Justia.com Opinion Summary: In the involuntary conservatorship action underlying this case, Daniel Gross was placed in the locked ward of Grove Manor Nursing Home. Jonathan Newman was appointed by the probate court to represent Gross in the action, and Kathleen Donovan was appointed as conservator. The superior court granted Gross's petition for writ of habeas corpus, finding that the conservatorship was void ab initio. Gross subsequently brought a complaint in U.S. District Court, asserting state and federal civil rights claims. The court dismissed it as to all defendants, finding, in relevant part, that Donovan, Newman, and Grove Manor were entitled to immunity because they were serving the judicial process. On appeal, the U.S. court of appeals submitted certified questions regarding Connecticut law to the Supreme Court. The Court held (1) absolute quasi-judicial immunity extends to a conservator appointed by the probate court only when the conservator is executing an order of the probate court or the conservator's actions are ratified by the probate court; (2) absolute quasi-judicial immunity does not extend to attorneys appointed to represent respondents in conservatorship proceedings or conservatees; and (3) the function of nursing homes caring for conservatees does not entitle them to quasi-judicial immunity under any circumstances.
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DANIEL GROSS ET AL. v. M. JODI RELL ET AL.
(SC 18548)
Rogers, C. J., and Norcott, Palmer, Zarella, McLachlan, Eveleigh and
Harper, Js.
Argued October 24, 2011—officially released April 3, 2012
Sally R. Zanger, with whom was Thomas Behrendt,
for the appellants (plaintiffs).
Louis B. Blumenfeld, with whom was Lorinda S.
Coon, for the appellee (defendant Jonathan Newman).
Richard A. Roberts, with whom were James P. Sexton, and, on the brief, Nadine M. Pare and James R.
Fiore, for the appellee (defendant Kathleen Donovan).
Jeffrey R. Babbin, for the appellee (defendant Grove
Manor Nursing Home, Inc.).
Daniel J. Klau filed a brief for the Connecticut Probate Assembly as amicus curiae.
Stacy Canan and Daniel S. Blinn filed a brief for
the National Senior Citizens Law Center et al. as
amici curiae.
Stephen Wizner and Amanda Machin, law student
intern, filed a brief for the Jerome N. Frank Legal Services Organization et al. as amici curiae.
James G. Felakos, Jane Monteith Hudson, Terri A.
Mazur, Jeffrey F. Tougas and Christine A. Walsh filed
a brief for the National Disability Rights Network et al.
as amici curiae.
Opinion
ROGERS, C. J. This case comes before us upon our
acceptance of certified questions of law from the United
States Court of Appeals for the Second Circuit pursuant
to General Statutes § 51-199b (d).1 The certified questions are: (1) Under Connecticut law, does absolute
quasi-judicial immunity extend to conservators
appointed by the Connecticut Probate Court?; (2) Under
Connecticut law, does absolute quasi-judicial immunity
extend to attorneys appointed to represent respondents
in conservatorship proceedings or to attorneys
appointed to represent conservatees?; and (3) What is
the role of conservators, court-appointed attorneys for
conservatees, and nursing homes in the Connecticut
probate court system, in light of the six factors for
determining quasi-judicial immunity outlined in Cleavinger v. Saxner, 474 U.S. 193, 201–202, 106 S. Ct. 496,
88 L. Ed. 2d 507 (1985). We conclude that: (1) absolute
quasi-judicial immunity extends to a conservator
appointed by the Probate Court only when the conservator is executing an order of the Probate Court or the
conservator’s actions are ratified by the Probate Court;
(2) absolute quasi-judicial immunity does not extend
to attorneys appointed to represent respondents in conservatorship proceedings or conservatees; and (3) our
analysis of the first and second certified questions is
responsive to the third certified question as it relates
to the roles of conservators and court-appointed attorneys; with respect to nursing homes caring for conservatees, we conclude that their function does not entitle
them to quasi-judicial immunity under any circumstances.
The opinion of the United States Court of Appeals
for the Second Circuit sets forth the following facts
and procedural history. ‘‘In 2005, [the named plaintiff]
Daniel Gross,2 a life-long New York resident, was discharged from a hospital in New York after treatment
for a leg infection. Shortly thereafter, he went to Waterbury . . . where his daughter [the plaintiff] lived, to
convalesce. On August 8, 2005, he was admitted to
Waterbury Hospital because of complications from his
previous treatment. Nine days later, on August 17, 2005,
Barbara F. Limauro, a hospital employee, filed an application for appointment of conservator in Waterbury
Probate Court. The record does not indicate what
prompted Limauro to file this application.
‘‘The pertinent statute requires the [P]robate [C]ourt,
as a threshold matter, to give the respondent seven
days’ notice in any application for an involuntary conservatorship. [General Statutes (Rev. to 2005)] § 45a649 (a).3 In addition, the notice must be served on the
respondent or, if doing so ‘would be detrimental to
the health or welfare of the respondent,’ his attorney.
[General Statutes (Rev. to 2005)] § 45a-649 (a) (1) (A).
The statute makes no provision for giving notice to the
respondent other than by personal service or service
upon his attorney.
‘‘On August 25, 2005, [Probate Court] Judge Thomas
P. Brunnock issued an order of notice of a hearing
to be held on September 1, 2005, in connection with
Limauro’s application. On August 30, 2005, the notice
was served on Limauro. However, as the Connecticut
Superior Court pointed out in the subsequent habeas
proceeding, there was no indication that Gross himself
ever received notice of the September 1 proceeding.
The parties do not dispute that (1) Gross was entitled
to notice of the hearing, (2) he should have been given
at least seven days’ notice, pursuant to [§] 45a-649 (a),
and (3) the order dated August 25, 2005, specified that
Gross should be served by August 24.
‘‘Also on August 25, 2005, Brunnock appointed [Attorney] Jonathan Newman to represent Gross in the involuntary conservatorship action. Newman interviewed
Gross, who told Newman that he opposed the conservatorship. Newman described Gross as alert and intelligent and stated in a report that Gross wanted to live
at home and manage his own affairs. Nevertheless, Newman concluded that he could not ‘find any legal basis
[on] which to object to the appointment of a conservator
of . . . Gross’ person and estate.’ Newman also signed
the form ‘attorney for ward.’ The relevant statute
defines a ‘ward’ as ‘a person for whom involuntary
representation is granted’ pursuant to statute. [General
Statutes (Rev. to 2005)] § 45a-644 (h) . . . . At the time
Newman signed the form, no such representation had
been granted; Gross was not a ‘ward’ but rather a
‘respondent.’ [General Statutes (Rev. to 2005)] § 45a644 (f).
‘‘A Superior Court judge would later say that Newman’s conclusion that there was no legal basis for
objecting to the involuntary conservatorship ‘completely blows my mind,’ that there was ‘[n]o support
for it,’ and that ‘it just defies imagination. . . . This
was counsel for . . . Gross and it is obvious to me that
he grossly under and misrepresented . . . Gross at the
time.’ . . .
‘‘The respondent also has a right to attend any hearing
on the application. [General Statutes (Rev. to 2005)]
§ 45a-649 (b) (2). If he wishes to attend ‘but is unable
to do so because of physical incapacity, the court shall
schedule the hearing . . . at a place which would facilitate attendance . . . but if not practical, then the judge
shall visit the respondent’ before the hearing, if he is
in the state. Id. . . . The next section reiterates that a
judge could ‘hold the hearing on the application at a
place within the state other than its usual courtroom
if it would facilitate attendance by the respondent.’
[General Statutes (Rev. to 2005)] § 45a-650 (c). The parties do not dispute that (1) Judge Brunnock never visited Gross, (2) the hearing was not held at a location
that would facilitate Gross’s attendance, and (3) Gross
was not personally present at the hearing.
‘‘Furthermore, Connecticut law at the time only permitted a conservatorship for those who were residing
or domiciled in Connecticut, [General Statutes (Rev. to
2005)] § 45a-648 (a); Gross was neither a resident nor
a domiciliary. It is undisputed that Newman failed to
bring this jurisdictional defect to the court’s attention.
(As will be explained . . . it was on the basis of this
defect that the Connecticut Superior Court eventually
granted Gross’s petition for a writ of habeas corpus
and held the conservatorship void ab initio.)
‘‘On September 1, 2005, Brunnock appointed Kathleen Donovan as conservator to manage Gross’s person
and estate. Connecticut state law provides that the
[P]robate [C]ourt must require a probate bond [when
it appoints a conservator of the estate] and, ‘if it deems
it necessary for the protection of the respondent, [it
may] require a bond of any conservator [of the person]’
as well. [General Statutes (Rev. to 2005)] § 45a-650 (g).
Donovan never posted a bond.
‘‘A week or two later, Donovan placed Gross in the
‘locked ward’ of [Grove Manor Nursing Home, Inc.
(Grove Manor)]. Gross alleges in his complaint that his
roommate was a confessed robber who threatened and
assaulted him. Gross also claims that Grove Manor,
with the knowledge and consent of Donovan, kept him
in a room with the violent roommate after it learned
of the assault, which was not reported to the police.
‘‘In April of 2006, Gross was on an authorized day
visit to Long Island. While there, he experienced chest
pains and was admitted to a hospital. According to
the complaint, Donovan came to Long Island with an
ambulance and insisted that Gross be returned to Connecticut. When the doctor indicated that this was medically unwise, Donovan nonetheless removed Gross
from the hospital against his wishes and returned him
to the locked ward at Grove Manor.
‘‘Gross alleges in his complaint that there was no
reason to put him in the locked ward. He further alleges
that [Maggie] Ewald, [the former acting long-term care
ombudsman of the Connecticut department of social
services] and Donovan, the conservator, were aware of
these problems but failed to take steps to alleviate them.
The parties do not dispute that Donovan obtained from
Brunnock ex parte orders limiting Gross’s contact with
family and with counsel; Gross claims that there was
no evidence suggesting that such contact was harmful
to him. . . . According to Gross’s complaint, [one
such] order restricted [the plaintiff’s] ability to visit him:
the visits were required to be on-premises, only once
per day, for no longer than one hour. . . . [I]t also
[prohibited] her from bringing ‘any recording devices
(visual and/or audio) into Grove Manor.’ . . .
‘‘On June 9, 2006, Gross filed a petition for a writ of
habeas corpus in Connecticut Superior Court. A hearing
was held on July 12. Brunnock moved to dismiss, making the . . . argument that habeas relief was unnecessary because, if the Probate Court acted without
jurisdiction, the conservatorship was void ab initio and
Gross could leave Grove Manor at any time. The Superior Court granted the writ: ‘[O]ut of an absolute caution
that somebody else may come in and file [an] appearance in this case, I’m going to grant the writ of habeas
corpus . . . . I’m going to find in accordance with the
statute that he has—is and has been, since September
1, been deprived of his liberty. And at the time of his—
of his appointment of the conservator of both his person
and his estate, [the] Probate Court lacked the jurisdiction on the basis that he was not a domiciliary and/or
a resident of the [s]tate of Connecticut. The conservatorship is terminated as a result of the decision on the
habeas corpus and . . . Gross is free to leave here
today.’ The court also halted all pending transactions
involving Gross’s property, saying ‘that nothing [is to]
be done with the sale of [Gross’] house in New York,’
and that ‘any previous orders of the Probate Court with
reference to that real property in New York are also
terminated, so there is nothing in New York.’ The Superior Court said there had been ‘a terrible miscarriage
of justice.’
