§ 45a-655 — (Formerly Sec. 45-75). Duties of conservator of the estate. Application for distribution of gifts of income and principal from the estate. Determinations re breach of fiduciary duty.

Connecticut § 45a-655

• Jurisdiction: Connecticut
• Title 45a: Probate Courts and Procedure
• Ch. 802h: Protected Persons and Their Property

Text

(a) A conservator of the estate appointed under section 45a-646, 45a-650 or 45a-654 shall, within two months after the date of the conservator's appointment, make and file in the Probate Court, an inventory, under penalty of false statement, of the estate of the conserved person, with the properties thereof appraised or caused to be appraised, by such conservator, at fair market value as of the date of the conservator's appointment. Such inventory shall include the value of the conserved person's interest in all property in which the conserved person has a legal or equitable present interest, including, but not limited to, the conserved person's interest in any joint bank accounts or other jointly held property. The conservator shall manage all the estate and apply so much of the net income thereof, and, if necessary, any part of the principal of the property, which is required to support the conserved person and those members of the conserved person's family whom the conserved person has the legal duty to support and to pay the conserved person's debts, and may sue for and collect all debts due the conserved person. The conservator, in the exercise of his or her duties and authority, shall be guided by the standards of practice adopted under subsection (h) of section 45a-77 and shall use the least restrictive means of intervention. (b) Any conservator of the estate of a married person may apply such portion of the property of the conserved person to the support, maintenance and medical treatment of the conserved person's spouse which the Probate Court, upon hearing after notice, decides to be proper under the circumstances of the case. (c) Notwithstanding the provisions of section 45a-177 , the court may, and at the request of any interested party shall, require annual accountings from any conservator of the estate and the court shall hold a hearing on any such account with notice to all persons entitled to notice under section 45a-649 . (d) In the case of any person receiving public assistance, state-administered general assistance or Medicaid, the conservator of the estate shall apply toward the cost of care of such person any assets exceeding limits on assets set by statute or regulations adopted by the Commissioner of Social Services. Notwithstanding the provisions of subsections (a) and (b) of this section, in the case of an institutionalized person who has applied for or is receiving such medical assistance, no conservator shall apply and no court shall approve the application of (1) the net income of the conserved person to the support of the conserved person's spouse in an amount that exceeds the monthly income allowed a community spouse as determined by the Department of Social Services pursuant to 42 USC 1396r-5(d)(2)-(4), or (2) any portion of the property of the conserved person to the support, maintenance and medical treatment of the conserved person's spouse in an amount that exceeds the amount determined allowable by the department pursuant to 42 USC 1396r-5(f)(1) and (2), notwithstanding the provisions of 42 USC 1396r-5(f)(2)(A)(iv), unless such limitations on income would result in significant financial duress. (e) Upon application of a conservator of the estate, after a hearing with notice to the Commissioner of Administrative Services, the Commissioner of Social Services and to all parties who may have an interest as determined by the court, the court may authorize the conservator to make gifts or other transfers of income and principal from the estate of the conserved person in such amounts and in such form, outright or in trust, whether to an existing trust or a court-approved trust created by the conservator, as the court orders to or for the benefit of individuals, including the conserved person, and to or for the benefit of charities, trusts or other institutions described in Sections 2055(a) and 2522(a) of the Internal Revenue Code of 1986, or any corresponding internal revenue code of the United States, as from time to time amended. Such gifts or transfers shall be authorized only if the court finds that: (1) In the case of individuals not related to the conserved person by blood or marriage, the conserved person had made a previous gift to that unrelated individual prior to being declared incapable; (2) in the case of a charity, either (A) the conserved person had made a previous gift to such charity, had pledged a gift in writing to such charity, or had otherwise demonstrated support for such charity prior to being declared incapable; or (B) the court determines that the gift to the charity is in the best interests of the conserved person, is consistent with proper estate planning, and there is no reasonable objection by a party having an interest in the conserved person's estate as determined by the court; (3) the estate of the conserved person and any proposed trust of which the conserved person is a beneficiary is more than sufficient to carry out the duties of the conservator as set forth in subsections (a) and (b) of this section, both for the present and foreseeable future, including due provision for the continuing proper care, comfort and maintenance of such conserved person in accordance with such conserved person's established standard of living and for the support of persons the conserved person is legally obligated to support; (4) the purpose of the gifts is not to diminish the estate of the conserved person so as to qualify the conserved person for federal or state aid or benefits; and (5) in the case of a conserved person capable of making an informed decision, the conserved person has no objection to such gift. The court shall give consideration to the following: (A) The medical condition of the conserved person, including the prospect of restoration to capacity; (B) the size of the conserved person's estate; (C) the provisions which, in the judgment of the court, such conserved person would have made if such conserved person had been capable, for minimization of income and estate taxes consistent with proper estate planning; and (D) in the case of a trust, whether the trust should be revocable or irrevocable, existing or created by the conservator and court approved. The court should also consider the provisions of an existing estate plan, if any. In the case of a gift or transfer in trust, any transfer to a court-approved trust created by the conservator shall be subject to continuing probate court jurisdiction in the same manner as a testamentary trust including periodic rendering of accounts pursuant to section 45a-177 . Notwithstanding any other provision of this section, the court may authorize the creation and funding of a trust that complies with section 1917(d)(4) of the Social Security Act, 42 USC 1396p(d)(4), as from time to time amended. The provisions of this subsection shall not be construed to validate or invalidate any gifts made by a conservator of the estate prior to October 1, 1998. (f) When determining whether a conservator has breached a fiduciary duty, the Probate Court having jurisdiction over the conservatorship may consider evidence of a conservator's failure to adhere to a provision contained in the standards of practice adopted under subsection (h) of section 45a-77 but such failure shall not, in itself, constitute a breach of fiduciary duty. See Sec. 17b-261b re Probate Court's responsibility to cooperate with Department of Social Services concerning applications for spousal support. See Secs. 45a-166, 45a-660 re distribution of proceeds from sale of real estate. See Sec. 45a-203 re investment of funds held by the trustees, guardians or conservators. See Sec. 45a-595 re investment of funds in insurance and annuity contracts by conservator or guardian of estate.

