Opinion
CV156008077S
04-06-2016
Ethyl Papa v. Robert Hoffman et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
John F. Cronan, Judge.
I.
ROLE OF THE SUPERIOR COURT IN PROBATE APPEALS
" [A]n appeal from a probate order or decree to the Superior Court is not a civil cause of action. It has no more of the ordinary attributes of a civil action than the original proceedings in the court of probate . . . [A]ppeals from probate are not civil actions because it has always been held that the Superior Court, while hearing appeals from probate, sits as a court of probate and not as a constitutional court of general or common-law jurisdiction. It tries the questions presented to it de novo, but in so doing it is . . . exercising a special and limited jurisdiction conferred on it by the statute authorizing appeals from probate." (Internal quotation marks omitted.) In re Probate Appeal of Cadle Co., 152 Conn.App. 427, 439, 100 A.3d 30 (2014). " The Superior Court may not consider or adjudicate issues beyond the scope of those proper for determination by the order or decree attacked . . . Inasmuch as the motion for the appeal is made in the Court of Probate and forms a part of the proceedings in that court, no amendment to it may be made in the Superior Court. The Superior Court, therefore, cannot enlarge the scope of the appeal." (Emphasis in original; internal quotation marks omitted.) Id., 439. Moreover, " [a]n appeal from probate does not vacate the decree appealed from nor does it lift the entire cause from the probate court into the superior court. On the contrary, it leaves the entire matter as it was in the probate court, there to be continued with and completed according to law, presenting in the meanwhile to the superior court for redetermination, after a retrial of the facts, the special and limited issues embraced within the particular decree appealed from." (Emphasis altered; internal quotation marks omitted.) Id., 440.
General Statutes § 45a-186b provides " [t]he Superior Court shall affirm the decision of the Court of Probate unless the Superior Court finds that substantial rights of the person appealing have been prejudiced because the findings, inferences, conclusions or decisions are: (1) In violation of the federal or state constitution or the general statutes, (2) in excess of the statutory authority of the Court of Probate, (3) made on unlawful procedure, (4) affected by other error of law, (5) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record, or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the Superior Court finds such prejudice, the Superior Court shall sustain the appeal and, if appropriate, may render a judgment that modifies the Court of Probate's order, denial or decree or remand the case to the Court of Probate for further proceedings. For the purposes of this section, a remand is a final judgment." In the present case, the appellant, Ethyl Papa, appeals the probate court's decision on the grounds of § § § 45a-186b(1), 45a-186b(2), and 45a-186b(5).
II.
SECTION 45a-186b(1) VIOLATION OF THE FEDERAL OR STATE CONSTITUTION OR THE GENERAL STATUTES
Ethyl appeals on the grounds of § 45a-186b(1), arguing that the Probate Court failed to follow General Statutes § § § 45a-650(f), (g) and (h). Section 45a-650(f) provides in relevant part: " (2) [i]f the court finds by clear and convincing evidence that the respondent is incapable of caring for himself or herself, that the respondent cannot be cared for adequately without the appointment of a conservator and that the appointment of a conservator is the least restrictive means of intervention available to assist the respondent in caring for himself or herself, the court may appoint a conservator of his or her person after considering the factors set forth in subsection (g) of this section. (3) No conservator may be appointed if the respondent's personal needs and property management are being met adequately by an agency or individual appointed pursuant to section."
Section 45a-650(g) provides: " [w]hen determining whether a conservator should be appointed the court shall consider the following factors: (1) The abilities of the respondent; (2) the respondent's capacity to understand and articulate an informed preference regarding the care of his or her person or the management of his or her affairs; (3) any relevant and material information obtained from the respondent; (4) evidence of the respondent's past preferences and life style choices; (5) the respondent's cultural background; (6) the desirability of maintaining continuity in the respondent's life and environment; (7) whether the respondent had previously made adequate alternative arrangements for the care of his or her person or for the management of his or her affairs, including, but not limited to, the execution of a durable power of attorney, springing power of attorney, the appointment of a health care representative or health care agent, the execution of a living will or trust or the execution of any other similar document; (8) any relevant and material evidence from the respondent's family and any other person regarding the respondent's past practices and preferences; and (9) any supportive services, technologies or other means that are available to assist the respondent in meeting his or her needs."
In the present case, Ethyl argues that the Probate Court erred when it did not follow § 45a-650(f) as the appointment of Hoffman as conservator was not the least restrictive means of intervention available to assist Ethyl for caring for herself. The record, however, shows that the Probate Court did consider the least restrictive means of intervention. In its decision the court stated " the existence of the power of attorney granted to the respondent's brother Robert Hoffman dated January 15, 2014 will allow her financial affairs to be managed by him in the least restrictive means." See Probate Court Decision, p. 4, February 12, 2015, Wright, J. The Probate Court also acknowledged that " [a]lthough the power of attorney given to the respondent's brother Robert Hoffman dated January 15, 2014 will allow him to provide for most of her personal needs, it does not empower him to make medical and other health care decisions. Within that same document, however, the respondent names Robert Hoffman to serve as a conservator if one is to be appointed . . . [T]his court finds by clear and convincing evidence that the respondent's medical and health care decisions are not being met by an agency or individual, and the respondent has not appointed a designated health care agent or health care power of attorney. Finally, in making its determination, the court stated " the duties and authorities granted . . . will restrict the decision making authority of the conserved person only to the extent necessary to provide for her medical and health care decisions." (Emphasis added.) See Probate Court Decision, p. 4, February 12, 2015, Wright, J. Therefore, the court finds that the Probate Court did not violate § 45a-650(f) when determining that appointing Hoffman as conservator was the least restrictive means of intervention available to assist Ethyl in caring for herself.
