240 CHURCH STREET OPERATING COMPANY v. CYNTHIA TRACY.

2008 Ct. Sup. 13161, 46 CLR 164
No. CV 07 5010686Connecticut Superior Court Judicial District of New Haven at New Haven
August 6, 2008

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT NO. 110.01
COSGROVE, J.

The plaintiff moves for summary judgment on the ground that the defendant conservator failed to identify and locate the assets of her ward and failed to promptly and expeditiously establish and maintain eligibility for medicaid assistance on behalf of her ward by taking any and all actions necessary to insure that the ward’s assets were appropriately reduced and remained within the allowable limits for medicaid assistance as established by the Connecticut Department of Social Services (the department).

On April 20, 2007, the plaintiff, 240 Church Street Operating Company II, LLC d/b/a Newington Health Care Center, filed a one-count complaint for breach of fiduciary duties against the defendant, Cynthia Tracy, conservator of the estate and person of her mother, Blanche Morin (the ward). In the complaint, the plaintiff alleges the following facts. The plaintiff is a chronic care and convalescent facility to which the ward was admitted on February 16, 2006. On March 1, 2006, the ward was adjudicated by the Probate Court as incapable of managing her affairs and the defendant was appointed her conservator.[1] Medicaid paid for the services provided to the ward from February 16, 2006 through March 10, 2006 and private payments were received to satisfy cost of her care from March 11, 2006 to March 31, 2006. After applying the ward’s income, there remains a balance due and owing from April 1, 2006 through June 30, 2006, in the amount of $15,879. During her stay at the plaintiff’s facility, the defendant retained access to and control over the ward’s income, assets and financial affairs. The defendant had a duty to use the ward’s private assets and public assistance to pay the debt due and owing to the plaintiff and to make prompt and expeditious application for title XIX medicaid assistance to pay for the cost of care and services rendered and to provide all information that might be requested by the department in accordance with any application for medicaid assistance and with any deadlines established by medicaid. On May 31, 2006, the defendant filed a medicaid application with the department to CT Page 13162 have the ward qualify for medicaid payments. The defendant, however, failed to reduce her ward’s assets below $1,600, the limit set by the department, and, as a result, the ward did not become eligible for medicaid assistance until January 1, 2007.

On March 26, 2008, the plaintiff filed for permission to file a motion for summary judgment and a motion for summary judgment. In support, the plaintiff submitted a memorandum of law, a copy of the affidavit by the plaintiff’s business manager and a copy of the affidavit by the unit manager and a licensed nurse, along with a number of other documents. In the affidavit by the plaintiff’s business office manager, she averred that the plaintiff is only claiming an outstanding balance for the period of May 5, 2006 through June 30, 2006, as this period is not covered by medicaid and there is no income of the ward’s which could be diverted o pay for the balance in the amount of $15,879. On May 9, 2008, the defendant filed a memorandum of law in opposition to the plaintiff’s motion along with her affidavit claiming that genuine issues of material fact exist as to whether she performed all of her fiduciary duties and whether she performed them in a timely manner.

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Grey v. Stamford Health System, Inc., 282 Conn. 745, 750, 924 A.2d 831 (2007). “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.” (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207
(2006).

In support of its motion for summary judgment, the plaintiff argues that there are no genuine issues of material fact and based on the applicable principles of the substantive law the defendant has breached her fiduciary duty as conservator of the estate and person of the ward. The plaintiff relies on the Connecticut Supreme Court case, ewish Home for the Elderly of Fairfield County, Inc. v. Cantore, 257 Conn. 531, 778 A.2d 93 (2001), for the proposition that a nursing home has the right to bring an action against a conservator for the breach of his duties when he does not use the resident’s assets to pay for the care and CT Page 13163 services rendered by the nursing home and does not apply for medicaid assistance when the assets of the ward are exhausted and that such a failure by the conservator constitutes a breach of his fiduciary duties. In response, the defendant counters that genuine issues of fact remain as to whether she, as conservator, has performed the fiduciary duties she was bound to perform and executed them in a timely manner. She further asserts that “the plaintiff has not established as a matter of law that it has standing to bring this action in its own right for the alleged breach of fiduciary duties owed only to the [w]ard, in the absence of a probate bond.”

“A conservator is a fiduciary . . .” Marcus’ Appeal from Probate v. Dept., 199 Conn. 524, 533, 509 A.2d 1 (1986). “[A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other.” (Internal quotation marks omitted.) Murphy v. Wakelee, 247 Conn. 396, 400, 721 A.2d 1181 (1998). “A conservator [however] 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 . . . [which] is under an `affirmative duty’ to protect the assets of an incompetent’s estate . . . The 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 . . . Under our law, it is clear that the conservator acts under the supervision and control of the Probate Court in the care and management of the ward’s estate.” (Internal quotation marks omitted.)Id., 406-07.

“The statutory duties of a conservator are clearly defined in General Statutes § 45a-655, which delineates the duties of a conservator of the estate, and General Statutes § 45a-656, which prescribes the duties of a conservator of the person. A conservator of the estate `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 . . .’ General Statutes § 45a-655(a). A conservator of the person has `the duty to provide for the care, comfort and maintenance of the ward’; General Statutes § 45a-656(a)(4); and that duty `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.’ General Statutes §45a-656(a). In addition, `[w]here a statute imposes a duty and is silent as to when it is to be performed, a reasonable time is implied.’ Hartley v. Vitiello, 113 Conn. 74, 79-80, 154 A. 255 (1931); Ely v. Bugbee, CT Page 13164 90 Conn. 584, 587-88, 98 A. 121 (1916).” (Internal quotation marks omitted.) Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, supra, 257 Conn. 539-40.

