Attorney General: John R. Shears, State Teachers' Retirement Board, 1992-002 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

January 24, 1992

John R. Shears
Administrator
State Teachers' Retirement Board
165 Capitol Avenue
Hartford, CT 06106

Dear Mr. Shears:

In your letter dated September 12, 1991, you asked us whether the conservator of the estate of a disabled child of a deceased member of the State Teachers' Retirement System is eligible for monthly benefits as a legal guardian under Conn.Gen.Stat. 10-183h(a). We conclude that the term "legal guardian" as used in Conn.Gen.Stat. 10-183h(a) does not include the conservator of the estate of a disabled child, and therefore such a conservator is not eligible for monthly benefits.

Your letter of request, enclosed materials and transcripts of hearing on petition for declaratory ruling indicate the following facts: Cosmo S. Sansone, a member of the State Teachers' Retirement System, died on January 23, 1988. Mr. Sansone left a disabled daughter, Jennifer Sansone, who was 20 years old at that time. Jennifer is autistic and mentally impaired and is currently living in a group home in Putnam. Since her father's death Jennifer has been receiving survivors' benefits under Conn.Gen.Stat. 10-183h(a)(2) as a dependent child.

On November 13, 1990, Jennifer's brother, Andrew J. Sansone, became the conservator of Jennifer's estate. In a letter dated April 8, 1991, Andrew J. Sansone requested monthly payments of $300.00 under Conn.Gen.Stat.  10-183h(a) as legal guardian of Jennifer Sansone. Mr. Sansone claims that he is the legal guardian of his sister, and has been performing all guardianship duties for her. In a letter dated April 22, 1991, Mr. Sansone lists some of the responsibilities he has assumed for his sister: 1) full responsibility for all of Jennifer's finances; 2) constant contact with various agencies involved in Jennifer's welfare; 3) consent for medical treatment and full involvement in Jennifer's therapy; 4) frequent consultations with Day Kimball Psychology Program; 5) frequent visits by Jennifer to Andrew's home, in Massachusetts, plus frequent visits with Jennifer at her residence; 6) shopping for all of Jennifer's needs; and 7) full-time advocate for Jennifer's treatment and development.

On May 3, 1991 the State Teachers' Retirement Board denied Mr. Sansone's request for benefits, finding that he was ineligible under Conn.Gen.Stat. 10-183h(a). Mr. Sansone then requested a declaratory ruling on the matter of entitlement to survivor's benefits, claiming he is the legal guardian of Jennifer Sansone. Mr. Sansone's argument is that since the term "legal guardian" as used in Conn.Gen.Stat. 10-183h(a) is not defined therein or in any other Connecticut statute, it should be afforded its ordinary, common usage, which would include someone acting as conservator. We do not agree with Mr. Sansone's argument.

The statute under which the petitioner is claiming survivor benefits is Conn.Gen.Stat. 10-183h(a), which in relevant part provides:

The basic survivor's monthly benefit, subject to a family maximum of six hundred dollars, shall be (1) three hundred dollars each for a surviving spouse; for a dependent former spouse; for a dependent parent if there is no surviving spouse or dependent child; and for a legal guardian of any dependent child if there is no surviving spouse, dependent former spouse or dependent parent, .... (emphasis added).

Conn.Gen.Stat. 10-183b(6) defines the term dependent child, as used in the Teachers' Retirement Act, of which Conn.Gen.Stat. 10-183h is a part, as follows:

A child is a "dependent child" of a deceased member if at the time of the member's death (A) the member was living with the child or providing or obligated to provide, by agreement or court order, a reasonable portion of the support of the child and (B) the child (i) is unmarried and has not attained age eighteen or (ii) is disabled and such disability began prior to the child attaining age eighteen.

Conn.Gen.Stat. 10-183b(6). Based on the facts provided Jennifer is a dependent child within the meaning of Conn.Gen.Stat. 10-183h(a).

The issue, therefore, becomes; is Andrew Sansone the legal guardian of Jennifer? The Teacher's Retirement Act does not provide a definition of legal guardian. There is also no definition of the term "legal guardian" in the legislative history of Conn.Gen.Stat. 10-183h(a). See 24 Conn.Sen.Proc., pt 12, 1981 Sess. 3909-3911 (May 19, 1981) and 24 Conn.H.R.Proc., pt 13, 1981 Sess. 4275-4279 (May 6, 1981). Although there is no definition of legal guardian in the Teachers' Retirement Act, other Connecticut statutes provide specific definitions of that term.1 These provisions should be looked to in interpreting Conn.Gen.Stat.  10-183h(a): "statutes relating to the same subject matter may be looked to for guidance in reaching an understanding of the meaning of a statutory term." Doe v. Institute for Living, Inc., 175 Conn. 49, 58, 392 A.2d 491 (1978).

