"Guardianship for Persons with Mental Retardation"
a P&A Self-Help Publication

WHAT IS A LEGAL GUARDIANSHIP?

A legal guardianship for a person with mental retardation involves a Probate Court’s decision that an adult person with mental retardation requires a substitute decision maker for decisions about certain essential areas of the person’s life. If a legal guardian is appointed by the Probate Court, then that person is authorized to provide consent on behalf of an individual with mental retardation in specified areas of the individual’s life. This may include obtaining medical care, protecting the individual’s rights and other duties specified by applicable state statutes and the Probate Court decree.

HOW DOES THE PROBATE COURT DECIDE WHETHER A PERSON WITH MENTAL RETARDATION REQUIRES A LEGAL GUARDIAN?

The Probate Court must receive an application to appoint a legal guardian as the initial step in these judicial proceedings. An application may be filed by any interested person. The application must allege that a person with mental retardation (the respondent) needs the protection and assistance of a legal guardian because the individual is unable to make informed decisions concerning his or her welfare, and the individual is unable to meet the essential requirements for his or her own physical health and safety.

Once a completed application is received, the Probate Court will provide notice of a hearing on the application to the respondent. An assessment team from the Department of Mental Retardation will be asked to evaluate the respondent’s need for a legal guardian.

The respondent has a right to counsel in these proceedings and is entitled to Court appointed counsel if he or she cannot afford the services of an attorney. The respondent has the right to fully participate in the Probate Court proceedings, including the right to be physically present, the right to examine all documents on file with the Probate Court which are related to the application and the right to cross examine all witnesses. The respondent’s attorney can assist him or her with the preparation and presentation of his or her case.

If the Probate Court finds by clear and convincing evidence, that the respondent requires either a plenary or limited legal guardian, then a decree will be issued which specifies the duties of the legal guardian, contains findings of fact and the reasons that the Probate Court appointed a plenary or limited legal guardian. The person with mental retardation who is the subject of the Probate Court decree is considered a "ward". If the respondent or ward disagrees with the Probate Court’s decision, then an immediate appeal to the Superior Court must be filed.

ARE THERE DIFFERENT TYPES OF LEGAL GUARDIANSHIPS FOR A PERSON WITH MENTAL RETARDATION?

Yes. In Connecticut, there are three types of legal guardianships which are available for a person with mental retardation:

1. A full or plenary legal guardian has the duty to assure the care and comfort of the ward within the limitations of their appointment, and the public or private resources available to a ward. The legal guardian may exercise all eight (8) statutory duties on behalf of a ward, in order to assist the ward in achieving self reliance. The plenary legal guardian has no other legal authority beyond the duties specified in the Probate Court decree and state statutes. C.G.S. §45a-669(a)
2. A limited legal guardian has similar but fewer responsibilities when compared to a plenary legal guardian. The limited legal guardian may exercise only those statutory duties which are specified in the Probate Court decree. If, for example, the Probate Court provides the limited guardian with authority to consent to medical and dental care only, then the limited guardian is not authorized to consent to a place of residence or other treatment. C.G.S. §45a-669(c)
3. A temporary legal guardian may be appointed by the Probate Court for a period of time not to exceed sixty (60) days to provide substitute consent for specific medical and dental treatment. This will generally occur when the person with mental retardation does not have a plenary nor limited legal guardian and there is a belief by a doctor or hospital that the individual with mental retardation is unable to provide informed consent for the specific treatment.

WHO MAY SERVE AS A LEGAL GUARDIAN?

Generally, any person who is found to be suitable by the Probate Court may be appointed as a legal guardian. In certain instances, a non-stock corporation may be selected in lieu of a natural person. There is no requirement that the person filing the application must serve as the legal guardian.

The Probate Court must consider the best interests of the respondent before selecting a specific legal guardian. In addition, the Probate Court must give due consideration to the respondent’s preference for the selection of a particular person, if that preference is known. Often the legal guardian selected by the Probate Court is someone who knows the respondent and the respondent’s needs. This could be an immediate family member, relative, neighbor, friend or in certain limited circumstances an employee of the Department of Mental Retardation.

WHAT ARE THE DUTIES OF A LEGAL GUARDIAN?

A plenary legal guardian will be assigned all of the following duties and responsibilities, whereas, a limited legal guardian is assigned one or more, but less than eight (8), in order to assist the ward in achieving self reliance:

1. to assure and consent to a place of residence within a facility operated or licensed by the Department of Mental Retardation;
2. to assure and consent to a place of residence which is privately operated;
3. to consent to habilitative and education programs;
4. to consent to the release of clinical records and photographs of the ward;
5. to consent to behavioral intervention programs;
6. to assure and consent to routine medical and dental care;
7. to assure and consent to elective or emergency medical and dental care;
8. to assure and consent to services necessary to develop or regain the ward’s capacity to meet essential requirements for physical health and safety. C.G.S. §45a-677.

