March 23, 2012 / Rick Green
The state Supreme Court stood up Friday for a simple right that matters deeply for all, but especially to the old, sick and disabled.
The job of a lawyer appointed by probate court is to fight for the client, whether he is healthy or a stubborn 86-year-old man.
In a unanimous ruling in the long-running civil rights case of Daniel Gross, the justices ruled that court-appointed lawyers do not have immunity from lawsuits if they abuse their clients. The court also ruled, in a divided opinion, that conservators appointed by probate have limited immunity. The justices also ruled that a nursing home does not have immunity from lawsuits in probate cases.
The ruling has far-reaching implications for our troubled probate court system. It means that a court-appointed lawyer, and to a lesser extent the conservator --- who is appointed by probate when a person can no longer live independently --- cannot ignore the wishes of a client. The message to probate court is clear: Lawyers and conservators must be held accountable.
For probate courts, this has huge implications because many of the unsettling and outrageous cases I have been writing about for the past six years stem from abuse by conservators and court-appointed lawyers and judges who don't pay enough attention.
Although Gross died in 2007, his civil rights case lived on. The lasting lesson is that the old or disabled --- even if they are unwell and cranky --- have the same rights as the rest of us.
"It means that if you get a court-appointed lawyer, that lawyer cannot have any doubt that the lawyer's job is to listen to you,'' said Sally Zanger, the Connecticut Legal Rights Project lawyer who represented Carolyn Dee King, Gross' daughter. "It's what the lawyer is supposed to be doing."
Amazingly, that's been the problem in the probate cases I've been telling you about since 2006. Gross' was the first and most heartbreaking case I stumbled upon, when a Legal Aid lawyer told me an unbelievable tale of an old man from Long Island being held against his will in a Waterbury nursing home.
Elderly but still independent, Gross became ill while visiting his daughter in Waterbury. He was hospitalized, and while his children fought over his care and who should control his finances, Waterbury Probate Judge Thomas Brunnock approved his involuntary conservatorship.
Gross wanted to go home to Long Island. He wasn't told of the hearing where he was ordered conserved. His court-appointed lawyer, Jonathan Newman, failed to object to the conservatorship, even though Gross just wanted to leave Connecticut. His conservator, Kathleen Donovan, had him placed in a locked, restricted ward at Grove Manor Nursing Home in Waterbury. His roommate was violent.
Later, when Gross was on a day visit to his Long Island home, he was hospitalized. Donovan brought him back to Connecticut in an ambulance against the wishes of Gross' New York doctor.
In June 2006, Superior Court Judge Joseph Gormley, at a dramatic writ of habeas corpus hearing, ordered Gross freed, declaring that "a terrible miscarriage of justice" had taken place and that the man had been "deprived of his liberty."
King, Gross' daughter, filed a federal civil rights lawsuit against Brunnock, Donovan, Newman and the nursing home. Brunnock, as a judge, could not be sued, but the U.S. 2nd Circuit Court of Appeals sent the question of immunity for the others back to the state Supreme Court for a ruling. King's lawsuit against Donovan, Newman and the nursing will now go back to federal court.
Newman's lawyer --- who argued to the Supreme Court that his client's role was like that of a lawyer for a child --- did not respond to my call. A lawyer for Donovan, Richard A. Roberts, said the ruling might mean that conservators and court-appointed lawyers will be forced to go to a judge for every decision they make.
But Fairfield Probate Judge Daniel Caruso, president of the association of probate judges, said that his colleagues will welcome the ruling.
"When the Supreme Court articulates and provides brighter lines as to what is and is not within the bounds of immunity, it helps everyone,"he said.
Public-interest lawyers hailed the decision because it provides new accountability to a court system that critics say still lacks oversight.
"Our legal system has safeguards. Even when you are appointed by the court you are accountable for what you do,'' Tom Behrendt of the Connecticut Legal Rights Project told me.
When I reached King, she reminded me of her father's humiliation before a court that was supposed to protect him.
"He was robbed of his humanity at the end of his life,'' King said. "He was used as a pawn. They just ignored him."
We can't change that, but the elderly man's lasting legacy is a powerful one. If you are old or disabled, probate court is a less-frightening place thanks to Daniel Gross.