The probate court section of the Connecticut General Statutes dealing with protected persons and their property, Title 45a, Chapter 802H, defines the term "guardian" and provides for the appointment of guardians by the probate court. Under Chapter 802h, guardianships exist for minors and mentally retarded persons only. Conn.Gen.Stat. 45a-606 provides: "The father and mother of every minor child are joint guardians of the person of the minor ... If either father or mother dies or is removed as guardian, the other parent of the minor child shall become the sole guardian of the person of the minor." In the case of the death of both parents a guardian is appointed to a minor either by will; Conn.Gen.Stat. 45a-596; or by the probate court. Conn.Gen.Stat. 45a-616. A minor is defined as a person under the age of eighteen. Conn.Gen.Stat. 45a-604(4). Jennifer is not a minor.

Under Conn.Gen.Stat. 45a-676 the probate court also appoints guardians for mentally retarded persons. Mr. Sansone's attorney stated at the hearing for petition of declaratory ruling that Jennifer has not been found to be mentally retarded.

Since Jennifer is not mentally retarded and is not a minor, the probate court cannot appoint a guardian under Conn.Gen.Stat. 45a-676. Mr. Sansone is, therefore, not a guardian as that term is defined by Conn.Gen.Stat. 45a-606, 45a-616 and 45a-676. He is not the father or mother of Jennifer. Jennifer was not a minor when her father died, so he could not have been appointed guardian under Conn.Gen.Stat. 45a-616. Jennifer has been found to be autistic and mentally impaired, but not mentally retarded, so he could not have been appointed guardian under Conn.Gen.Stat. 45a-676. We therefore conclude that Mr. Sansone is not a guardian as that term is used in Conn.Gen.Stat. 10-183h(a).

We also reject Mr. Sansone's argument that his appointment as conservator of Jennifer's estate combined with the other responsibilities he has voluntarily assumed, make him a guardian. A conservator of an estate is defined as "a person, ... appointed by the court of probate under the provisions of sections 45a-644 to 45a-662, inclusive, to supervise the financial affairs of a person found to be incapable of managing his or her own affairs...." Conn.Gen.Stat. 45a-644(a) (emphasis added).

The statutorily prescribed functions of a guardian of a person differ from the prescribed functions of a conservator of an estate. Guardianship for the person of a minor includes; "(A) [t]he obligation of care and control; and (B) the authority to make major decisions affecting the minor's welfare, including but not limited to, consent determinations regarding marriage, enlistment in the armed forces and major medical, psychiatric or surgical treatment." Conn.Gen.Stat.  45a-604(5). Guardianship for the person of a mentally retarded person is broken down into two categories, plenary guardian and limited guardian. Conn.Gen.Stat. 45a-669. A plenary guardian of a mentally retarded person is appointed by the probate court to supervise all aspects of the care of an adult person who by reason of the severity of his mental retardation has been determined to be totally unable to care for himself. Conn.Gen.Stat. 45a-669(a). A limited guardian of a mentally retarded person is appointed by the probate court to supervise certain specified aspects of the care of an adult person. Conn.Gen.Stat. 45a-669(c). Guardianships of the person involve care and control of the individual, while conservator of the estate is limited to supervising the financial affairs of the persons.

The distinct differences in responsibilities between a person appointed as guardian of the person and person appointed as conservator of the estate indicate that the term "legal guardian" as used in Conn.Gen.Stat. 10-183h(a) is not meant to include a conservator of an estate. The fact that Mr. Sansone takes on additional responsibilities in the care of his sister does not alter the nature of his appointment as made by the probate court. Conn.Gen.Stat. 10-183h(a) refers specifically to "legal guardian." Since Mr. Sansone was never appointed as the guardian of Jennifer Sansone he is not a "legal guardian" as used in Conn.Gen.Stat.  10-183(h) and he is not entitled to basic survivor monthly benefits.

Very truly yours,

Richard Blumenthal
Attorney General

Maria C. Rodriguez
Assistant Attorney General

September 12, 1991

Honorable Richard Blumenthal, Attorney General
Office of the Attorney General
Department 6--Fifth Floor 55 Elm Street
Hartford, Connecticut 06106

Dear Attorney General Blumenthal:

The State Teachers' Retirement Board has received a petition for declaratory ruling and at its September 11, 1991 regular meeting has heard the arguments of the petitioner that he is entitled to monthly survivorship benefits under the provisions of the Teachers' Retirement Act by virtue of his having been appointed conservator of the estate of the disabled child of a deceased member of the System and has performed many of the duties of a guardian.

The request for ruling by the board is prompted by my administrative decision that (a.) the petitioner does not have the required custody of the child which is presumed by the legislative history, related survivor requirements, and by the statutory definition of guardian, and (b.) the legislature by providing for benefits to the guardian of the child excluded persons not holding that specific package of duties and responsibilities.

Copies of the petition and related materials are enclosed. The Board seeks your opinion on the eligibility of the petitioner in light of his arguments that (a.) custody of the child is not a requirement for eligibility for benefits as legal guardian of a child, and (b.) appointment as conservator of the estate of the child, together with evidence of the performance of duties usually performed by a guardian, is sufficient to establish eligibility for monthly benefits as legal guardian.

Your assistance in this matter is very much appreciated.

Very truly yours,

John R. Shears
Administrator


1 Mr. Sansone is also not a guardian at common law since guardianship at common law only applies to minor children. See Kline v. Beebe, 6 Conn. 494, 500 (1827).


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