The duties of a conservator of the estate and of the person “governing payment of debts contains no . . . explicit language requiring prior approval [by the Probate Court] . . . Indeed, subsection (d) of [45a-655] . . . specifically directs that: `In the case of any person receiving public assistance, state-administered general assistance or Medicaid, the conservator of the estate shall apply toward the cost of care of such person any assets exceeding limits on assets set by statute or regulation adopted by the Commissioner of Social Services.’ General Statutes §45a-655(d). Although some probate court review of these expenditures is undoubtedly important in these situations to safeguard the financial welfare of the estate, the estate obtains this protection from the general requirement that the conservator provide the probate court with a periodic accounting. See General Statutes § 45a-177.” Volo v. Connecticut Dept. of Social Services, Superior Court, judicial district of New Britain, Docket No. CV 00 0505485 (February 14, 2002, Schuman, J.) (31 Conn. L. Rptr. 411, 412). “Thus, a review of the statutory scheme establishes that a conservator is authorized to pay ordinary debts of the estate without prior probate court approval as long as he complies with the requirement to provide a periodic inventory.” Moore v. Commissioner, Dept of Social Services, Superior Court, judicial district of New Britain, Docket No. CV 98 0492655 (December 9, 1999, Hartmere, J.).

In the present case the defendant has raised genuine issues of material fact as to the reasonableness and timeliness of her conduct as conservator. In the defendant’s affidavit, she attests to the duties she performed as conservator including inventorying her mother’s estate, liquidating the assets of the estate to pay the costs of her mother’s care at the plaintiff’s facility and completing the medicaid application, determining which assets were nonexempt or exempt in order to qualify for medicaid assistance, determining whether she was permitted to set aside some assets for a funeral contract on behalf of her mother and doing all of her various duties in a reasonably timely fashion. The defendant’s affidavit raises genuine issues of material fact as to the reasonableness of her conduct that cannot be adjudicated by a motion for summary judgment.

In addition to challenging this motion for summary judgment on the merits the plaintiff questions the standing of the plaintiff and the subject matter jurisdiction of this court. The plaintiff’s standing to bring this lawsuit was first raised by the defendant in her memorandum of law in opposition to the plaintiff’s motion. The defendant argues CT Page 13165 that the plaintiff’s reliance on the case of Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore is misplaced because in Jewish Home there was a probate bond and in this case there is no probate bond. In Jewish Home the healthcare facility brought a statutory action to recover on a probate bond pursuant to General Statutes § 45a-144[2]
based on the conservator’s failure to use the assets of his ward’s estate to make timely payments to the plaintiff nursing home and to make a timely application for public assistance pursuant to the medicaid program to ensure payment for the care and services that the ward received from the nursing home once the assets of the estate had been exhausted. The court held that the healthcare facility was authorized by the statute to bring its action on the probate bond as “a plaintiff suing in its own right to recover in its own name for the breach of a probate bond.” Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, supra, 257 Conn. 543-44. The defendant argues since the Probate Court dispensed with the requirement of having the defendant file a probate bond, [3] there is no statutory basis for a suit against the conservator.

In Olympus Healthcare Group, Inc. v. Muller, 88 Conn.App. 296, 870 A.2d 1091 (2005), the court discussed the issues of whether a conservator “can never be held personally liable,” and whether such a theoretical defense deprived the court of subject matter jurisdiction. Olympus Healthcare sought to recover payment for healthcare services provided to the ward against the defendant individually and the defendant in his capacity as conservator of the estate and person of his ward, his father. Id., 297. After the court rendered a default judgment against the conservator because of his failure to plead, the plaintiff recorded a judgment lien against him from which the conservator never appealed or contested the enforceability of the judgment against him until three years later when the plaintiff initiated an action to foreclose on the judgment lien. Id., 298. Subsequently, the defendant filed a new motion to open the default judgment on the ground that the court had lacked subject matter jurisdiction to render a judgment against a conservator Id. From the denial of the defendant’s motion, he filed an appeal. Id., 298-99. The court stated that immunity of a conservator does not deprive a court of general jurisdiction of its jurisdiction if it has competence to entertain the action before it. Id., 300. The court succinctly stated that while “our law sometimes affords some potential defendants the privilege of immunity from liability, we know of no case that holds that the existence of such a privilege deprives a court of subject matter jurisdiction.” Id., 301. “We need not decide, therefore, whether an agreement signed by the conservator rather than by the Probate Court confers immunity on a conservator.

CT Page 13166 This court is persuaded that it has subject matter jurisdiction is this dispute. It may be that the defendant’s status as a conservator may provide some ground for defense to the plaintiff’s claims. The merits of that issue must be raised directly by the defendant. Both Olympus an Jewish Home leave unresolved the issues of whether a conservator who stands in the shoes of her ward is immune from personal liability predicated upon her conduct as conservator and whether a nursing home can bring a cause of action against the conservator for a ward’s debt, absent a probate bond.

For these reasons, the plaintiff’s motion for summary judgment is denied.

[1] In the decree appointing the defendant “conservator of the person and the estate of the [ward] . . . the court [dispensed] with the requirement of a probate bond.”
[2] Section 45a-144(a) provides: “(a) Any person claiming to be aggrieved by the breach of a probate bond, as representative of the estate in connection with which the bond was given, or in his own right or in the right of himself and all others having an interest in the estate, may bring an action in the Superior Court or may apply to the court of probate in which the bond was given to recover for the breach in his own name.”
[3] Pursuant to General Statutes § 45a-650, a probate bond is required whenever the Probate Court appoints a conservator of the estate. In addition, “[t]he court may, if it considers it necessary for the protection of the respondent, require a bond of any conservator of the person appointed under [the] [procedures for the Probate Courts].” General Statutes § 45a-650(i). When a small estate is involved a probate judge may waive the requirement of a bond.

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