperwork to talk with their doctors, counselors and the like once they leave the protective walls of my home. Just as there existed no one guide to raising kids, few colleges list HIPAA releases and health care representative forms on their “To do” lists for students.

It isn’t actually leaving the nest that necessitates the signing of the above important documents, but your child’s 18th birthday. With two of my three already past 18, it still strikes me as incongruous that if one were to go to urgent care or the emergency room at 11:59 pm the night before their  18th birthday I could take charge, sign their forms,  speak with their doctors and make decisions for them if that is what I chose. Should the same emergency occur just a minute later, my child would be on their own and my rights to act on their behalf simply vanish. Watching my middle son’s perplexed attempt to fill out the requisite forms to have his wisdom teeth removed the weekend after high school graduation reinforced the fact that becoming a legal adult did not mean he was instantly ready to handle his medical care on his own. Truth is, in our medical system, no one should be solely left on their own to navigate their care no matter what age.

While, most of my practice is spent with the elderly and older clients, August brings in many younger clients. Those whose parents are “in the know” and smartly want to preserve their ability to advocate and act for their child at home as well as when they are away at school no matter the location.

What You May Need In A Medical Emergency to act on your teen’s behalf:

  1. Health Care Proxy(also referred to as a healthcare agent or medical power of attorney, a healthcare power of attorney, or durable power of attorney for health care)

This authorizes you to make medical decisions and it gives you access to their medical records and the ability to converse with their medical health care providers. By signing a healthcare proxy, your teen is appointing you to act on your behalf in making medical decisions should they so choose.

  1. HIPAA (Health Insurance Portability and Accountability Act)authorization (also called a HIPAA release) A more narrow document that permits the healthcare providers to disclose your  teen’s healthcare information to you or anyone they specify, in person, over the phone or through email, etc.  This document alone will often suffice for you to get information from the health care institution treating your child. In a HIPAA authorization, a young adult can stipulate that they don’t want to disclose information about such things sex, drugs, mental health, or other details that they prefer to keep private. As with the broader healthcare proxy, a HIPAA release can also include a Living Will if your teen so chooses.
  2. Durable Power of Attorney (Durable POA)

This enables a parent or other adult to make financial decisions on the student’s behalf. The POA can provide that power vests in you immediately after signing the document or that it vests only if your child becomes incapacitated. The POA permits the designated representative, among other things, to sign tax returns, access bank accounts, pay bills, make changes to your child’s financial aid package, or figure out tuition problems.

Call me so I can discuss the above documents with you. A bit of your time and a small fee will bring you invaluable peace of mind when your child heads towards their next stage of independence.

Now – on to Bed Bath and Beyond or Amazon to purchase the requisite XL sheets.

 

-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].

Connecticut Residential Evictions: Sept. 30, 2020 Executive Order No. 7X

On September 30, 2020 Governor Ned Lamont issued Executive Order No. 9E, which has a significant impact on residential evictions, including:

 

  1. Extension of Eviction Moratorium. The provisions of Executive Order No. 7X, Section 1, as modified by Executive Order Nos. 7NN, Section 4, 7DDD, Section 1, and 7OOO, Section 3 shall remain in effect until January 1, 2021, with the following modifications:

 

  1. No Notice to Quit or Service of Summary Process Before January 1, 2021. Section 47a-23 of the Connecticut General Statutes is modified to provide, “(g) No landlord of a dwelling unit, and no such landlord’s legal representative, attorney-at-law, or attorney-in-fact, shall, before January 1, 2021, deliver or cause to be delivered a notice to quit or serve or return a summary process action, for any reason set forth in this chapter or in sections 21-80 et seq. of the Connecticut General Statutes, except for nonpayment of rent due on or before February 29, 2020, for serious nonpayment of rent as defined herein, for serious nuisance as defined in section 47a-15 of the Connecticut General Statutes, or, provided the notice to quit is not delivered during the term of any existing rental agreement, for a bona fide intention by the landlord to use such dwelling unit as such landlord’s principal residence. For the purposes of this subsection, ‘serious nonpayment of rent’ means a rent arrearage equal to or greater than six months’ worth of rent due on or after March 1, 2020, which shall exclude all other costs, fees, attorney fees, and other charges arising from the tenancy.”

 

  1. All notices to quit issued before January 1, 2021 shall be delivered with a copy of the Declaration (“CDC Declaration”) attached to the CDC Order “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19,” 85 FR 55292 (September 4, 2020) (“CDC Order”). The CDC Declaration shall be attached in English and Spanish. Upon delivery of the executed CDC Declaration to the landlord, landlord’s legal representative, attorney-at-law, or attorney-in fact by a tenant or representative of the tenant, the landlord shall immediately and for the effective period of the CDC Order cease all action to evict.

 

  1. All notices to quit for nonpayment of rent for rent due on or before February 29, 2020 that are issued before January 1, 2021 shall specify and recite the period of nonpayment of rent before February 29, 2021 for which rent has not been paid.

 

  1. All notices to quit and all complaints in summary process actions for serious nonpayment of rent that are issued before January 1, 2021 shall specify and recite the amount of the rent arrearage due on or after March 1, 2020, the months for which rent has not been paid, and in what amounts.

