Part I: Involuntary Conservatorships
A conservatorship is a serious legal remedy. It strikes at the heart of a person’s natural right to self-determination, and it abridges the freedoms endemic to citizens of the United States. Connecticut permits involuntary conservatorships, temporary conservatorships, and voluntary conservatorships. This article is Part I of a three part series on the process of appointing conservators in Connecticut. It explores how Connecticut’s Probate Courts determine whether a conservatorship is necessary.
Under the Fourteenth Amendment to the United States Constitution, “No State shall…deprive any person of life, liberty or property, without due process of law.” The State of Connecticut has codified this right in its own Constitution: “No person shall be…deprived of life, liberty, or property without due process of law.” See Connecticut Constitution, Article I, Section 8(a). Hence, a conservatorship triggers due process rights under both the state and federal constitutions. “Due process” means that the respondent—the person against whom a conservatorship is sought—is given adequate notice and the opportunity to be heard—essentially, a court hearing. Any person can file an application to conserve another; however, it must be supported by a physician’s evaluation.
Once the application has been filed and legally served on the respondent, a Probate Court hearing will be held within 30 days of the application. Since the proceeding may result in the deprivation of some (or all) of the respondent’s constitutional rights, the respondent is entitled to legal representation at the hearing. The conservatorship hearing is governed by the Connecticut Rules of Evidence, meaning that any witnesses are subject to cross examination.
To order a conservatorship, the Probate Court must find by clear and convincing evidence that the respondent is unable to care for himself or his finances. The clear and convincing evidence standard is rigorous. It means that the Probate Court is about 80% sure that the respondent cannot care for himself. In weighing whether to conserve the respondent, the Probate Court considers the individual’s abilities, capacity to understand, ability to articulate informed decisions regarding his care, past preference and lifestyle choices, cultural background, continuity in living situation, and previous execution of a durable power of attorney or conservatorship designation. The Probate Court will also gather evidence from the respondent’s family regarding his past preferences and practices, consider available technologies, services, and means to assist the respondent, and evaluate other relevant and material information obtained from the respondent.
The appointment of an involuntary conservator in Connecticut is onerous—and it should be. Conservatorships strip fundamental liberties and constitutional rights from a respondent. As such, the respondent is afforded due process rights, the right to an attorney, and the protection of the Connecticut Rules of Evidence. The Probate Court weighs the proffered evidence using the “clear and convincing evidence” standard of proof. But… what happens when the life of the respondent is in danger, and there isn’t time to wait 30 days for a hearing? Part II of this series will tackle that issue.