The Connecticut Elder Law Blog

Connecticut's New Conservatorship Laws

For those of you who are involved in conservatorship matters in Connecticut, there's a whole new atmosphere in our probate courts due to a new set of laws that kicked in on October 1st.  This was prompted mostly by a great deal of negative press that the Connecticut probate system has been receiving over the last several years.

There are a lot of new administrative issues addressed by the new laws, and if you would like to review the laws in their entirety, click here for PA-07-116 and here for PA-07-117.

In regards to the "big picture" evaluation of the new laws, there are two issues to bring to your attention: (1) more formal hearings, and (2) an enhanced emphasis on the conserved person's wishes.

As of October 1st, all probate court hearings, regardless of whether or not the matter is contested, must follow the formal rules of evidence.  This includes the use of tape-recorders during hearings, swearing in anyone who provides testimony, etc.  This is a dramatic departure from the previous procedure which allowed for a more informal approach to hearings and employed more relaxed evidence rules in order to facilitate a less restrictive discussion of conservatorship matters. 

The new laws also mandate a stronger consideration of the conserved person's wishes when the conservator acts and when the Court renders a decision.  Essentially, if the conserved person can communicate his wishes and it's possible to accomodate such wishes without jeopardizing his safety and well-being (and the necessary financial support can be provided) then the conservator needs to to do what she can to fulfill those wishes.  The law talks about the "reasonable and informed preferences" of the conserved person, which is certainly open to different interpretations.  In any case, the strong emphasis on ascertaining and trying to fulfill the conserved person's wishes is new to conservatorship law in Connecticut.

President Bush Vetoes funding for Alzheimer's Research

I'm going to politely refrain from providing any political commentary because I don't want this blog to become a forum for political discussions, but President Bush vetoed a bill yesterday that included NIH funding for Alzheimer's research.  The House will be voting to override tomorrow.

If you'd like to share your thoughts with your local House representative, their numbers are below.  I've already called Congressman Larson's office and he plans to vote for the override.

Joe Courtney (202) 225-2076, Rosa DeLauro (202) 225-3661, John Larson (202) 225-2265, Christopher Murphy (202) 225-4476, Christopher Shays (202) 225-5541

The Alzheimer's Association has released a news alert if you would like to see more details about this.

Cold Sores a "Major Cause" of Alzheimer's?

I recently ran across this article from ABC News in Australia reporting on a British research study which claims that cold sores triggered by the herpes simplex virus may be a "major" cause of Alzheimer's Disease. 

The virus apparently creates a large amount of the same protein that comprises the plaque seen in the brain of an Alzheimer's patient.

The research team leader claims that this cold sore virus could be the cause of at least half of all Alzheimer's cases.

I suppose that the silver lining in this story is that, theoretically, a vaccine that prevents this virus could dramatically reduce the incidence of Alzheimer's cases.  But the article indicates that there is currently no vaccine and the development of a effective vaccine is still "quite a long way ahead". 

Seniors are Blogging!

It looks like many seniors have discovered the joys of blogging just as I have.  Recent numbers indicate that 22% of Americans over the age of 65 (about 8 milllion seniors) use the Internet.  And 3% of the online seniors have created a a blog. 

By the way, a "blog" is simply a website that is updated much more frequently than a traditional website.  A typical website could go months and even years without being changed while some blogs are updated daily and sometimes multiple times per day.  Many blogs serve as online journals (the modern equivalent of a traditional diary) that the public can read and occassionally offer feedback.

Seniors have joined the world of "bloggers" (those who create and maintain blogs) in order to keep their minds sharp, stay current on news events, meet people from around the world online and just share experiences and stories on the Internet.

There is an interesting article on this senior phenomenon at MSNBC.  And this about.com article can be helpful if you are interested in starting a blog yourself!

The $100,000 Question in Special Needs Trust Planning

There are obviously many important considerations to ponder when designing an estate plan for a beneficiary who has special needs. But the most important issue in the planning process is picking the person or persons who will be in charge of managing the special needs trust. This person is known as the "trustee" and he/she has the biggest impact on whether or not the purposes of the trust are actually carried out after you pass away. Pick the wrong person and the whole plan can come crashing down, to the severe detriment of your disabled loved one.

Ideally, you want to have a trustee that is relatively stable and financially savvy since that person may be in charge of investing a great deal of money for your loved one. The trustee should also have a good relationship with the disabled beneficiary. If the trustee interacts with the beneficiary on a regular basis then he/she will have a better understanding of the beneficiary's disability and therefore better able to make appropriate distributions from the trust funds.

A sibling of the beneficiary is often appointed as the trustee in most cases (in the event that the parents are unable to act). This arrangement is usually entirely appropriate. But you should keep in mind that most special needs trusts will indicate that any remaining trust funds will go to the beneficiary's siblings upon the death of the beneficiary. In other words, less scrupulous siblings who have been made the trustee of their sibling's trust may be motivated to withold neccesary distributions to the beneficiary since doing so would water down their future inheritance. This issue is not unprecedented, so it needs to be considered before a sibling is appointed as the trustee.

Finally, you need to have a trustee that is prudent enough to strictly follow the instructions and limitations outlined in the trust language. If the State catches wind of improper distributions from the trust (such as distributions that pays for things that the State is already covering) then there is a risk that the benefits will be cut off.  Although this is a self-serving statement, you need a trustee who is wise enough to seek specialized legal guidance if the propriety of a particular distribution is questionable.

In short, you need to give long and serious thought as to who you will name as trustee of your special needs trust. The decision can make or break all of the careful special needs planning you have done.

Your Will and Your "Stuff"

When I talk with clients about their wills, they almost always want to know how their estate planning should address their "stuff". The more refined, legal terminology for "stuff" is "tangible personal property". Things like collections, photo albums, clothing, furniture, the family coat-of-arms...they all fall into the "stuff" category. It's essentially any asset that isn't a financial item or real property. Just about everything else is your "stuff".

And don't take your stuff lightly! Any probate attorney will tell you that "stuff" often touches off very nasty legal proceedings. If you ask Judge Killian at the Hartford Probate Court about the case involving the family coat-of-arms that I mentioned in the above paragraph then you should be prepared to see his eyes roll around a great deal. So your stuff should be taken seriously in your estate planning.
If your stuff is genuinely valuable stuff which has significant financial value or will likely appreciate in value over time (like a fine painting or a baseball card collection) then it is something that will be considered part of your estate and the Probate Court will want to monitor its administration and distribution.

However, if an item has sentimental value but really no financial value (like a photo album or a family heirloom) then the Court typically prefers that the family handle its distribution outside of the probate process. This means that you are better off not mentioning it in the will and should direct its distribution with a letter or memo; something non-legal that is separate and apart from the will (attaching sticky notes with names on them to hidden spots on personal items is not unprecedented). This approach also makes it logistically easier to document any change-of-heart you may have in the future. In contrast, if you specifically mention it in the will then you need a very formal amendment process (an attorney to draft a codicil, witnesses, a notary, etc.) to make any changes.

But ( and this is an important "but") if you anticipate a family feud over any particular item, whether it's valuable or not, then specifically mention it in your will. There might still be a family feud over it, but the chances of your wishes actually being carried out go up substantially when they are in your will, which is witnessed and notarized.

One last tip: it's a somewhat morbid discussion, but you may want to consider having a family meeting to get some input from loved ones on how your stuff should be distributed. This may be the best way to avoid post-mortem court battles over your stuff.