‘‘Upon returning to New York, Gross found that his
house had been, in his words, ‘ransacked.’ The complaint alleges that a chandelier and some furniture were
missing. Gross lived independently in his home from
the time of his release at least until the time of the
complaint, and apparently until the time of his death
in 2007.
‘‘In 2007, [Gross] brought [a] complaint [in the United
States District Court for the District of Connecticut]
and the District Court dismissed it as to all defendants.4
The District Court found that Brunnock was entitled
to judicial immunity. The court went on to reason that
[Donovan], [Newman], and [Grove Manor] were entitled
to immunity because they were serving the judicial process. However, the District Court reasoned that [Grove
Manor] was not entitled to derivative, quasi-judicial
immunity for discretionary acts that were not performed specifically for the purpose of complying with
a Probate Court order. Thus, [Grove Manor’s] decision
to leave Gross in a room with his roommate for several
days, after his roommate attacked him, was held to be
discretionary and not protected by quasi-judicial immunity. This left statutory and tort claims against [Grove
Manor]. The District Court dismissed the statutory
claims on the basis of waiver, leaving only the tort
claims, which consisted of claims for intentional and
negligent infliction of emotional distress.
‘‘The District Court also dismissed all claims against
[M. Jodi Rell, then governor of the state of Connecticut]
and most claims against [Ewald], essentially on failure
to prosecute or waiver grounds. However, it initially
let stand the claims against [Ewald] for failure to investigate complaints about Gross’s detention in [Grove
Manor]. Thus, there were two sets of claims remaining:
intentional and negligent infliction of emotional distress
against [Grove Manor] regarding the violent roommate
and intentional infliction of emotional distress against
[Ewald] for failure to investigate.
‘‘Then, at the end of a telephone conference about
discovery and the course of the lawsuit, the District
Court announced that it did not think those remaining
claims would exceed $75,000 and said it would dismiss
the case. Counsel did not object to this dismissal, and
those claims were dismissed without prejudice. Once
these were dismissed, there were no remaining claims.
Gross’s timely appeal followed.’’ (Emphasis in original.)
Gross v. Rell, 585 F.3d 72, 75–79 (2d Cir. 2009).
On appeal, the United States Court of Appeals for
the Second Circuit concluded that, with respect to the
state law claims against Donovan and Newman,
because the question of whether they were entitled to
quasi-judicial immunity must be decided on the basis
of state law; id., 80; and ‘‘because there is no controlling
appellate decision, constitutional provision, or statute
in Connecticut that explains whether conservators and
court-appointed attorneys for conservatees enjoy quasijudicial immunity’’; id., 96; the Court of Appeals would
submit the first two questions regarding the quasi-judicial immunity of conservators and attorneys for respondents and conservatees under state law to this court
for certification pursuant to § 51-199b (d). Id. With
respect to the federal civil rights claims against Donovan, Newman and Grove Manor, the Court of Appeals
concluded that, although the issue of quasi-judicial
immunity from the claims was a question of federal law;
id., 80; because the resolution of the question implicated
unsettled questions of state law regarding the roles of
court-appointed conservators, court-appointed attorneys and nursing homes under our statutory scheme
governing conservatorship, it would submit a third certified question on that issue to this court.5 Id., 96. This
court granted certification on all three questions, as
previously set forth.6
I
With this background in mind, we address the first
certified question: Under Connecticut law, does absolute quasi-judicial immunity extend to conservators
appointed by the Connecticut Probate Court? The plaintiff contends that conservators are not entitled to quasijudicial immunity under any circumstances. Donovan
contends that: (1) conservators are generally entitled
to quasi-judicial immunity from claims against conservatees; or (2) if conservators are not generally entitled
to quasi-judicial immunity, they are entitled to immunity
when their conduct is authorized or approved by the
Probate Court. We agree with Donovan’s second claim.
Because any immunity accorded to conservators
appointed pursuant to § 45a-650 would be derived from
judicial immunity, ‘‘we first examine the policy reasons
underlying judicial immunity. It is well established that
a judge may not be civilly sued for judicial acts he
undertakes in his capacity as a judge. . . . This role
of judicial immunity serves to promote principled and
fearless decision-making by removing a judge’s fear that
unsatisfied litigants may hound him with litigation
charging malice or corruption . . . . Although we have
extended judicial immunity to protect other officers in
addition to judges, that extension generally has been
very limited. This fact reflects an [awareness] of the
salutary effects that the threat of liability can have . . .
as well as the undeniable tension between official
immunities and the ideal of the rule of law . . . . The
protection extends only to those who are intimately
involved in the judicial process, including judges, prosecutors and judges’ law clerks. Absolute judicial immunity, however, does not extend to every officer of the
judicial system. . . . Furthermore, even judges are not
entitled to immunity for their administrative actions,
but only for their judicial actions. . . .
‘‘We repeatedly have recognized that [a]bsolute
immunity . . . is strong medicine . . . . Therefore,
not every category of persons protected by immunity
[is] entitled to absolute immunity. In fact, just the opposite presumption prevails—categories of persons protected by immunity are entitled only to the scope of
immunity that is necessary to protect those persons in
the performance of their duties. [T]he presumption is
that qualified rather than absolute immunity is sufficient
to protect government officials in the exercise of their
duties. . . . In limited circumstances, however, courts
have extended absolute judicial immunity to officials
insofar as they perform actions that are integral to the
judicial process. . . . For example, because prosecutors are such an integral part of the judicial system
. . . this court has repeatedly recognized that they are
entitled to absolute immunity for their conduct as participants in the judicial proceeding. . . . By contrast,
we declined to extend immunity to public defenders,
reasoning that, unlike a prosecutor, who is a representative of the state, and has a duty to see that impartial
justice is done to the accused as well as to the state,
a public defender’s role is that of an adversary and his
function does not differ from that of a privately retained
attorney. . . . In legislatively overruling [this determination], the legislature granted public defenders only
qualified immunity, impliedly deeming that level of protection to be sufficient to protect them in the exercise
of their duties.’’7 (Citations omitted; internal quotation
marks omitted.) Carrubba v. Moskowitz, 274 Conn. 533,
539–42, 877 A.2d 773 (2005).
‘‘Although the presumption is that qualified immunity
is sufficient to protect most government officials in
the justified performance of their duties, courts have
extended absolute immunity to a variety of judicial and
quasi-judicial officers. See, e.g., Babcock v. Tyler, 884
F.2d 497 (9th Cir. 1989) (court-appointed social
worker), cert. denied, 493 U.S. 1072, 110 S. Ct. 1118,
107 L. Ed. 2d 1025 (1990) [overruled in part by Miller
v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (social
workers are entitled to quasi-judicial immunity from
suit only for certain activities)]; Moses v. Parwatikar,
813 F.2d 891 (8th Cir.) (court-appointed psychologist),
cert. denied, 484 U.S. 832, 108 S. Ct. 108, 98 L. Ed. 2d
67 (1987); Demoran v. Witt, 781 F.2d 155 (9th Cir. 1986)
(probation officer); Boullion v. McClanahan, 639 F.2d
213 (5th Cir. 1981) (bankruptcy trustee); T & W Investment Co. v. Kurtz, 588 F.2d 801 (10th Cir. 1978) (courtappointed receiver); Burkes v. Callion, 433 F.2d 318 (9th
Cir. 1970) (court-appointed medical examiner), cert.
denied, 403 U.S. 908, 91 S. Ct. 2217, 29 L. Ed. 2d 685
(1971). The determining factor in all these decisions is
whether the official was performing a function that was
integral to the judicial process.
‘‘In considering whether [persons] . . . should be
accorded absolute judicial immunity, the United States
Supreme Court has applied a three factor test, which
we now adopt . . . under our state common law. In
its immunity analysis, the court has inquired: [1]
whether the official in question perform[s] functions
sufficiently comparable to those of officials who have
traditionally been afforded absolute immunity at common law . . . [2] whether the likelihood of harassment
or intimidation by personal liability [is] sufficiently
great to interfere with the official’s performance of his
or her duties . . . [and 3] whether procedural safeguards [exist] in the system that would adequately protect against [improper] conduct by the official. C.
English, ‘Mediator Immunity: Stretching the Doctrine
of Absolute Quasi-judicial Immunity: Wagshal v. Foster,’
63 Geo. Wash. L. Rev. 759, 766 (1995), citing to Butz v.
Economou, 438 U.S. 478, 513–17, 98 S. Ct. 2894, 57 L.
Ed. 2d 895 (1978).’’ (Internal quotation marks omitted.)
Carrubba v. Moskowitz, supra, 274 Conn. 542–43.
Similarly, the United States Supreme Court stated in
Cleavinger v. Saxner, supra, 474 U.S. 201–202, that, ‘‘in
general our cases have followed a functional approach
to immunity law. . . . [O]ur cases clearly indicate that
immunity analysis rests on functional categories, not
on the status of the defendant. . . . Absolute immunity
flows not from rank or title or location within the [g]overnment . . . but from the nature of the responsibilities of the individual official. And in Butz the [c]ourt
mentioned the following factors, among others, as characteristic of the judicial process and to be considered
in determining absolute as contrasted with qualified
immunity: (a) the need to assure that the individual can
perform his functions without harassment or intimidation; (b) the presence of safeguards that reduce the need
for private damages actions as a means of controlling
unconstitutional conduct; (c) insulation from political
influence; (d) the importance of precedent; (e) the
adversary nature of the process; and (f) the correctability of error on appeal.’’ (Citations omitted; internal quotation marks omitted.)
Thus, to determine whether court-appointed conservators are entitled to absolute quasi-judicial immunity,
we must initially determine whether they perform
‘‘functions sufficiently comparable to those of officials
who have traditionally been afforded absolute immunity
at common law . . . .’’8 (Internal quotation marks omitted.) Carrubba v. Moskowitz, supra, 274 Conn. 542. The
primary duties of court-appointed conservators at the
time of the underlying events in the present case are
set forth in General Statutes (Rev. to 2005) §§ 45a-6559
and 45a-656.10 In general terms, a conservator of the
estate is required to manage the conservatee’s estate
for the benefit of the conservatee; General Statutes
(Rev. to 2005) § 45a-655 (a); and a conservator of the
person is required to provide for the care, comfort and
maintenance of the conservatee. General Statutes (Rev.
to 2005) § 45a-656 (a).