Legislative History

(1949 Rev., S. 6878; P.A. 73-34, S. 2; P.A. 77-446, S. 7; P.A. 80-476, S. 131; P.A. 81-349, S. 2, 5; P.A. 83-62; P.A. 85-523, S. 1, 9; P.A. 87-565, S. 2; P.A. 89-211, S. 45; P.A. 92-233, S. 2; P.A. 93-262, S. 1, 87; June 18 Sp. Sess. P.A. 97-2, S. 103, 165; P.A. 98-232, S. 2; P.A. 99-84, S. 28; June Sp. Sess. P.A. 01-2, S. 6, 69; June Sp. Sess. P.A. 01-9, S. 129, 131; P.A. 07-116, S. 19; P.A. 17-7 S. 3.) History: P.A. 73-34 substituted “spouse” for “husband”, “person” for “woman” and made other changes which had distinguished persons under provisions by sex; P.A. 77-446 imposed deadline for return of inventory, removed provisions which had distinguished between conduct of conservator who is ward's spouse and conduct of other conservator, and added provisions allowing court to require annual accounting and to hold hearing on accounts; P.A. 80-476 divided section into Subsecs., rephrased provisions and substituted “property” for “estate”; P.A. 81-349 added Subsec. (d) requiring the conservator of the estate of any person receiving public or medical assistance to apply any assets exceeding limits set by statute or regulation toward the cost of such person's care; P.A. 83-62 added Subsec. (e) permitting conservator of the estate to pay and distribute gifts of income and principal from estate of ward subject to the approval of the court; P.A. 85-523 amended Subsec. (e) to delete provisions re intent of ward concerning continuation of gifts and added phrase “in the case of ward capable of making an informed decision”; P.A. 87-565 amended Subsec. (a) by changing “return” to “make and file in”, and added provision re appraisal of inventory at fair market value as of date of appointment of conservator and included all property in which ward has interest, including joint bank accounts; P.A. 89-211 clarified reference to the Internal Revenue Code of 1986; Sec. 45-75 transferred to Sec. 45a-655 in 1991; P.A. 92-233 amended Subsec. (d) by adding provisions re limits on amount of income and property applied to support of spouse of ward who is an applicant for or recipient of medical assistance; P.A. 93-262 authorized substitution of commissioner and department of social services for commissioner and department of income maintenance, effective July 1, 1993; June 18 Sp. Sess. P.A. 97-2 amended Subsec. (d) to make technical and conforming changes re references to assistance and Medicaid, effective July 1, 1997; P.A. 98-232 amended Subsec. (e) to provide notice to Commissioner of Social Services, to permit court to authorize conservator to make gifts and other transfers of income from estate of ward to existing or court-approved trust for benefit of individuals, including ward, charities, trusts or other institutions, and to provide criteria for determining whether gift to charity will be permitted and the nature of the trust and continuing jurisdiction of Probate Court; P.A. 99-84 amended Subsec. (a) by deleting “oath” and inserting “penalty of false statement”; June Sp. Sess. P.A. 01-2 amended Subsec. (d) to make technical changes and delete provisions prohibiting application of certain income or property to support of ward's spouse, effective July 1, 2001; June Sp. Sess. P.A. 01-9 revised effective date of June Sp. Sess. P.A. 01-2 but without affecting this section; P.A. 07-116 substituted “conserved person” for “ward”, amended Subsec. (a) to provide that conservator shall use least restrictive means of intervention in exercise of duties and authority, and made technical changes; P.A. 17-7 amended Subsec. (a) by adding provision re conservator to be guided by standards of practice adopted under Sec. 45a-77(h), added Subsec. (f) re Probate Court determination as to whether conservator breached fiduciary duty, and made technical changes in Subsecs. (a), (b) and (e), effective July 1, 2018. Annotations to former section 45-75: When ward is sued, reasonable notice should be given conservator. K. 174. Conservator liable for former contract after termination of office. 