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The State’s Probate Courts Need to Be Fixed. Here’s How.

Jul 12, 2019 - By Tom Behrendt  and Sally Zanger - Special to Hartford Courant - A conservator stole money from her elderly and disabled clients and was prosecuted and sentenced in federal court. Connecticut Probate Administrator Paul Knierim stated that the incident was unfortunate but that safeguards are in place. Judge Knierim suggested that such abuses are rare.  These reported abuses are the tip of an iceberg. The safeguards he referred to do not address the problems.

As lawyers who represent low-income individuals with mental health conditions, we and our colleagues who represent elderly clients too often see court-appointed conservators mismanaging the conserved person’s money. Life savings, however modest, are frequently wasted due to conservators’ ignorance of the Medicaid rules. Conservators may pay a nursing home nearly all of an individual’s assets, making their return home difficult or impossible. Often, these same conservators are quick to move the person to a nursing home without exploring community supports that would allow them to remain at home. In most situations, the Connecticut law requires that a conservator explore such less restrictive options before moving an individual to a nursing home.

But, it does not matter what the law says, because they don’t always follow the law. The law, enacted to protect vulnerable conserved individuals, is frequently ignored by those whose job it is to carry it out.

For example, the statute requires most conservators to provide a bond, which is a kind of insurance to protect the conserved individual’s assets from loss caused by fraud, negligence, theft or misrepresentation by the conservator. However, the probate courts rarely enforce that requirement, leaving people like the victims of the federally sentenced conservator unprotected.

When these issues have been exposed in the press over the years, probate court administration explains them away as isolated incidents. That is not the experience of our clients. We see theft, fraud, sloppy accounting and gross mismanagement of the conserved individuals’ funds. Sometimes the sums are smaller, because our clients are not wealthy, but the sums represent everything they have. Or had.

Too often, advocates for people who are elderly and disabled see this pattern: conservators (or their family members or colleagues) are enriched at the expense of a conserved individual under the excuse of making the conserved individual eligible for Medicaid. For example, we have seen that when someone’s home was sold to pay for a nursing home, the sale may be a “sweetheart” arrangement where the conservator is paid for doing the closing and the selling price is such that a colleague, relative or friend of the conservator purchases the real estate and flips it for a large profit. None of that profit benefits the conserved person (or the nursing home or by extension, the state and its taxpayers).

A colleague appealed one such case to Superior Court and won. The judge said that “substantial rights of the (conserved person) were gravely prejudiced” by the failure of the court to follow the statute and by the failure of the attorney to provide zealous advocacy. Despite a request to have him removed from the appointment list, he is still handling these cases.

This kind of self-dealing is not isolated or unique. Many people involved in the probate court system profit by exploiting conserved individuals.

It is unconscionable that the probate courts fail to take steps to prevent fraud and mismanagement. It is an embarrassment to the probate courts that it is the federal court and the federal prosecutors, not the probate courts, who have been addressing these problems.

It is absurd that random audits are touted as the solution to these problems when actual incidents that are pointed out are not punished or corrected by probate court judges. The offenders continue to be appointed as conservators and court-appointed attorneys.

Connecticut has a modern, even a model conservatorship statute, but it is too often ignored. The safeguards that are in place did not and would not protect the victims of the federally sentenced conservator. A bond would have protected them. A vigilant probate court might have protected them. Vigilant court appointed attorneys might have protected them. But no one protected them.

A system that required training might have protected them. A system where these cases were heard in Superior Court would have protected them.

Connecticut can choose to protect its most vulnerable residents. It just needs the political will to make the necessary changes.

Tom Behrendt is counsel emeritus at the Connecticut Legal Rights Project. Sally Zanger is a staff attorney at the Connecticut Legal Rights Project.

[ View Article on Hartford Courant ]

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