We have repeatedly recognized, however, that when
the Probate Court has expressly authorized or approved
specific conduct by the conservator, the conservator is
not acting on behalf of the conservatee, but as an agent
of the Probate Court. See Elmendorf v. Poprocki, 155
Conn. 115, 120, 230 A.2d 1 (1967) (‘‘the conservatrix is
an agent of the Probate Court and not of the ward’’);
id., 118 (The Probate Court ‘‘is primarily entrusted with
the care and management of the ward’s estate, and, in
many respects, the conservator is but the agent of the
court. . . . A conservator has only such powers as are
expressly or impliedly given to him by statute. . . . In
exercising those powers, he is under the supervision
and control of the Probate Court.’’ [Citations omitted.]);
id. (‘‘authorization or approval by the Probate Court
. . . is essential, and without it the ward’s estate is not
liable’’); Johnson’s Appeal from Probate, 71 Conn. 590,
598, 42 A. 662 (1899) (‘‘under our law the custody of
the ward . . . is primarily intrusted to the Court of
Probate, and the conservator is, in many respects, but
the arm or agent of the court in the performance of the
trust and duty imposed upon it’’); Johnson’s Appeal
from Probate, supra, 598 (if conservator ‘‘exercises his
statutory power . . . he does this subject to [the Probate Court’s] power to approve or disapprove of his
action’’).11 Accordingly, when the conservator has
obtained the authorization or approval of the Probate
Court for his or her actions on behalf of the conservatee’s estate, the conservator cannot be held personally
liable. See Zanoni v. Hudon, 48 Conn. App. 32, 37–38,
708 A.2d 222 (when Probate Court has approved conservator’s action, conservator is agent for Probate Court
and ‘‘[a]n authorized agent for a disclosed principal, in
the absence of circumstances showing that personal
responsibility was incurred, is not personally liable to
the other contracting party’’ [internal quotation marks
omitted]), cert. denied, 244 Conn. 928, 711 A.2d 730
(1998); see also General Statutes § 45a-202.12
Although Zanoni was based purely on principles of
agency, we conclude that principles of quasi-judicial
immunity require the same result. Because conservators are acting as the agents of the Probate Court when
their acts are authorized or approved, their function is
not merely ‘‘comparable to those of officials who have
traditionally been afforded absolute immunity at common law’’; (emphasis added; internal quotation marks
omitted) Carrubba v. Moskowitz, supra, 274 Conn. 542;
rather, they function as the Probate Court. Accordingly,
imposing liability on a conservator for acts authorized
or approved by the Probate Court would chill that
court’s ability to make and carry out fearless and principled decisions regarding the conservatee’s care and the
management of his or her estate.13 See id.; cf. Kermit
Construction Corp. v. Banco Credito y Ahorro Ponceno,
547 F.2d 1, 3 (1st Cir. 1976) (‘‘At the least, a receiver
who faithfully and carefully carries out the orders of
his appointing judge must share the judge’s absolute
immunity. To deny him this immunity would seriously
encroach on the judicial immunity already recognized
by the Supreme Court. . . . It would make the receiver
a lightning rod for harassing litigation aimed at judicial
orders. In addition to the unfairness of sparing the judge
who gives an order while punishing the receiver who
obeys it, a fear of bringing down litigation on the
receiver might color a court’s judgment in some cases;
and if the court ignores the danger of harassing suits,
tensions between receiver and judge seem inevitable.’’
[Citation omitted.]). Quasi-judicial immunity for acts by
a conservator that are authorized or approved by the
Probate Court is also appropriate because ‘‘[a]ny person
aggrieved by any order, denial or decree of a court of
probate in any matter . . . may appeal therefrom to
the Superior Court . . . .’’ General Statutes (Rev. to
2005) § 45a-186 (a); see Butz v. Economou, supra, 438
U.S. 512 (judicial immunity is appropriate when official’s decision can be corrected on appeal). Accordingly, we conclude that conservators are entitled to
quasi-judicial immunity from liability for acts that are
authorized or approved by the Probate Court. See Collins v. West Hartford Police Dept., 380 F. Sup. 2d 83,
91 (D. Conn. 2005) (conservator is entitled to quasijudicial immunity for ‘‘actions as an agent of the Probate
Court, taken under the orders or direction of [that
court]’’).
When the conservator’s acts are not authorized or
approved by the Probate Court, however, we see no
reason to depart from the common-law rule that the
conservator of the estate is not acting as the agent of
that court, but as the fiduciary of the conservatee, and,
as such, may be held personally liable. Elmendorf v.
Poprocki, supra, 155 Conn. 120 (conservator is personally liable for services provided to conservatee until
they are approved by Probate Court); Zanoni v. Hudon,
supra, 48 Conn. App. 37 (‘‘[a] conservator is a fiduciary
and acts at his peril and on his own responsibility unless
and until his actions in the management of the ward’s
estate are approved by the Probate Court’’ [internal
quotation marks omitted]); see also Murphy v. Wakelee,
247 Conn. 396, 398–99, 721 A.2d 1181 (1998) (plaintiff
had burden of proving that conservator’s negligence
had injured conservatee’s estate). Indeed, we have held
that, even if expenditures on behalf of the estate are
proper and necessary, liability for them ‘‘rest[s] on [the
conservator] . . . until they [are] subsequently
approved by the Probate Court’’; Elmendorf v.
Poprocki, supra, 120; although the conservator may be
entitled to reimbursement for proper expenditures from
the estate after they are approved. Id. Because holding
conservators of the estate personally liable under these
circumstances does not undermine the independence
and integrity of the Probate Court’s decisions regarding
the conservatee, and because fiduciaries generally may
be held liable for their conduct, we conclude that conservators are not entitled to judicial immunity when
their acts on behalf of the conservatee are not authorized or approved by the Probate Court.14
The District Court in the present case concluded that
Zanoni applies only to conservators of the estate, not
to conservators of the person, because, pursuant to
General Statutes § 45a-164, ‘‘the Probate Court must
approve the sale of the ward’s real property’’ and
‘‘[c]ompleting such a transaction without the Probate
Court’s approval would clearly be ultra vires and is
patently distinguishable from the allegations against
Donovan.’’ King v. Rell, United States District Court,
Docket No. 3:06-cv-1703(VLB) (D. Conn. March 24,
2008); see also General Statutes § 45a-177 (conservator
of estate must submit periodic accounts of trust to
Probate Court). In contrast, conservators of the person
have the statutory authority to take steps to care for
the conservatee without the authorization or approval
of the Probate Court; see General Statutes (Rev. to
2005) § 45a-656; although the conservator must report
at least annually to the Probate Court regarding the
conservatee’s condition. See General Statutes (Rev. to
2005) § 45a-656 (a) (6). Thus, the District Court appears
to have concluded that a conservator can be held personally liable for his or her conduct on behalf of the
conservatee only when the conservator fails to obtain
from the Probate Court an approval that is statutorily
required.15 We see no reason, however, why the holding
of Zanoni, that a conservator is acting as the agent for
the Probate Court only when it obtains court authorization or approval for his or her action, should not apply to
all actions taken by a conservator on the conservatee’s
behalf, regardless of whether approval by the Probate
Court is statutorily required. Accordingly, we can perceive no reason why conservators of the person should
not be liable for actions taken without the authorization
or approval of the Probate Court.
Our conclusion that both conservators of the estate
and of the person may be held personally liable for
actions that are not authorized or approved by the Probate Court is bolstered by General Statutes (Rev. to
2005) § 45a-650 (g), which provides: ‘‘If the court
appoints a conservator of the estate of the respondent,
it shall require a probate bond. The court may, if it
deems it necessary for the protection of the respondent,
require a bond of any conservator of the person
appointed under this section.’’ See also General Statutes
§ 45a-152 (governing procedure for bringing action
against conservator). There would be little point to
requiring a probate bond or providing procedures for
bringing an action against conservators if they were
entitled to absolute quasi-judicial immunity for all of
their conduct on behalf of conservatees. Thus, § 45a650 (g) evinces a legislative policy that conservators
should not be entitled to quasi-judicial immunity when
they are not acting as agents for the Probate Court.
To the extent that Donovan argues that conservators
are entitled to quasi-judicial immunity even when their
acts were not authorized or approved by the Probate
Court, because there are ample statutory safeguards to
ensure proper behavior by the conservator, we disagree.
In support of this argument, Donovan relies on Carrubba v. Moskowitz, supra, 274 Conn. 543 (quasi-judicial
immunity may be appropriate when ‘‘procedural safeguards [exist] in the system that would adequately protect against [improper] conduct by the official’’ [internal
quotation marks omitted]), and Murphy v. Wakelee,
supra, 247 Conn. 406 (because conservator’s duties and
conduct are prescribed by statute and carried out under
supervision of Probate Court ‘‘there is less reason for
concern’’ about improper conduct than for fiduciaries
generally). In Murphy, however, we merely noted that
a fiduciary generally need not prove fair dealing by clear
and convincing evidence in the absence of a threshold
showing of ‘‘suspicious circumstances’’; (internal quotation marks omitted) id., 405–406; and there was even
less reason to impose such a burden on conservators.
Id., 406. We did not suggest that conservators should
always be immune from suit because of the statutory
safeguards. We further note that, although there are
statutory safeguards in place, many of the safeguards
enumerated by the court in Butz v. Economou, supra,
438 U.S. 512, such as the official’s insulation from outside influence, an adversarial decision-making process
and the correctability of improper decisions through
an appeal process do not apply when the conservator’s
acts are not authorized or approved by the Probate
Court. Finally, we find it significant that the statutory
safeguards governing conservators of the person were
not adequate in the present case to prevent what the
trial court in the habeas proceeding characterized as
‘‘ ‘a terrible miscarriage of justice,’ ’’ even though many
of the conservator’s acts were authorized by the Probate Court.
Donovan also argues that conservators are entitled
to quasi-judicial immunity for their discretionary acts
because they serve a similar function to guardians ad
litem, who are entitled to ‘‘absolute immunity for their
actions that are integral to the judicial process.’’ Carrubba v. Moskowitz, supra, 274 Conn. 547. The role of
a guardian ad litem for children in the inherently hostile
setting of a marital dissolution proceeding, which was
the setting in Carrubba, is distinguishable, however,
from the role of a court-appointed conservator. It is all
but inevitable that, in a dissolution proceeding, at least
one of the parties will be disgruntled by the guardian
ad litem’s conduct toward the children and his or her
recommendations concerning their best interests.
Accordingly, without immunity, the guardians would
‘‘act like litigation lightning rods.’’ (Internal quotation
marks omitted.) Id., 547–48. In contrast, it is not all
but inevitable that conservators will act as ‘‘litigation
lightning rods’’ for third party claims because there is
no such inherent conflict between the conservatee’s
interests and the interests of others. Moreover, there
is no inherent conflict between the conservatee and
the conservator. Although an involuntary conservatee
might be hostile toward the Probate Court, it does not
necessarily follow that he or she would be hostile
toward the court-appointed conservator, who could
well be a family member or friend.16 See General Statutes (Rev. to 2005) § 45a-650 (e) (‘‘[t]he respondent may
. . . nominate a conservator who shall be appointed
unless the court finds the appointment of the nominee
is not in the best interests of the respondent’’). Accordingly, we reject this claim.