2 R. 372. Ward may sue in his own name. 3 D. 475. Rights and duties of conservator cease with ward's death. 1 C. 65. Deed executed by ward with consent of conservator held void. 3 C. 231. Conservator may submit claims of ward to arbitration. 12 C. 382. Cannot agree as to disposition of ward's estate after ward's death. 19 C. 596. Probate Court may settle conservator's account after he has gone out of office. 28 C. 274. May enter dwelling of ward without his consent. 29 C. 569. Cannot sue in his name for money lent by ward. 44 C. 121. Cannot bind ward or his estate by contract. 53 C. 119, but see 127 C. 222. May lease ward's real estate. 55 C. 116; 67 C. 195. Conservator not necessary party to action by ward. 66 C. 444. Powers; investments; damages for improper investments. 67 C. 187. Power of conservator to compromise controversy. 71 C. 590; 85 C. 52. Liability of estate for necessaries furnished ward. 72 C. 167. Ward can still take title to property. 82 C. 151. Power to borrow on credit of estate; liability for misuse of funds. 85 C. 279. Entry by administrator of ward to prosecute action brought by conservator in his own name. 91 C. 681. Conservator not liable for unnecessary wearing apparel furnished without his knowledge or approval to ward's wife. 93 C. 36. Care and management of ward's estate primarily entrusted to Probate Court; conservator in many respects an agent of court. 115 C. 330. Title to federal veterans benefits coming into conservator's possession vests in ward. Id., 331. Conservator has implied power to make contracts so far as they are involved in exercise of powers expressly granted. 127 C. 222. Nothing in section to indicate conservator may bind ward's estate to implied contract without express Probate Court approval. 155 C. 119. Cited. 168 C. 498; 199 C. 524; 202 C. 57; 209 C. 390. Cited. 11 CA 297. Cited. 20 CS 262. Annotations to present section: Court overruled trial court to hold that at time of the creation of trust at issue, Probate Court had authority to authorize establishment of such a trust. 247 C. 686. First use of “notwithstanding” in Subsec. (d) indicates legislature's desire to carve out an exception to the authority under Subsec. (b) of the Probate Court and conservator when a person has sought or is receiving medical assistance, insofar as it limits court's authority to award support to the amount approved by Department of Social Services pursuant to federal law. 328 C. 294. Cited. 42 CA 70. Right of recovery under negligence theory recognized against defendant conservator even where no probate bond obtained, and trial court improperly granted summary judgment; defendant owed plaintiff nursing home duty of care to take steps necessary to secure payment for care of conserved person and harm to plaintiff from defendant's failure to timely submit Medicaid applications was foreseeable. 185 CA 340. Subsec. (a): Complaint of plaintiff, a state licensed nursing home, stated legally sufficient cause of action under Sec. 45a-144 against defendant conservator, and plaintiff had right to bring action on probate bond to recover loss it suffered as a result of defendant's breach of duties under this Subsec. and Sec. 45a-656(a), as conservator of estate and of person, to ensure timely payment for services rendered by plaintiff; Sec. 45a-144(a) provides cause of action for three separate categories of plaintiff, including any person aggrieved “in his own right” and, accordingly, complaint stated legally sufficient cause of action. 257 C. 531. Legislature did not intend to allow a person who has voluntarily sought a conservator to retain joint control over the matters delegated to the conservator's authority. 341 C. 815. Although Subsec. does not expressly provide that a conservator may initiate a declaratory judgment action questioning the validity of a trust created by a voluntarily conserved person and created without the former conservator having obtained Probate Court approval, such power is reasonably implied from Subsec. and from case law. 186 CA 482; judgment affirmed, see 341 C 815.