Tuesday, April 30, 2019

Can an Involuntarily Conserved Person Make a Will?

The decedent, William, died on February 19, 2014. In 2006, he executed a Will naming his three children (Andrew, Zelda and Jonathan) from a prior marriage as beneficiaries. The children’s mother was deceased. William was married at his death to Frances. They were married for 33 years. Some time before William died, he suffered from several illnesses which included severe anxiety and depression, post-traumatic stress disorder from his service during World War II, mild to moderate dementia, impaired hearing and frequent urinary tract infections. As a result of his health issues, William was hospitalized at a residential psychiatric facility. In October of 2011, Frances filed an involuntary application for the appointment of a conservator of her husband’s person and estate. Following a hearing, a Connecticut Probate Court appointed her to be her husband’s conservator.
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Can a Conservator Sue for a Divorce on Behalf of a Conserved Person?

In 2009, two sisters brought an involuntary petition before a Connecticut Probate Court to have their father conserved. Jeannine sought appointment as the conservator of her father’s person, so that she could make decisions regarding her father’s health and well-being. Her sister, Jennifer, sought appointment as the conservator of her father’s estate, so that she could pay his bills. The Court granted the sisters’ petition and appointed each of them to the roles that they were seeking.

Approximately one week later, the father’s wife and the mother of the two sisters, sued the father for a dissolution of marriage (hereinafter a “divorce”). In the complaint, the wife, Gloria, alleged that her husband was incompetent. She named Jeannine and Jennifer as defendants, as conservators for her husband. Approximately one month later, the sisters on behalf of their father filed a cross complaint seeking a divorce. Some months later, Gloria filed a motion to dismiss the cross complaint, claiming that Jeannine and Jennifer could not bring a divorce action against her on behalf of their father. In their objection, the sisters claimed that a conservator does have the right to bring a divorce action on behalf of a conserved person because they were acting in his best interests. The trial court agreed with the wife and granted her motion to dismiss. Jeannine and Jennifer appealed this decision to the Connecticut Appellate Court. The issue for the Court was whether conservators of an involuntarily conserved person can seek a divorce on behalf of the conserved person.

Saturday, February 9, 2019

Pregnancy and Estate Planning

How Does a Pregnancy Impact Your Connecticut Advanced Directive?

A few years ago, you went to a lawyer who prepared an estate plan for you. You 
signed a couple of advanced directives known as a living will and an appointment of 
health care representative. Time passed and in 2018, you became pregnant. 
Then you learned that in that year the Connecticut General Assembly amended the 
statutes that govern advanced directives. Does this amendment impact your 
advanced directives in light of your pregnancy? 

Here is what you need to know.  

For more tips on Probate in Southeastern Connecticut see the blog at bmre.us/probate.

Tuesday, January 29, 2019

New Statutory Powers for Advanced Practice Registered Nurses

On October 1, 2018, a new law became effective as it applies to 

certain advanced directives. The change gives advanced practice

registered nurses the authority to perform certain functions that could

previously only be performed by physicians.

Public Act 18-168 (“the Act”) defines an advanced practice registered

nurse (a/k/a APRN) to mean an advanced practice registered nurse

licensed under Connecticut law who is selected by or assigned to a patient

and has the primary responsibility for the treatment and care of that patient.

Friday, December 28, 2018

How to Inherit by Establishing Paternity

Lafayette executed a will in 1997 leaving his musical instruments and equipment to a friend. He left the rest of his estate to his brother, James.

In 2004, Jim established - in Connecticut Superior Court - that Lafayette was his father. Lafayette had no knowledge that Jim was his son until it was established in court. Once paternity was established, the Court ordered Lafayette to pay child support for Jim because Jim had not yet reached 18.

Then Lafayette died in 2007. One month after he died, Jim filed an application to administer his father’s estate with the Windsor Probate Court. Jim did not know that his father executed a will in 1997, so he filed an application for an intestate estate. One week later, Lafayette’s brother - James - filed the 1997 will and an application to administer his brother’s estate as a testate estate.