II
We next address the second certified question: Under
Connecticut law, does absolute quasi-judicial immunity
extend to attorneys appointed to represent respondents
in conservatorship proceedings or to attorneys
appointed to represent conservatees? The plaintiff contends that, because the primary function of attorneys
appointed pursuant to § 45a-649 (b)17 is to advocate for
their clients’ expressed wishes and not to determine
their best interests, they are not acting in a judicial
capacity and are not entitled to quasi-judicial immunity.
Newman contends that, to the contrary, attorneys for
respondents and conservators are entitled to quasi-judi-
cial immunity because their primary function is to assist
the Probate Court to ascertain and to serve the best
interests of their clients. We agree with the plaintiff.
Again, this question turns on whether such attorneys
perform ‘‘functions sufficiently comparable to those of
officials who have traditionally been afforded absolute
immunity at common law . . . .’’ (Internal quotation
marks omitted.) Carrubba v. Moskowitz, supra, 274
Conn. 542. At the time of the underlying events in the
present case, rule 1.14 of the Rules of Professional
Conduct (2005) governed the duties of attorneys to
clients with impaired capacity. That rule provides that
‘‘[w]hen a client’s ability to make adequately considered
decisions in connection with the representation is
impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as
reasonably possible, maintain a normal client-lawyer
relationship with the client.’’ Rules of Professional Conduct (2005) 1.14 (a). In a normal client-lawyer relationship, ‘‘a lawyer [must] zealously [assert] the client’s
position under the rules of the adversary system.’’ Rules
of Professional Conduct (2005), preamble. In addition,
‘‘[t]he normal client-lawyer relationship is based on the
assumption that the client [with impaired capacity],
when properly advised and assisted, is capable of making decisions about important matters.’’ Rules of Professional Conduct (2005) 1.14, commentary; see also In re
M.R., 135 N.J. 155, 176, 638 A.2d 1274 (1994) (under
Rules of Professional Conduct, ‘‘[t]he attorney’s role is
not to determine whether the client is competent to
make a decision, but to advocate the decision that the
client makes’’); P. Tremblay, ‘‘On Persuasion and Paternalism: Lawyer Decisionmaking and the Questionably
Competent Client,’’ 1987 Utah L. Rev. 515, 548–49 (1987)
(‘‘Even though this choice [between advocating for the
client’s wishes and protecting the client’s best interests]
may be difficult to make personally, its resolution
among courts and writers has been rather uniform. Most
favor advocacy. The most significant reason is the belief
that a lawyer using a more selective approach usurps
the function of the judge or jury by deciding her client’s
fate.’’); Office of the Probate Court Administrator, ‘‘Performance Standards Governing Representation of Clients in Conservatorship Proceedings,’’ (1998) p. 1 (‘‘The
attorney is to represent the client zealously within the
bounds of the law. . . . The attorney must advocate
the client’s wishes at all hearings even if the attorney
personally disagrees with those wishes.’’).
Under rule 1.14 (b), ‘‘[a] lawyer may seek the appointment of a guardian or take other protective action with
respect to a client,’’ but ‘‘only when the lawyer reasonably believes that the client cannot adequately act in the
client’s own interest.’’ Rules of Professional Conduct
(2005) 1.14 (b); see also Office of the Probate Court
Administrator, supra, p. 2 (attorney should seek
appointment of guardian for impaired client ‘‘[only] in
extraordinary situations . . . because the effect will
be that no one in the courtroom will be expressing
the respondent’s strongly held view’’). ‘‘Ordinarily, if a
client is opposed to the [conservatorship] application,
the attorney must be also.’’ Office of the Probate Court
Administrator, supra, p. 2; see also In re J.C.T., 176
P.3d 726, 735 (Colo. 2007) (American Bar Association
has taken position that ‘‘a lawyer . . . should not . . .
seek to have himself appointed guardian except in the
most exigent of circumstances’’ [internal quotation
marks omitted]); P. Tremblay, supra, 1987 Utah L. Rev.
552 (‘‘[T]he [legal] profession seeks to adhere to the
underlying ideology of informed consent while permitting exceptions to that doctrine. This is especially true
in commitment-type cases that stress the client’s right
to decide.’’); V. Gottlich, ‘‘The Role of the Attorney for
the Defendant in Adult Guardianship Cases: An Advocate’s Perspective,’’ 7 Md. J. Contemp. Legal Issues 191,
201–202 (1996) (under rule 1.14, ‘‘even if an attorney
thinks the guardianship would be in the client’s best
interest, the attorney whose client opposes guardianship is obligated . . . to defend against the guardianship petition’’).
We recognize that the commentary to rule 1.14 of the
Rules of Professional Conduct (2005) provides: ‘‘If the
person has no guardian or legal representative, the lawyer often must act as de facto guardian.’’ This commentary has been criticized, however, on the ground that,
‘‘[t]o the extent it permits ad hoc decisionmaking by
the lawyer without either consent or court approval, the
[r]ule reincorporates the tension [between the ethical
requirement that a lawyer must obtain the client’s
informed consent for any decision and the reality that
an incapacitated client may not be able to grant consent]
that has received so much attention in the medical field,
but it offers no meaningful assistance regarding how
to resolve the tension in practice. In a technical but
perhaps significant way, it also violates the law by
authorizing action in the absence of direct or proxy
consent.’’ P. Tremblay, supra, 1987 Utah L. Rev. 546. In
addition, the commentary is problematic because ‘‘[t]he
[common-law] presumption of competence . . . can
easily be construed to mean that all persons are legally
competent to make decisions until the presumption has
been overcome in a judicial proceeding. . . . Any third
party usurpation of authority without judicial approval
or prior consent violates this principle.’’ (Citations omitted.) Id., 546 n.130. In light of these concerns, it is
reasonable to conclude that, like the commentary recognizing that an attorney may be required to seek the
appointment of a guardian, the commentary recognizing
that an attorney may have to act as the client’s de facto
guardian applies only in exceptional cases where it
is inescapably clear that the client is unable to make
reasonable and informed decisions and immediate
action is required to protect an important interest of
the client. See In re J.C.T., supra, 176 P.3d 735 (although
commentary to rule 1.14 stated in 2005 that ‘‘the lawyer
must often act as de facto guardian,’’ American Bar
Association has taken position that ‘‘a lawyer . . .
should not act as . . . guardian except in the most
exigent of circumstances, that is, where immediate and
irreparable harm will result from the slightest delay’’
[internal quotation marks omitted]).18
On the basis of the foregoing, we conclude that, with
respect to attorneys for respondents in conservatorship
proceedings, the primary function of such attorneys
under rule 1.14 of the Rules of Professional Conduct is
to advocate for the client’s express wishes. Although
an attorney might be required in an exceptional case
to act as the client’s de facto guardian, that is not the
attorney’s primary role.
With respect to attorneys for conservatees, ‘‘[i]f a
legal representative has already been appointed for the
client, the lawyer should ordinarily look to the representative for decisions on behalf of the client.’’ Rules of
Professional Conduct (2005) 1.14, commentary. Thus,
if a conservatee has expressed a preference for a course
of action, the conservator has determined that the conservatee’s expressed preference is unreasonable, and
the attorney agrees with that determination, the attorney should be guided by the conservator’s decisions
and is not required to advocate for the expressed wishes
of the conservatee regarding matters within the conservator’s authority. If the attorney believes that the conservatee’s expressed wishes are not unreasonable,
however, the attorney may advocate for those wishes
and is not bound by the conservator’s decision. Rules
of Professional Conduct (2005) 1.14, commentary
(‘‘[e]ven if the person does have a legal representative,
the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication’’); Schult v. Schult, 241 Conn.
767, 783, 699 A.2d 134 (1997) (‘‘[T]he rules . . . recognize that there will be situations in which the positions
of the child’s attorney and the guardian may differ. . . .
Although we agree that ordinarily the attorney should
look to the guardian, we do not agree that the rules
require such action in every case.’’ [Citation omitted;
emphasis in original.]). In addition, if an attorney knows
that the conservator is acting adversely to the client’s
interest, the attorney may have an obligation to rectify
the misconduct. See Rules of Professional Conduct
(2005) 1.14, commentary.19
We conclude, therefore, that attorneys for conservatees ordinarily are required to act on the basis of the
conservator’s decisions. If the conservator’s decision is
contrary to the conservatee’s express wishes, however,
and the attorney believes that the conservatee’s
expressed wishes are not unreasonable, the attorney
may advocate for them.
Thus, as a general rule, attorneys for respondents and
attorneys for conservatees are not ethically permitted,
much less required, to make decisions on the basis of
their personal judgment regarding a respondent’s or
a conservatee’s best interests, although they may be
required to do so in an exceptional case. These ethical
principles clearly would apply to an attorney personally
retained by a respondent or conservatee to represent
him or her in conservatorship proceedings at his or her
own expense; see General Statutes (Rev. to 2005) § 45a649 (b) (2) (‘‘the respondent has a right to be present
at the hearing and has a right to be represented by an
attorney at his or her own expense’’); and nothing in
the language of § 45a-649 (b) suggests that an attorney
appointed by the Probate Court pursuant to the statute
would have a different role. Accordingly, we conclude
that the primary purpose of the statutory provision of
§ 45a-649 requiring the Probate Court to appoint an
attorney if the respondent is unable to obtain one is
to ensure that respondents and conservatees are fully
informed of the nature of the proceedings and that their
articulated preferences are zealously advocated by a
trained attorney both during the proceedings and during
the conservatorship. The purpose is not to authorize
the Probate Court to obtain the assistance of an attorney
in ascertaining the respondent’s or conservatee’s best
interests. Because the function of such court-appointed
attorneys generally does not differ from that of privately
retained attorneys in other contexts, this consideration
weighs heavily against extending quasi-judicial immunity to them. See Carrubba v. Moskowitz, supra, 274
Conn. 541 (because function of public defender does
not differ from privately retained attorney, public
defender is not entitled to quasi-judicial immunity).