 

  1. All notices to quit issued before January 1, 2021 based upon the bona fide intention by the landlord to use such premises for the landlord’s principal residence shall state that reason and specify the expiration date of the lease.

 

A copy of Executive Order No. 9E is available here:

https://portal.ct.gov/-/media/Office-of-the-Governor/Executive-Orders/Lamont-Executive-Orders/Executive-Order-No-9E.pdf

Attorney Dale C. Roberson attends CBA Annual Bankruptcy Conference

Attorney Dale C. Roberson attended the Connecticut Bar Association, Annual Connecticut Bankruptcy Conference, on October 4th, 2018, at Water’s Edge Resort and Spa, in Westbrook, Connecticut. The seminar was a full day of discussing bankruptcy issues involving; new Local Bankruptcy Rules, trends in Consumer Bankruptcy, Article 9 Sales, Chapter 13 Updates, Individual Chapter 11 Bankruptcy, Not-for- Profit Insolvencies and Legal Ethics. Several bankruptcy judges attended this conference, including, Honorable Julie A. Manning, Honorable Ann M. Nevins and Honorable James J. Tancredi. The event was attended by approximately 150 members for the Connecticut Bar Association. Attorney Roberson has practiced in the bankruptcy field for over 35 years.

Associate Professor Deborah Thorne, of the University of Idaho, was a featured speaker on the subject of Consumer Bankruptcy. For two decades, Professor Thorne has studied the economic inequality of consumer bankruptcy. Professor Throne made many observations and predictions as part of her presentation. In years past, Medicare coverage was adequate and out-of-pocket expenses were approximately 12% of income. Defined benefit plans paid 62% of income and post- retirement health insurance was very common. Consistently, the leading causes of bankruptcy are job loss (decline in income) and excessive medical expenses. Households can typically struggle for years in a “sweatbox” before they file bankruptcy. Bankruptcy is not a low socioeconomic status phenomenon; chapter 7 filers are mostly homeowners with some college background. Chronic issues include: inadequate income, health struggles, and being older; which make a fresh financial start unlikely. A situation now exists in the United States, whereby “a myriad of risks that were once managed and pooled by government and private corporations have been shifted onto individuals and families”. Defined benefit plans now pay 17% of income and have been replaced with Defined Contribution plans and investment decisions left to individuals. Full retirement age for Social Security has increased to 70. Inadequate coverage from Medicare, which out-of-pocket expenses has increased to 20% of income. Employers are dropping retirees’ post- retirement healthcare. Given these shifts, increase in future elder filings are predictable.

Implications of the risk shifts for older Americans: The wealth of older Americans is being stripped. At the time of their bankruptcies, older Americans had negative wealth of $17,390. Many Americans have emptied their retirement accounts to repay their debts. The wealth that should have been there to sustain retirees until they die is gone; their wealth has been transferred to the health care industry and the lending industry.

Elder bankruptcy should be rare. The projected increases, which will disproportionately affect single senior women are a result of governmental and business policy changes. Will our government pass legislation to mitigate these future bankruptcies from happening?

Let us help you represent yourself!

In our opinion, it is always preferable to have an attorney for “full representation”. Custody and divorce cases are lawsuits. A complaint is filed in the Superior Court. If an agreement is not reached, the case will go to trial. The rules of evidence apply. There are ‘discovery’ obligations, and complicated statutes and judicial decisions (“caselaw”) to be aware of. Mistakes can be costly even if an agreement is reached, and there are times when clearly the parties to the case should have full legal counsel. An attorney who files a ‘full’ appearance will go to court for all court events such as “short calendar” proceedings (which are rarely ‘short’), hearings, settlement conferences, and trial.

However the cost to hire full legal counsel in a custody or divorce case can be prohibitively expensive for some individuals. Some parties return to court repeatedly, making the process expensive. Each court appearance usually results in hourly billing. A party does not have direct control over the number of court appearances required, because their spouse may file multiple motions during the course of the proceeding, or even post-judgment. The party can feel that attorney fees are not being controlled, yet the attorney is ethically obligated to appear in court for each event, prepare for the event, and provide competent representation.

Consider these options when faced with a divorce or custody case:

1) Will a motion for attorney fees be successful? The motion can be filed, to request that the Court order the other party, to pay your attorney fees.

2) Is borrowing funds for an attorney an option? The Automatic Orders prohibit incurring unreasonable debt. These orders prohibit ‘encumbering’ property but they provide an exception for “reasonable attorney’s fees in connection with [the] action”.

3) Is “Standby Counsel” appropriate? When an attorney is hired as standby counsel, the attorney typically will not enter an “Appearance” in the case. Sometimes the attorney may file a “Limited Appearance”. When an attorney is hired as Standby Counsel, the individual represents himself or herself in Court. The attorney however can be retained to meet with the client from time to time, such as to give advice relating to procedural or other issues in the case. The attorney can review proposals that the parties might agree to among themselves. The attorney might assist with the preparation of certain court motions.

We encourage you to consider “Standby Counsel” if you feel you cannot afford an attorney.

Marder, Roberson & DeFelice Law Offices, LLC
76 South Frontage Road
Vernon, CT 06066
Email: [email protected]