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The Law

Can Court-Appointed Conservators Be Sued?

Decision protects rights of people with disabilities

Daniel Gross, 85, was suffering from a leg infection when he visited his daughter in Waterbury, Conn., in 2005 and had to be taken to a local emergency room. After Gross spent nine days in the hospital, a hospital social worker asked the Connecticut probate court to appoint a conservator for him.

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The judge agreed, and from there, things spun out of control. Gross was sent to a nursing home and kept there for more than 10 months, unable to freely visit with his family. At one point he was attacked by his roommate, a convicted felon.

"He was treated like an inmate, not a patient," said Carolyn Dee King, Gross' adult daughter. "His fundamental dignity was stripped away at a time when he was perfectly capable of taking care of himself and wanted to do so."

An attorney won his release, but before Gross died in 2007, he sued his lawyer, the conservator and the nursing home. According to legal briefs, his attorney failed to challenge the conservatorship despite Gross' request, and his conservator failed to oversee Gross' financial affairs.

The federal District Court threw out the lawsuit in the spring of 2008, saying that Gross' conservator and his lawyer could not be held liable for their actions because they were appointed by a probate court. The case then went to the 2nd Circuit Court of Appeals, which concluded in October 2009 that the case should be resolved in state court. In April, the Connecticut Supreme Court sided with Gross. The high court did carve out an exception — that immunity could be granted to a conservator if a probate court approves his or her actions. But it also ruled that the conservator can be sued for harm or loss to the person under conservatorship.

"The court's decision protects older people with disabilities who have lost their most fundamental personal rights while under conservatorship," said Stacy Canan, senior attorney for AARP Foundation Litigation, which filed a friend-of-the-court brief in the case. "The ability to sue for wrongdoings greatly improves accountability and protects individuals against abuse and neglect." Sally Zanger, an attorney with Connecticut Legal Rights Project, added: "I hope that lawyers who are appointed to represent people will represent their clients zealously and follow their clients' instructions."

Attorneys for the conservator, the nursing home and the court-appointed lawyer declined to comment.

The case is expected to be referred to the trial court where it began. A jury will then decide whether to hold Gross' court-appointed lawyer, the conservator and the nursing facility liable.

What it means to you: If you or a loved one becomes incapacitated and needs the protection of a conservator or guardian, contact your state or local bar association and learn about the guaranteed rights afforded to people under such protection. Reliable resources include guardianship.org, eldersandcourts.org and americanbar.org/aging.

Emily Sachar is a journalist and author based in Brooklyn, N.Y.

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