Moreover, in part I of this opinion we concluded that
conservators are not entitled to quasi-judicial immunity
when their acts are not authorized or approved by the
Probate Court because: (1) they are not acting as agents
of the Probate Court, but as fiduciaries, which generally
are not entitled to quasi-judicial immunity; (2) their role
is distinguishable from the role of guardians ad litem
in marital dissolution proceedings because it is less
likely that they will be litigation lightning rods; and (3)
safeguards such as insulation from outside influence,
an adversarial decision-making process and the correctability of improper decisions through an appeal are
lacking. Similarly, attorneys for respondents and conservatees act as their fiduciaries; see Matza v. Matza,
226 Conn. 166, 178–79, 627 A.2d 414 (1993); attorneys
for respondents and conservatees are no more likely
to act as litigation lightning rods than other privately
retained attorneys in contested adversarial proceedings
involving conflicting rights and interests; and the decisions of such attorneys lack the procedural safeguards
of judicial decision-making.20 Accordingly, we conclude
that a court-appointed attorney for a respondent in a
conservatorship proceeding or a conservatee is not entitled to quasi-judicial immunity from claims arising from
his or her representation.21
Newman argues that this conclusion is inconsistent
with this court’s conclusion in Carrubba v. Moskowitz,
supra, 274 Conn. 547–48, that attorneys appointed to
represent minors in dissolution proceedings pursuant to
General Statutes § 46b-54 are entitled to quasi-judicial
immunity. We disagree. In Carrubba, we acknowledged
‘‘the dual responsibilities of the court-appointed attorney for a minor child both to safeguard the child’s best
interests and to act as an advocate for the child’’; id.,
539; but concluded that, ‘‘[b]ecause . . . [§ 46b-54] provides that the appointment is for the purpose of promoting the best interests of the child, the representation
of the child must always be guided by that overarching
goal, despite the dual role required of the attorney for
the minor child. Thus, the appointed attorney’s duty to
secure the best interests of the child dictates that she
must be more objective than a privately retained attorney. Furthermore, because the overall goal of serving
the best interests of the child always guides the representation of the child, the dual obligations imposed on
the attorney for a minor child, namely, to assist the
court in serving the best interests of the child and to
function as the child’s advocate, are not easily disentangled. In other words, the duty to secure the best interests of the child does not cease to guide the actions
of the attorney for the minor child, even while she is
functioning as an advocate.’’ Id., 544–45. Because the
primary role of the attorney in this context is to ‘‘assist
the court in determining and serving the best interests
of the child’’; id., 546; the attorney is entitled to quasijudicial immunity. Id.
Unlike children, however, who are not presumed to
be competent,22 impaired adults are presumed to be
competent under rule 1.14 until incompetence is established. See Rules of Professional Conduct (2005) 1.14,
commentary (‘‘[t]he normal client-lawyer relationship
is based on the assumption that the [impaired] client,
when properly advised and assisted, is capable of making decisions about important matters’’).23 Indeed, even
after an adult client’s inability to care for himself or his
affairs is established, the attorney can make decisions
on the basis of the client’s reasonable and informed
decisions. Id. (‘‘[e]ven if the person does have a legal
representative, the lawyer should as far as possible
accord the represented person the status of client’’).
The different presumptions that apply to children
and adults with impaired capacity are reflected by the
relevant statutes. Section 46b-54 expressly provides
that the trial court may appoint an attorney for the child
if doing so is in the child’s best interests. In addition,
children do not have a right under § 46b-54 to representation in dissolution proceedings; rather, attorneys
appointed pursuant to § 46b-54 serve at the discretion
of the trial court. General Statutes § 46b-54 (a) (‘‘[t]he
court may appoint counsel for any minor child or children’’ [emphasis added]); Carrubba v. Moskowitz,
supra, 274 Conn. 544 (attorney appointed under § 46b54 serves at discretion of court). This supports a conclusion that the controlling factor in deciding whether to
appoint an attorney pursuant to § 46b-54 is the court’s
need for objective assistance in determining the children’s best interests, not the children’s interest in having an independent advocate. In contrast, § 45a-649 (b)
does not refer to the best interests of the respondent
or conservatee, and an attorney appointed pursuant to
the statute does not serve at the discretion of the Probate Court. Rather, respondents in conservatorship proceedings have the right to be represented by an
attorney, which supports the conclusion that the purpose of appointing an attorney is to provide the client
with an independent, zealous advocate, rather than to
provide the Probate Court with objective guidance. See
General Statutes (Rev. to 2005) § 45a-649 (b) (2) (‘‘[T]he
respondent . . . has a right to be represented by an
attorney . . . . If the respondent is unable to request
or obtain counsel for any reason, the court shall appoint
an attorney to represent the respondent . . . .’’
[Emphasis added.]). Accordingly, our conclusion in the
present case that attorneys for respondents and conservatees are not entitled to quasi-judicial immunity is not
inconsistent with Carrubba.
Newman also relies on Lesnewski v. Redvers, 276
Conn. 526, 886 A.2d 1207 (2005), to support his argument that attorneys for respondents and conservatees
are entitled to quasi-judicial immunity because they are
expected to act in the client’s best interests. See id.,
540 (‘‘for both a minor and an adult incapable person,
the court’s purpose in providing them with representation is to ensure that their legal disability will not undermine the adequate protection of their interests’’). In
Lesnewski, this court concluded that the plaintiff, a
conservatee, could bring an appeal from an order of
the Probate Court in her own name only if her attorney
could convince the court that the appeal was in the
plaintiff’s best interests. Id., 541. This court also concluded that, if a conservatee’s articulated preference
conflicted with his or her best interests, the attorney
could not bring an appeal, but the appeal must be
brought through a guardian ad litem or next friend. Id.
In support of this conclusion we relied on our decision
in Newman v. Newman, 235 Conn. 82, 100, 663 A.2d
980 (1995), in which we concluded that the minor children in a marital dissolution proceeding can appeal in
their own name only if they can persuade the trial court
that an appeal is in their best interests. This is because,
as we have explained, ‘‘the governing standard [with
respect to the representation of minor children in dissolution proceedings] is the best interests of the minor
children.’’ Id. As we also have explained, however, the
governing standard for the representation of impaired
adult clients is not the protection of their best interests,
but, to the extent possible, the zealous advocacy of
their expressed preferences. This is true even if the
Probate Court has appointed a conservator for the client. See Rules of Professional Conduct (2005) 1.14, commentary (‘‘[e]ven if the person does have a legal
representative, the lawyer should as far as possible
accord the represented person the status of client’’);
Schult v. Schult, supra, 241 Conn. 783 (‘‘[T]he rules . . .
recognize that there will be situations in which the
positions of the child’s attorney and the guardian may
differ. . . . Although we agree that ordinarily the
attorney should look to the guardian, we do not agree
that the rules require such action in every case.’’ [Citation omitted; emphasis in original.]). Accordingly, we
now clarify that, if a conservatee expresses a preference
to appeal from an order of the Probate Court, and the
attorney believes and can persuade the trial court that
the conservatee’s preference is reasonable and
informed, the trial court should allow the appeal even
if the attorney does not prove that an appeal would be
in the client’s best interests.24 Only upon determining
that the conservatee’s preference to appeal is unreasonable would the court be required to determine whether
an appeal would be in the conservatee’s best interest.25
To the extent that Lesnewski held that a conservatee
may file an appeal in his or her own name only when
the conservatee’s attorney persuades the court that an
appeal is in the conservatee’s best interests, it is hereby
overruled. Accordingly, the case no longer supports
Newman’s claim that attorneys for respondents and
conservatees generally must act to protect their clients’
best interests, and not to advocate their articulated preferences.
Newman also argues that, even if attorneys for conservatees are not entitled to quasi-judicial immunity,
attorneys for respondents in conservatorship proceedings are entitled to such immunity because, ‘‘unless and
until the court finds that the statutory prerequisites are
met and appoints a conservator, the attorney is the
only one who can act for the respondent.’’ As we have
indicated, it is true that, if an important right or interest
of the client is at stake and immediate action is required,
the attorney for a respondent may be required to act
as a de facto guardian to protect that specific interest.
It does not follow, however, that an attorney for a
respondent should act as the client’s general de facto
guardian during that period or that the attorney generally should rely solely on his or her own judgment
regarding the client’s best interests in deciding whether
to oppose an involuntary conservatorship. As we have
indicated, an attorney may act as the de facto guardian
of an impaired client only in exceptional circumstances,
and whether a conservatorship is in the client’s best
interests is for the Probate Court to decide, not the
attorney. It would be anomalous to conclude that, when
an individual is facing one of the most serious infringements on personal liberty and autonomy authorized by
law; see Edward W. v. Lamkins, 99 Cal. App. 4th 516,
530–31, 122 Cal. Rptr. 2d 1 (2002) (‘‘commitment is a
deprivation of [constitutional due process right to] liberty [and] is incarceration against one’s will, whether
it is called criminal or civil’’; [internal quotation marks
omitted]; and committed person faces possible loss of
right to be free of physical restraint, right to practice
profession, right to hold public office, right to marry,
right to refuse certain types of medical treatment, right
to vote, right to contract, and loss of reputation); V.
Gottlich, supra, 7 Md. J. Contemp. Legal Issues 197
(guardianship ‘‘is, in one short sentence, the most punitive civil penalty that can be levied against an American
citizen’’);26 the attorney is least obligated to advocate
for the individual’s express wishes.27
Finally, Newman argues that, because the 2007
amendments to the statutory scheme governing conservatorship proceedings; see Public Acts 2007, No. 07116; clarified that a court-appointed attorney is ‘‘closer
to (but still not entirely) an independent advocate, more
responsive to the wishes of the proposed conservatee
and with a less objective role in the process,’’ the
amendments support a conclusion that, under the 2005
statutory scheme, attorneys were expected to act as
advocates for their client’s best interests. See Chatterjee
v. Commissioner of Revenue Services, 277 Conn. 681,
693, 894 A.2d 919 (2006) (‘‘[w]hen the legislature
amends the language of a statute, it is presumed that
it intended to change the meaning of the statute and
to accomplish some purpose’’ [internal quotation marks
omitted]). It does not follow from the fact that the
legislature has provided new additional rights to respondents and conservatees,28 however, that the legislature
previously intended that a court-appointed attorney
would not act primarily as a zealous advocate for their
clients’ expressed wishes, but would assist the Probate
Court in determining the clients’ best interests. Accordingly, we reject this claim.29
III
Finally, we address the third certified question: What
is the role of conservators, court-appointed attorneys
for conservatees, and nursing homes in the Connecticut
probate court system, in light of the six factors for
determining quasi-judicial immunity outlined in Cleavinger v. Saxner, supra, 474 U.S. 202 Because parts I
and II of this opinion are responsive to the portions of
this question relating to conservators and courtappointed attorneys, we focus our analysis in part III
of our opinion exclusively on the role of nursing homes
with respect to conservatees.30 The District Court found
that ‘‘Judge Brunnock ordered Gross be placed in a
nursing home, issued an order approving the disbursement of Gross’s assets to cover his costs of living and
ordered the restrictions placed on [the plaintiff’s] visitation rights.’’31 King v. Rell, supra, United States District
Court, Docket No. 3:06-cv-1703(VLB). The District
Court concluded that Grove Manor was entitled to
quasi-judicial immunity to the extent that it was executing these orders.32 Id. We conclude that Grove Manor
was neither executing the orders of the Probate Court
nor performing a function comparable to that of the
Probate Court when it admitted and cared for Gross,
but was merely following the instructions of the conservator and performing its ordinary function as a nursing
home. Accordingly, we conclude that it was not entitled
to quasi-judicial immunity.