Moreover, Ethyl argues that the court did not consider the factors set forth in § 45a-650(g) as stated in § 45a-650(f). Specifically, Ethyl argues that the Probate Court did not consider the preference of Ethyl in appointing a conservator. The decision of the Probate Court expressly states: " [h]aving considered the factors set forth in § 45a-650(g), this court finds by clear and convincing evidence that the respondent's medical and health care decisions are not being met by an agency or individual . . ." See Probate Court Decision, p. 4, February 12, 2015, Wright, J. The record in the present case also contains extensive evidence regarding Ethyl's mental status and ability to evaluate information or make decisions. The Probate Court heard extensive medical testimony from hospital staff, including the respondent's attending psychiatrist Dr. Genevieve Henry, her social worker Loryn Parker O'Leary, and Dr. Harry Morgan, a private psychiatrist who examined the respondent on September 10, 2014. Although there were some differences in regard to the issues before the court, both psychiatrists agreed that the respondent was incapable of making medical decisions regarding her own health care. Because there is no indication that a health care agent or health care power of attorney was ever executed by the respondent, acceptance of the opinions expressed in the psychiatrists' testimony would require the appointment of a conservator of the person for the limited purpose of making medical decisions on the respondent's behalf." See Probate Court Decision, p. 2, February 12, 2015, Wright, J. Moreover, the Probate Court's lengthy and in-depth memorandum of decision strongly supports the Probate Court's careful determination of the factors enumerated in § 45a-650(g), including Ethyl's preference and ability to articulate an informed preference and her mental capacity to do so. Accordingly, the court finds no merit in Ethyl's claim of error in this regard.
Ethyl's next claim of error is that the Probate Court did not consider all of the factors listed in General Statutes § 45a-650(h) when considering who to appoint as conservator. In relevant part, that statute provides: (h) . . . In considering who to appoint as conservator, the court shall consider (1) the extent to which a proposed conservator has knowledge of the respondent's or conserved person's preferences regarding the care of his or her person or the management of his or her affairs, (2) the ability of the proposed conservator to carry out the duties, responsibilities and powers of a conservator, (3) the cost of the proposed conservatorship to the estate of the respondent or conserved person, (4) the proposed conservator's commitment to promoting the respondent's or conserved person's welfare and independence, and (5) any existing or potential conflicts of interest of the proposed conservator."
In the present case, the petition for appointment of the conservator states that " having considered the factors set forth in § 45a-650(h) were considered concerning the qualifications of the conservator." See Probate Court Decision, ex. B., February 12, 2015, Wright, J. In Falvey v. Zurolo, 130 Conn.App. 243, 255, 22 A.3d 682 (2011), our Appellate Court held that the Probate Court was required to take evidence of the qualifications of a neutral conservator. The court found that a mere recitation in the court's decree that it had considered the factors set forth in § 45a-650(h) was insufficient when the record was devoid of any evidence regarding the person appointed or his qualifications. However, the court did not impose a requirement that the Probate Court make express findings of fact regarding the § 45a-650(h) factors. In contrast to Falvey, the record in the present case contains extensive evidence regarding Hoffman and his suitability to act as the appellant's conservator. That evidence strongly supports the Probate Court's determination that Hoffman would be the best to act as the appellant's conservator because he knows his sister's preferences regarding her care and has the ability to carry out the duties, responsibilities, and powers of a conservator. Therefore, the court finds no merit in the appellant's claim of error in this regard.
III.
SECTION 45a-186b(2) IN EXCESS OF STATUTORY AUTHORITY OF THE COURT OF PROBATE
Ethyl argues that the Probate Court exceeded its statutory authority when the court determined that Ethyl did not have the capacity to revoke a power of attorney and execute a new power of attorney. Ethyl argues that, pursuant to § 45a-650(g), the Probate Court has only the authority to determine the existence of a power of attorney and also whether an attorney in fact is properly managing a proposed conserved person's needs and property management. Thus, she contends, that the Probate Court exceeded it powers when it determined that she lacked capacity when she executed a power of attorney. The Probate Court, however, considered Ethyl's capacity when considering the factors of § 45a-650(g) as discussed in the preceding section. The issue of whether or not Ethyl had the requisite capacity to execute a power of attorney was central to the issue of whether Hoffman should be appointed as conservator. The evidence in the record shows extensive medical testimony was presented to the Probate Court with regard to Ethyl's mental status and capacity to evaluate information or make or communication decisions. This testimony was relevant to the court determining some factors enumerated in § 45a-650(g) such as the abilities of Ethyl and Ethyl's capacity to understand and articulate an informed preference regarding her care or the management of her affairs. Accordingly, the Probate Court did not exceed its statutory powers when it considered the capacity of Ethyl when determining the legal validity of the power of attorney and determining that appointing Hoffman as conservator of the person of Ethyl is the least restrictive means of intervention to assist Ethyl in caring for herself.
IV.
SECTION 45a-186b(5) CLEARLY ERRONEOUS IN VIEW OF RELIABLE PROBATIVE AND SUBSTANTIAL EVIDENCE ON THE WHOLE RECORD
This claim was not briefed by either party and therefore, will not be considered by the court.
CONCLUSION
The court finds that, based on the record, the decision of the Probate Court was based upon competent and compelling evidence that it was in Ethyl's best interest for Hoffman, rather than Randy, to be appointed as conservator of the person of Ethyl. The court further finds that Ethyl has failed to demonstrate that her substantial rights were prejudiced by any findings, conclusions or decisions of the Probate Court. General Statutes § 45a-186b mandates that in the absence of such showing of prejudice, the Superior Court " shall affirm the decision of the Court of Probate." Accordingly, the court affirms the decision of the Probate Court.