December 21, 2011
Authored by: Luke Lantta
Guardians and conservators don’t get appointed because things are going swimmingly for the ward. In a good many of these cases, a guardian and conservator are appointed because there has been some type of financial exploitation of the ward. Once the ward has been protected going forward, the question turns to how to try to recover what the ward has lost from the exploitation and who has standing to bring the claims on behalf of the ward?
When it comes to a ward’s financial losses, in Kawecki v. Saas, the Appellate Court of Connecticut clarified that it is the conservator of the estate – and not the conservator of the person (similar to a guardian in other jurisdictions) – who has standing to bring a lawsuit to recover the ward’s financial losses.Hilary Kawecki was appointed as conservator of the person of Sophie Trent-Stevens. Renee Fahey Gentile was appointed as conservator of the estate of Trent-Stevens. Together, Kawecki and Fahey Gentile sued William J. Saas, Jr. and William J. Saas, Sr. on a five count complaint. They alleged claims for breach of fiduciary duty and statutory duty, conversion, breach of the implied covenant of good faith and fair dealing, fraud and misrepresentation, and a violation of the Connecticut Unfair Trade Practices Act. As background, Saas, Sr. had previously been the conservator of the estate of Trent-Stevens, but had been removed by order of the probate court.
Saas, Sr. sought to dismiss the complaint as to the claims of Kawecki on the ground that Kawecki lacked standing to pursue the claims in the complaint. The trial court dismissed the complaint as to Kawecki and the appellate court agreed.
The applicable Connecticut statutes set forth clear – though not exhaustive – lists of the respective powers of a conservator of the person and a conservator of the estate. A conservator of the person is generally tasked with ensuring the comfort, safety and health care needs of the ward are met. A conservator of the estate is expressly given the authority to “sue for and collect all debts due the conserved person.” Thus, only Fahey Gentile had standing to pursue these particular claims against Saas, Sr. and Saas, Jr.
The appellate court made careful note that a conservator of the person is not expressly prohibited from ever bringing an action on behalf of the ward. Thus, the claims pursued seemed to make a difference. These were purely financial claims seeking recovery based on allegations that a former conservator of the estate did not perform his statutory duties, mismanaged the estate and converted assets of the estate for his own benefit. Had the claims been different – perhaps dealing with exploitation or matters concerning the comfort, safety, or health of the ward – the result may have been different.