General Statutes § 45a-98 provides in relevant part:
‘‘(a) Courts of probate in their respective districts shall
have the power to . . . (7) make any lawful orders or
decrees to carry into effect the power and jurisdiction
conferred upon them by the laws of this state.’’ This
court previously has recognized, however, that ‘‘[t]he
[P]robate [C]ourt is a court of limited jurisdiction and
has only such powers as are given it by statute or are
reasonably to be implied in order to carry out its statutory powers.’’ Prince v. Sheffield, 158 Conn. 286, 293–94,
259 A.2d 621 (1969). We also have held that ‘‘[t]he situation . . . in which the Probate Court may exercise
equitable jurisdiction must be one which arises within
the framework of a matter already before it, and
wherein the application of equity is but a necessary
step in the direction of the final determination of the
entire matter.’’ Palmer v. Hartford National Bank &
Trust Co., 160 Conn. 415, 429, 279 A.2d 726 (1971). The
Probate Court ‘‘does not have plenary powers in equity
and cannot adjudicate questions affecting persons who
are strangers to the issues involved . . . .’’ Delaney v.
Kennaugh, 105 Conn. 557, 562–63, 136 A.108 (1927); cf.
Union & New Haven Trust Co. v. Sherwood, 110 Conn.
150, 161, 147 A. 562 (1929) (Probate Courts ‘‘possess
certain incidental powers beyond the scope of those
expressly confided to them, where such powers become
necessary in the discharge of duties imposed upon them
or are necessary for the adjustment of the equitable
rights before the court’’ [internal quotation marks omitted]). This is because, ‘‘in an equitable action, facts
must often be found. . . . Yet no jury trial is permitted
in cases of this type, in either the Probate Court or in
the Superior Court on an appeal from probate. . . .
The Probate Court may not adjudicate complex legal
questions which are subject to the broad jurisdiction
of a general court of equity. . . . Thus, the Probate
Court lacks essential powers necessary to handle independent equitable actions . . . .’’ (Citations omitted.)
Palmer v. Hartford National Bank & Trust Co.,
supra, 430.
In the present case, Grove Manor has provided no
support for the proposition that the Probate Court has
the statutory authority in conservatorship proceedings
to issue an order to an entity that was not a party to
the conservatorship proceeding, such as a nursing
home, that has the force of an injunction.33 Rather, the
authority of the Probate Court with respect to conservators of the person is to appoint the conservator; see
General Statutes (Rev. to 2005) § 45a-650 (d); and to
receive the reports of the conservator regarding the
conservatee’s condition. See General Statutes (Rev. to
2005) § 45a-656 (a) (6). In addition, the Probate Court
has general supervisory authority over the conservator;
see Elmendorf v. Poprocki, supra, 155 Conn. 118; and, if
requested by the conservator, may authorize or approve
the conservator’s decisions regarding the care of the
conservatee; see footnote 15 of this opinion; in which
case the conservator is deemed to be acting as the
court’s agent. See Murphy v. Wakelee, supra, 247 Conn.
406–407. The apparent purpose of these provisions is
to authorize the Probate Court, with the assistance of
the conservator, to make decisions regarding the care
and maintenance of a person who is incapable of making such decisions on his or her own behalf, not to
authorize the court to impose duties on third parties,
such as a nursing home. Moreover, the power to issue
injunctive orders to third parties regarding the conservatee’s care is not necessary or incidental to the Probate
Court’s authority to make such decisions, any more
than the power to issue injunctions is necessary or
incidental to the right of a competent person to make
decisions regarding his or her own care. Accordingly,
we conclude that the Probate Court does not have the
statutory authority to issue injunctive orders to third
parties to carry out its decisions on behalf of a conservatee.
It follows that, although a conservator is acting as
an agent of the Probate Court when it gives courtapproved instructions to the nursing home regarding
the conservatee’s admission and care, the nursing home
is not acting as the Probate Court’s agent when it complies with the conservator’s instructions. Rather, it
would appear that nursing homes have essentially the
same relationship with conservators that they have with
competent persons who are seeking admission or are
admitted to the nursing home, and are bound by the
court-approved instructions of conservators only to the
same extent that they are bound by the instructions of
competent clients.34 Although a nursing home may have
a legal obligation to honor the instructions of a competent client, and although the fact that it was following
the client’s instructions may be raised as a defense in
an action arising from its conduct, the nursing home is
not entitled to quasi-judicial immunity from such an
action. Similarly, a nursing home confronted with a
claim that it admitted and held a conservatee against
his or her will in violation of federal civil rights law
generally should be entitled to raise the defense that it
was acting in reasonable reliance on the conservator’s
instructions, and reasonable reliance generally may be
established by showing that the conservator’s instructions were expressly authorized by the Probate Court.35
Because a nursing home is simply functioning in its
ordinary role as a nursing home when it complies with
a conservator’s court-approved instructions regarding
the admission and care of a conservatee, however, and
is not performing the judicial function of the Probate
Court, it is not entitled to absolute quasi-judicial immunity from suit under federal law.36 See Miller v. Gammie,
supra, 335 F.3d 897 (‘‘[A]bsolute immunity shields only
those who perform a function that enjoyed absolute
immunity at common law. Even actions taken with
court approval or under a court’s direction are not in
and of themselves entitled to quasi-judicial, absolute
immunity.’’).
In support of its claim that nursing homes are performing a judicial function when they admit residents
pursuant to the order of the Probate Court, Grove
Manor relies primarily on Miller v. Director, Middletown State Hospital, 146 F. Sup. 674, 676 (S.D.N.Y.
1956), in which the plaintiff was committed to a state
mental hospital pursuant to the New York rules of criminal procedure. Although it is not entirely clear from the
opinion, it is reasonable to conclude that the institution
was designated by the state as the place at which committed criminal defendants would be confined, and that
the institution had no discretion to refuse to accept the
plaintiff.37 The plaintiff ‘‘escaped’’ from the hospital and
sought damages from the director of the hospital for
his illegal confinement and an injunction against further
confinement. Id. With respect to the claim for damages,
the court held that, ‘‘[t]o the extent that the director
was called upon to exercise discretion in determining
when the plaintiff should be discharged, he was exercising a quasi-judicial role and is therefore immune. To
the extent that he was merely executing the order of the
[s]tate Supreme Court justice his immunity is equally
clear.’’ Id., 678.
As we have indicated, in the present case, Grove
Manor has pointed to no authority for the proposition
that a conservatee can be ‘‘committed’’ by the Probate
Court to a nursing home or the proposition that a nursing home could be bound by an order of the Probate
Court to confine a conservatee. Thus, private nursing
homes are not in the same position as a state-run institution designated by the state as the place where committed criminal defendants are to be confined. Indeed,
Grove Manor has not cited, and our research has not
revealed, a single case in which a private nursing home
claimed that it was entitled to quasi-judicial immunity
from an action arising from its care of a conservatee.
Accordingly, we find Miller to be of limited persuasive value.
The certified questions are answered as follows: (1)
absolute quasi-judicial immunity extends to a conservator appointed by the Probate Court only when the conservator is executing an order of the Probate Court or
the conservator’s actions are ratified by the Probate
Court; (2) absolute quasi-judicial immunity does not
extend to attorneys appointed to represent respondents
in conservatorship proceedings or conservatees; and
(3) our analysis of the first and second certified questions is responsive to the third certified question as it
relates to the roles of conservators and court-appointed
attorneys; with respect to nursing homes caring for
conservatees, we conclude that their function does not
entitle them to quasi-judicial immunity under any circumstances.
No costs shall be taxed in this court to the parties.
In this opinion PALMER, EVELEIGH and HARPER,
Js., concurred.
1
General Statutes § 51-199b (d) provides: ‘‘The Supreme Court may answer
a question of law certified to it by a court of the United States or by the
highest court of another state or of a tribe, if the answer may be determinative
of an issue in pending litigation in the certifying court and if there is no
controlling appellate decision, constitutional provision or statute of this
state.’’
2
Gross originally brought the complaint in the United States District Court
for the District of Connecticut. After his death in 2007, the District Court
granted the motion of his daughter, Carolyn Dee King, who was also the
administratrix of his estate, to be substituted as the plaintiff. Hereinafter,
we refer to Gross by name and to King as the plaintiff.
3
As the opinion of the United States Court of Appeals noted, Connecticut’s
statutory conservatorship scheme; see General Statutes §§ 45a-644 through
45a-663; was amended in 2007, after the incidents in the present case took
place. Gross v. Rell, 585 F.3d 72, 76 n.2 (2d Cir. 2009). The United States
Court of Appeals was ‘‘of the opinion that the 2007 revisions do not affect
the underlying issues in this case regarding quasi-judicial immunity.’’ Id.
The court also stated that it had ‘‘no reason to conclude that [the amendments] should apply retroactively, and the parties do not suggest otherwise.’’
Id. Accordingly, in this opinion, we focus our analysis on the 2005 revision
of the conservatorship scheme, which was in place at the time that the
relevant events occurred. Unless otherwise indicated, all references to the
conservatorship scheme, §§ 45a-644 through 45a-663, in this opinion are to
the 2005 revision.
4
The complaint named as defendants: M. Jodi Rell, then governor of
Connecticut; Ewald; Judge Brunnock; Donovan; Newman; and Grove Manor.
‘‘The claims against Donovan include violation of 42 U.S.C. § 1985, violation
of Gross’s due process rights pursuant to 42 U.S.C. § 1983, intentional infliction of emotional distress, negligent infliction of emotional distress, breach
of fiduciary duty, false arrest, assault and false imprisonment. Gross alleges
that Grove Manor violated 42 U.S.C. § 1985, 42 U.S.C. § 1396r, part of the
Omnibus Budget Reconciliation Act of 1989 . . . and the Connecticut
Patient[s’] Bill of Rights . . . General Statutes § 19a-550, as well as claims
for negligent and intentional infliction of emotional distress. Against Newman, Gross asserts claims for violation of 42 U.S.C. § 1985, violation of
Gross’s due process rights pursuant to 42 U.S.C. § 1983, intentional infliction
of emotional distress, negligent infliction of emotional distress, and legal
malpractice.’’ King v. Rell, United States District Court, Docket No. 3:06cv-1703 (VLB) (D. Conn. March 24, 2008).
5
The Court of Appeals affirmed the District Court’s dismissal of the state
and federal statutory claims against Grove Manor on waiver grounds; Gross
v. Rell, supra, 585 F.3d 94; and affirmed the dismissal of the tort claims
against Grove Manor for failure to meet the minimum jurisdictional damage
amount, without prejudice to the plaintiff’s right to reassert those claims if
any of the remaining civil rights claims against Grove Manor or the claims
against Donovan and Newman ultimately survived. Id., 95. The court also
affirmed the District Court’s judgment dismissing the claims against Judge
Brunnock; id., 86; and Governor Rell. Id., 96. Finally, the court affirmed the
judgment dismissing the claims against Ewald on the ground that the claim
failed to meet the minimum jurisdictional damage amount, again without
prejudice to the plaintiff’s right to reassert the claim. Id.