ARE THERE ANY LIMITS ON THE LEGAL GUARDIAN’S AUTHORITY TO PROVIDE CONSENT?

Yes. The legal guardian, whether plenary or limited, is only authorized to provide substitute consent on behalf of an individual with mental retardation, consistent with the Probate Court decree and state statutes. State statutes prohibit plenary or limited legal guardians from providing consent on behalf of a ward for:

• the involuntary or voluntary admission to a DMR or DMHAS facility;
• any sterilization procedure;
• any experimental behavioral medical procedure or psychosurgery;
• the termination of parental rights;
• the removal of any body organ or an abortion. C.G.S. §45a-677(e).

The legal guardian is not authorized to admit the ward to any residential facility where the legal guardian is employed. Any decision regarding a Do Not Resuscitate (DNR) order is generally beyond the scope of a legal guardian’s legal authority since DNR orders are not considered routine medical treatment. Further, a legal guardian might be contacted when the ward is permanently unconscious or in the final stage of a terminal condition. In such circumstances, if the ward is a DMR client, DMR must make a determination that the statutory procedures in Section 17a-238(g) of the General Statutes have been followed as a condition precedent to a valid DNR order.

DO ALL PERSONS WITH MENTAL RETARDATION NEED A LEGAL GUARDIANSHIP?

No! State statutes create a presumption that all persons over age eighteen (18) are legally capable and competent to manage their own personal and financial affairs. This presumption may be rebutted only when there is competent evidence presented to the Probate Court by an applicant which establishes that a person with mental retardation may be unable to provide informed consent related to his or her care and may be unable to meet essential requirements for their physical health and safety.

WHAT HAPPENS AFTER A LEGAL GUARDIAN HAS BEEN APPOINTED FOR A PERSON WITH MENTAL RETARDATION?

Once appointed, a legal guardian is required to act in the best interest of the ward in performing his or her duties and responsibilities. The Probate Court is required to periodically review the need for a legal guardian. This must occur every three (3) years, at a minimum, or sooner if there is a need to review the status of the legal guardianship.

If there has been a change in the condition or ability of the ward, the Probate Court is required to give the ward notice of the guardianship review hearing. The ward is entitled to have counsel and if indigent, the Probate Court will appoint an attorney to provide legal representation. At the review hearing, the Probate Court may receive evidence on whether the original legal guardianship decree should be maintained, modified or terminated.

The legal guardian is required to file a report each year with the Probate Court on the condition of the ward, the services provided by the legal guardian, the problems encountered by the legal guardian and whether the legal guardian believes that the original Probate Court decree should be maintained, modified or terminated. C.G.S. §45a-677.

If the ward moves from the Probate Court district which issued the original decree to another Probate Court district, the legal guardian or any other appropriate person may request a transfer of the Probate Court’s file from the old district to the new district. If the transfer occurs, then the filing of annual reports and periodic review of the legal guardianship will take place in the new district.

The Probate Court is required to review the status of the legal guardianship every three (3) years or sooner upon request. The Probate Court will decide whether to continue, modify or terminate the legal guardianship based upon the evidence presented.

CAN A GUARDIAN BE REMOVED?

Yes. The Probate Court can order the removal or replacement of a plenary or limited guardian if the court determines that such a guardian is no longer needed or if the removal is in the best interests of the person with mental retardation. Any adult person can file an application for the removal of a plenary or limited guardian in the court which appointed the guardian originally.

RESOURCE LIST

Probate Court: Each town has its own Probate Court or the town is part of a larger Probate Court district. Often the court has pamphlets available on the legal proceedings which are within the jurisdiction of the Probate Court. The Probate Court Clerk’s Office should be contacted to obtain any necessary forms. You should consult the Blue Pages of the telephone directory for the address and telephone number of the local Probate Court.

Lawyer Referral Service: Each local or regional Bar Association has a lawyer referral service which can provide a referral to a private attorney who specializes in Probate Court proceedings. You should consult the attorney listings in the telephone directory, Yellow Pages, for the telephone numbers of this service.

Legal Aid: There are legal aid organizations in Connecticut which provide legal advice and representation in certain cases for individuals who meet their eligibility criteria. The legal aid organization may be able to provide a referral to a pro bono (free) attorney.