For more on this topic go to https://bmre.us/paternity

Monday, November 12, 2018

Choosing the right Fiduciary to administer your estate

Choosing the Right Fiduciary to Administer Your Estate in New London County

It’s important to choose the right people to carry out your intent under a will. Your will appoints an executor who is the person you’ve chosen to wind up your estate at your death. You may also appoint a trustee under a will or a trustee under a Revocable Trust. A Trustee manages assets for a beneficiary of your property. Often, the executor and the trustee can be the same person but it doesn’t have to be that way. You can name two different people to serve in those capacities. What happens if you make the wrong choice and the person you’ve chosen is unable to perform his duties as your fiduciary? See More 

Saturday, November 10, 2018

Is There A Connecticut Presumption Of Sanity When Creating A Power Of Attorney?

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In 1993, Suzanne executed a will that left 50% of her estate to her son – Dan – and 50% to her granddaughter, Nicole. Suzanne began to suffer from hallucinations in 1995. Approximately one year later, Suzanne executed a power of attorney authorizing Nicole to handle her real estate transactions. At the time, Suzanne owned a home in New London. Everyone knew that she was executing this power of attorney in favor of her granddaughter.

A couple of days after she executed it, Suzanne was admitted to the hospital with hallucinations. While at the hospital, a doctor diagnosed her with mild senile dementia. Several months later, Nicole sold Suzanne’s home for $150,000 and purchased a condominium in Waterford for $100,000. Title to the condominium was in the name of Suzanne and Nicole’s mother (Darcy) as joint tenants with rights of survivorship. Suzanne remained in the condominium until her death five years later.

After Suzanne’s death, Darcy became the sole owner of the condominium. Dan sued Darcy as well as Nicole. In that lawsuit, he asked the court to impose a constructive trust on the condominium and any cash left over from the sale of Suzanne’s home in New London. Dan claimed that Darcy and Nicole intended to deprive Suzanne’s estate of its principal asset (the house in New London) and as a result, he lost out on his 50% interest in his mother’s estate. At the heart of Dan’s claim was that Suzanne lacked the mental capacity to knowingly execute her power of attorney.

At trial, several witnesses testified to Suzanne’s mental capacity. One of the witnesses was the doctor who treated her when she was admitted to the hospital. That doctor testified that after Suzanne was admitted, he diagnosed her with mild dementia. Also, after reviewing her medical records, the doctor testified that in his opinion, she suffered from moderate stage Alzheimer’s Disease. Nevertheless, he also testified that Suzanne’s situation was fluid and that she could be lucid at times. Finally, the court considered the records of the visiting health care providers who rendered care to Suzanne in the months leading up to her admission to the hospital. Those records indicated that Suzanne experienced occasional hallucinations and moments of confusion.

In deciding Dan’s case, the court cited to another case for the proposition that there is a presumption of sanity in the performance of legal acts. The court then stated that the medical evidence offered by Dan fell short of overcoming this presumption and concluded that he failed to prove his mother was incapable of executing her power of attorney. Since the court found that Suzanne had the capacity to execute her power of attorney, that meant that Nicole was properly authorized to sell the home in New London and purchase the condominium in Waterford.

The issue of capacity is one that comes up in my practice over and over again. The burden of proving a lack of capacity is onerous and difficult. Every case stands on its own facts. Ultimately, a court must determine whether someone has the capacity to execute a legal document and this determination is done with the understanding that there is a presumption in favor of capacity.

At Cipparone & Zaccaro, PC, we have a good deal of experience handling disputes over the use of a power of attorney. If you have questions related to capacity, please don’t hesitate to give us a call. We’d be happy to analyze the facts of your case and advise you according to the law.

About the Author  (click image for contact information)

We are pleased to announce that Mark Pancrazio has joined Cipparone & Zaccaro, P.C. Mark brings a wealth of experience in various areas of the law, including estate and trust administration, estate and trust litigation, estate planning, conservatorships and probate law. Mark is currently a member of the Elder Law Section of the Connecticut Bar Association and a former member of the Western Connecticut Senior Alliance. Mark practiced law in Danbury, CT before joining the firm.