6
After this court granted certification on the three questions, it granted
the applications of the Connecticut Probate Assembly, American Association
of Retired Persons, National Consumer Voice for Quality Long-Term Care,
National Senior Citizens Law Center, Jerome N. Frank Legal Services Organization, Center for Public Representation, Connecticut State Independent
Living Council, Disability Resource Center of Fairfield County, South Central
Behavioral Health Network, Western Connecticut Association for Human
Rights, National Disability Rights Network, Advocacy Unlimited, Inc., American Civil Liberties Union, Connecticut Association of Centers for Independent Living, Disability Advocacy Collaborative, National Alliance on Mental
Illness-CT, National Association for Rights Protection and Advocacy, People
First of Connecticut, Mental Health Association of Connecticut, Inc., and
the office of protection and advocacy for persons with disabilities of the
state of Connecticut for permission to file briefs on the certified questions
as amici curiae.
7
This court determined in Spring v. Constantino, 168 Conn. 563, 576, 362
A.2d 871 (1975), that public defenders are not entitled to absolute quasijudicial immunity. In 1976, the legislature, through the enactment of Public
Acts 1976, No. 76-371, §§ 1 and 2, added public defenders to the definition
of ‘‘state officers and employees’’ entitled to qualified statutory sovereign
immunity pursuant to General Statutes § 4-165.
8
As we have indicated, the United States Court of Appeals held in the
present case that a judge of the Connecticut Probate Court is entitled to
judicial immunity. Gross v. Rell, supra, 585 F.3d 84. The plaintiff does not
appear to dispute this conclusion, but disputes only that the judge was
acting within its jurisdiction. Id. Although this court previously has not
addressed this question, it is clear to us that the Court of Appeals properly
concluded that a judge of the Probate Court is entitled to judicial immunity
and ‘‘will be subject to liability only when he has acted in the clear absence
of all jurisdiction.’’ (Emphasis in original; internal quotation marks omitted.) Id.
9
General Statutes (Rev. to 2005) § 45a-655 (a) provides: ‘‘A conservator
of the estate appointed under section 45a-646, 45a-650 or 45a-654 shall,
within two months after the date of his or her appointment, make and file
in the Court of Probate, an inventory under penalty of false statement of
the estate of his or her ward, with the properties thereof appraised or caused
to be appraised, by such conservator, at fair market value as of the date of
his or her appointment. Such inventory shall include the value of the ward’s
interest in all property in which the ward has a legal or equitable present
interest, including, but not limited to, the ward’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
ward and those members of the ward’s family whom he or she has the legal
duty to support and to pay the ward’s debts, and may sue for and collect
all debts due the ward.’’
10
General Statutes (Rev. to 2005) § 45a-656 (a) provides: ‘‘The conservator
of the person shall have: (1) The duty and responsibility for the general
custody of the respondent; (2) the power to establish his or her place of
abode within the state; (3) the power to give consent for his or her medical
or other professional care, counsel, treatment or service; (4) the duty to
provide for the care, comfort and maintenance of the ward; (5) the duty to
take reasonable care of the respondent’s personal effects; and (6) the duty to
report at least annually to the probate court which appointed the conservator
regarding the condition of the respondent. The preceding duties, responsibilities and powers shall be carried out within the limitations of the resources
available to the ward, either through his own estate or through private or
public assistance.’’
11
See also Murphy v. Wakelee, 247 Conn. 396, 406, 721 A.2d 1181 (1998)
(‘‘[t]he [Probate Court] and not the conservator, is primarily entrusted with
the care and management of the ward’s estate, and, in many respects, the
conservator is but the agent of the court’’ [emphasis in original; internal
quotation marks omitted]); Marcus’ Appeal from Probate, 199 Conn. 524,
529, 509 A.2d 1 (1986) (same).
12
General Statutes § 45a-202 (a) provides: ‘‘Any person, acting as a fidu-
ciary as defined by section 45a-199 or in any other fiduciary capacity, who
in good faith makes payments or delivers property or estate pursuant to
the order of the court of probate having jurisdiction before an appeal has
been taken from such order, shall not be liable for the money so paid, or
the property so delivered, even if the order under which such payment or
delivery has been made is later reversed, vacated or set aside.’’
13
We do not believe that there is a high ‘‘ ‘likelihood of harassment or
intimidation’ ’’ of conservators by conservatees or third parties when they
are functioning as the agent of the Probate Court. Carrubba v. Moskowitz,
supra, 274 Conn. 543. Nevertheless, because conservators act as agents for
the Probate Court when their acts are authorized or approved, any risk of
harassment or intimidation is sufficient to justify quasi-judicial immunity,
just as it is for the Probate Court itself.
14
See Trapp v. State, 53 P.3d 1128, 1132 (Alaska 2002) (because conservators may be sued pursuant to statute and act as fiduciaries for conservatees,
they are not entitled to quasi-judicial immunity); Frey v. Blanket Corp., 255
Neb. 100, 107, 582 N.W.2d 336 (1998) (because guardian must post bond
and may be held liable pursuant to statute, and because ‘‘the role of a
guardian in selecting a residence for an incapacitated ward is not closely
related to or ancillary to a court’s adjudication of a particular matter,’’
guardian is not entitled to quasi-judicial immunity). Donovan cites a number
of cases for the proposition that conservators and guardians are generally
entitled to absolute quasi-judicial immunity. See Cok v. Consentino, 876
F.2d 1, 3 (1st Cir. 1989) (court-appointed conservator is immune from action
for damages resulting from quasi-judicial activities); Mosher v. Saalfeld, 589
F.2d 438, 442 (9th Cir. 1978) (conservator of estate is entitled to absolute
quasi-judicial immunity because ‘‘[h]e was acting pursuant to his court
appointed authority in the performance of his statutory duties’’), cert. denied,
442 U.S. 941, 99 S. Ct. 2883, 61 L. Ed. 2d 311 (1979); Zimmerman v. Nolker,
United States District Court, Docket No. 08-4216-CV-C-NKL (W.D. Mo.
December 31, 2008) (‘‘[g]uardians ad litem and conservators making recommendations to a court and managing assets are entitled to absolute immunity
in their roles as court delegees’’); Sasscer v. Barrios-Paoli, United States
District Court, Docket No. 05 Civ. 2196 (RMB) (DCF) (S.D.N.Y. December
8, 2008) (guardians are ‘‘entitled to immunity to the extent they acted as
non-judicial persons fulfilling quasi-judicial functions’’ [internal quotation
marks omitted]); Faraldo v. Kessler, United States District Court, Docket
No. 08-CV-0261 (SJF) (ETB) (E.D.N.Y. January 23, 2008) (court-appointed
evaluator in guardianship proceeding is entitled to quasi-judicial immunity);
Holmes v. Silver Cross Hospital of Joliet, 340 F. Sup. 125, 131 (N.D. Ill.
1972) (conservator is entitled to judicial immunity when ‘‘[h]is order of
appointment . . . was made with specific directions as to his course of
conduct as a conservator, giving him no discretion’’). Because it is not clear
in all of these cases that immunity was extended to conservators even when
they were acting without the authorization or approval of the court, and
because the cases that may be interpreted as extending that far engage in
little analysis, we find the cases unpersuasive on that issue.
15
Although a conservator of the person is not statutorily required to obtain
the authorization or approval of the Probate Court when exercising the
powers enumerated in § 45a-656, nothing prevents the conservator from
doing so. See Johnson’s Appeal from Probate, supra, 71 Conn. 598 (‘‘under
our law the custody of the ward . . . is primarily intrusted to the Court
of Probate’’).
16
Contrary to the dissenting justice’s statement that the majority has
‘‘inexplicably fail[ed] to explain why the similarities between [the duties of
conservators] and the duties of both guardians ad litem and attorneys for
minor children do not justify extending the same level of immunity to
conservators,’’ the foregoing analysis explains this distinction.
17
General Statutes (Rev. to 2005) § 45a-649 (b) provides in relevant part:
‘‘(1) The notice required by subdivision (1) of subsection (a) of this section
shall specify (A) the nature of involuntary representation sought and the
legal consequences thereof, (B) the facts alleged in the application, and (C)
the time and place of the hearing. (2) The notice shall further state that the
respondent has a right to be present at the hearing and has a right to be
represented by an attorney at his or her own expense. If the respondent is
unable to request or obtain counsel for any reason, the court shall appoint
an attorney to represent the respondent in any proceeding under this title
involving the respondent. . . .’’
18
In apparent recognition of these concerns, the commentary to rule 1.14
of the Rules of Professional Conduct no longer provides that attorneys for
clients with impaired capacity must often act as de facto guardians.
19
The commentary provides: ‘‘If the lawyer represents the guardian as
distinct from the ward, and is aware that the guardian is acting adversely
to the ward’s interest, the lawyer may have an obligation to prevent or
rectify the guardian’s misconduct.’’ Rules of Professional Conduct (2005)
1.14, commentary. A fortiori, if the attorney represents the ward, and not
the guardian, he or she has such an obligation.
20
Newman contends that the decisions of attorneys for respondents and
conservatees are correctable on appeal because § 45a-186 provides for
appeals from Probate Court decisions. The fact that, in a particular case,
the Probate Court’s ruling may have derived from an attorney’s decision
does not mean, however, that the attorney’s decision itself is correctable
on appeal. Indeed, the attorney’s improper or unauthorized decision may
prevent an appeal or take place during an appeal.
21
We emphasize that, although attorneys for respondents and conservatees are not entitled to quasi-judicial immunity, they are not barred from
raising the defense that they disregarded an impaired client’s expressed
wishes in a reasonable and good faith belief that the client was not capable
of making reasonable and informed decisions. See Rules of Professional
Conduct (2005) 1.14, commentary (‘‘[i]f the person has no guardian or legal
representative, the lawyer often must act as de facto guardian’’); id. (‘‘[i]f
a legal representative has already been appointed for the client, the lawyer
should ordinarily look to the representative for decisions on behalf of the
client’’). An assessment by the attorney with which the trial court, in retrospect, disagrees does not necessarily rise to the level of an ethical violation
or malpractice. Otherwise, every time an attorney requested that a conservator be appointed for an impaired client against the client’s wishes, and the
Probate Court concluded that a conservator was not required, the attorney
would be subject to discipline.
22
See Carrubba v. Moskowitz, supra, 274 Conn. 539 (although, ‘‘[a]s an
advocate, the attorney should honor the strongly articulated preference
regarding taking an appeal of a child who is old enough to express a reasonable preference; as a guardian, the attorney might decide that, despite such
a child’s present wishes, the contrary course of action would be in the
child’s long term best interests’’ [internal quotation marks omitted]); cf.
State v. Sanchez, 25 Conn. App. 21, 26, 592 A.2d 413 (1991) (‘‘children, unlike
adults, are not presumed to be competent [witnesses]’’).
23
We recognize that, by its express terms, rule 1.14 applies to minors. See
Rules of Professional Conduct (2005) 1.14 (a) (‘‘[w]hen a client’s ability to
make adequately considered decisions in connection with the representation
is impaired, whether because of minority, mental disability or for some
other reason, the lawyer shall, as far as reasonably possible, maintain a
normal client-lawyer relationship with the client’’ [emphasis added]). As we
recognized in Carrubba, however, the extent to which an attorney can
maintain a normal client-lawyer relationship with a child is inherently curtailed, even when the child is unimpaired. That is not true for adults.
24
Again, we emphasize that, if the conservator determines that the conservatee’s articulated preference to appeal is unreasonable, the attorney ordinarily should be guided by that determination, and the attorney’s failure to
act on the conservatee’s articulated preference under these circumstances
would not ordinarily constitute an ethical violation. See footnote 21 of this
opinion. We conclude only that the attorney is not bound by the conservator’s
decisions based on the conservatee’s best interests if the attorney believes
that the conservatee’s articulated preference is reasonable and informed.
25
Of course, if a conservatee is gravely impaired and is incapable of
articulating any preferences, the attorney and the trial court can be guided
only by the conservatee’s best interests. If a conservatee is so gravely
impaired, however, there would seem to be little reason to appoint an
attorney to represent the conservatee, as distinct from the conservator,
inasmuch as the primary role of an attorney for a conservatee is to advocate
for his or her articulated preferences, and an attorney for a conservator has
an obligation to protect the conservatee from any acts by the conservator
that could be adverse to the conservatee’s interests. See Rules of Professional
Conduct (2005) 1.14, commentary (‘‘[i]f the lawyer represents the guardian
as distinct from the ward, and is aware that the guardian is acting adversely
to the ward’s interest, the lawyer may have an obligation to prevent or
rectify the guardian’s misconduct’’).
26
Although an involuntary conservatorship is not an involuntary commitment or a guardianship, as the facts of the present case show, an involuntary
conservatee potentially faces many of the same infringements on personal
liberty and autonomy.
27
We recognize the difficult ethical dilemma faced by attorneys representing clients with severely impaired decision-making capacities, and we
emphasize that we do not suggest that an attorney for a respondent cannot,
under any circumstances, argue in favor of an involuntary conservatorship
against the client’s express wishes. See In re J.C.T., supra, 176 P.3d 735
(attorney may seek guardianship for impaired client ‘‘where immediate and
irreparable harm will result from the slightest delay’’ [internal quotation
marks omitted]); In re M.R., supra, 135 N.J. 176 (attorney’s duty to advocate
for expressed wishes of client with impaired capacity ‘‘does not extend to
advocating decisions that are patently absurd or that pose an undue risk of
harm to the client’’). We conclude only that, under the Rules of Professional
Conduct, an attorney may act as the client’s de facto guardian or advocate
for an involuntary conservatorship against the client’s express wishes only
if it is unmistakably clear that the client is incapable of making reasonable
and informed decisions and the attorney is of the firm belief that a conservatorship is the only way to protect important interests of the client. Affording
quasi-judicial immunity to all attorneys for all respondents merely because
the decision whether to act as an advocate or as a de facto guardian may
be very difficult in an exceptional case would be allowing the tail to wag
the dog.
28
See, e.g., Public Acts 2007, No. 07-116, § 15 (c), codified at General
Statutes § 45a-649a (c) (‘‘the attorney for the conserved person shall assist
in the filing and commencing of an appeal to the Superior Court’’).
29
For all of the foregoing reasons, we also reject Newman’s claim that,
even if attorneys for respondents and conservatees are not entitled to absolute quasi-judicial immunity, they are entitled to qualified immunity.
30
The amicus Connecticut Probate Assembly argues that this court should
suggest to the Second Circuit Court of Appeals that it defer resolving the
question of whether conservators are entitled to quasi-judicial immunity
under federal law. The amicus contends that resolution of the issue is
unnecessary inasmuch as the plaintiff cannot prevail on her claims against
the conservator pursuant to 42 U.S.C. § 1983 in any event, for the reason
that conservators are not state actors. Because this argument goes to the
merits of the plaintiff’s federal claims against conservators, and because
the Court of Appeals has not sought the guidance of this court on this issue,
we decline to address it.
31
The plaintiff’s complaint alleges that, ‘‘[o]n November 3, 2005, at the
request of . . . Donovan . . . Brunnock issued an ex parte decree stating
‘All visitation by [the plaintiff] for . . . Gross is temporarily suspended.
This order applies only to off premises visitation. [The plaintiff] may visit
at the health center.’ ’’ The complaint further alleges that, ‘‘[o]n May 1, 2006,
at the request of . . . Donovan . . . Brunnock issued an ex parte decree
stating ‘Wherefore it is ordered and decreed that . . . [the plaintiff] not be
allowed to take . . . Gross off premises from Grove Manor . . . . [The
plaintiff’s] visitation is limited to one . . . visit per day not to exceed one
. . . hour. [The plaintiff] is not to bring any recording devices (visual and/
or audio) into Grove Manor . . . .’ ’’
32
Grove Manor does not challenge the United States District Court’s conclusion that nursing homes are not entitled to quasi-judicial immunity for
discretionary acts that give rise to state tort claims and claims arising from
alleged violations of the Connecticut Patients’ Bill of Rights, General Statutes
§ 19a-550, and the Court of Appeals did not ask us to address this issue.
33
The District Court found that ‘‘[a]n order of the Probate Court is required
before a ward may be placed in a long-term care facility. See [General
Statutes] § 45a-656 (c).’’ King v. Rell, supra, United States District Court,
Docket No. 3:06-cv-1703 (VLB). Because General Statutes (Rev. to 2005)
§ 45a-656 does not have a subsection (c), and the current revision of § 45a656 (c) does not govern the placement of conservatees in a long-term care
facility, we assume that the District Court intended to refer to the current
revision of § 45a-656b (b), which requires a conservator to obtain the permission of the Probate Court before making such a placement. Section 45a656b (b) was enacted in 2007 and was not in place at the time of the events
in the present case. See Public Acts 2007, No. 07-116, § 21 (b). As we have
indicated, a conservator of the person is not required pursuant to General
Statutes (Rev. to 2005) § 45a-656 to obtain permission from the Probate
Court before placing a conservatee in a nursing home. See footnote 15 of
this opinion. Even if § 45a-656b applied in the present case, however, the
purpose of the statutory requirement that the conservator obtain the permission of the Probate Court is to protect the conservatee’s liberty and autonomy
interests, not to impose any duty on a third party. Although, in light of this
new statutory provision, a nursing home may decide to refuse to admit a
conservatee in the absence of proof that the conservator has obtained the
permission of the Probate Court, nothing in the statute suggests that the
Probate Court may direct orders at a long-term care facility.
We recognize that General Statutes (Rev. to 2005) § 45a-649 (a) (2) provides that, upon an application for an involuntary conservatorship, ‘‘[t]he
[Probate] [C]ourt shall order such notice as it directs to the following . . .
(G) the person in charge of the hospital, nursing home or some other
institution, if the respondent is in a hospital, nursing home or some other
institution.’’ In addition, the statute refers to the persons who receive such
notice as ‘‘parties.’’ General Statutes (Rev. to 2005) § 45a-649 (a) (‘‘the court
shall issue a citation to the following enumerated parties’’). For the reasons
stated in this opinion, however, we conclude that the role of the ‘‘person
in charge of the hospital, nursing home or . . . other institution’’; General
Statutes (Rev. to 2005) § 45a-649 (a) (2) (G); who receives such notice is
to help the Probate Court to decide whether an involuntary conservatorship
is in the respondent’s best interests, and the person is not a ‘‘party’’ to the
proceeding in the ordinary sense of that term, i.e., the person is not subject
to the jurisdiction of the Probate Court. In any event, in the present case,
the parties have pointed to no evidence that Grove Manor was given notice
of the conservatorship proceeding pursuant to § 45a-649 (a) (2). Indeed,
the record suggests that Grove Manor did not become involved with the
conservatee’s case until after the conservatorship was imposed.
34
Although a nursing home generally would be entitled to rely on the
decisions of the conservator regarding the admission and treatment of the
conservatee, especially if a decision has been authorized or approved by the
Probate Court, it would not be legally bound to comply with the conservator’s
requests and instructions to any greater extent than it is bound to comply
with the decisions of competent nursing home residents. For example, if a
nursing home believed that a conservatee’s resistance to an involuntary
conservatorship would make the conservatee an unduly difficult or risky
resident of that facility, Grove Manor has pointed to no authority, and we
are aware of none, for the proposition that the nursing home would be
required to comply with the conservator’s request that it admit the conservatee. Rather, the conservator’s court-approved request permits the nursing
home to admit the conservatee without the conservatee’s personal consent.
Although a nursing home’s failure to comply with a conservator’s instructions regarding the care of the conservatee might, in certain circumstances,
subject the nursing home to some type of legal action in the Superior Court,
as might its failure to comply with the instructions of a competent client,
the nursing home is not subject to the jurisdiction of the Probate Court
and, therefore, cannot be violating any order of the Probate Court if it fails
to follow the conservator’s instructions.
Thus, the Probate Court’s orders in the present case merely authorized
Donovan to inform Grove Manor of her decisions regarding Gross’ care and
treatment and permitted Grove Manor to carry out those decisions without
Gross’ personal consent, and were not binding on Grove Manor to any
greater degree than instructions from Gross would have been if he had been
deemed competent.
35
There may be exceptions, however, to this general rule. For example,
if a plaintiff could prove that a nursing home conspired in bad faith with
the Probate Court and the conservator to confine a conservatee in the
nursing home or to restrict his activities there when such confinement or
restriction clearly was not necessary or in the conservatee’s interests, the
nursing home could not prevail on the defense that it was reasonably relying
on the Probate Court’s orders.
36
We recognize that, when a nursing home is caring for a conservatee, it
may face more difficult challenges than when caring for a competent client
because of the conflicts that may arise when the conservator’s instructions
are different than the conservatee’s expressed wishes. Nevertheless, because
the nursing home simply is not performing a judicial function when it complies with the conservator’s instructions, the potential for such conflicts
does not entitle it to quasi-judicial immunity.
37
The court stated that, ‘‘[e]ven if the order was erroneously or improvidently made by the special surrogate . . . the [s]tate would not be liable
for receiving and detaining the claimant under the order of commitment.
The officers of the [s]tate [h]ospital were not required before receiving [the]
claimant under the order to institute an inquiry in order to satisfy themselves
that the special surrogate had not erroneously or improvidently made it.
No such burden is cast upon them. They were confronted by an order valid
on its face and it was their duty to yield obedience to it. In complying with
that order the officers of the institution and the [s]tate did not subject
themselves to an action for false imprisonment.’’ (Internal quotation marks
omitted.) Miller v. Director, Middletown State Hospital, supra, 146 F. Sup.
677 n.3.
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