Daniel Gross v. Probate: The fight continues.
Rick Green
November 4, 2009
Hartford Courant
http://blogs.courant.com/rick_green/2009/11/guardianship-abuse-daniel-gross-probate-court-connecticut-reform.html
From the grave, Daniel Gross is still shaking up Connecticut’s probate court system.

Gross, readers of my newspaper columns will recall, was the elderly Long Island man imprisoned in a Waterbury nursing home by a probate court judge for 10 months beginning in 2005, after falling ill while visiting his daughter.

After an outraged superior court judge freed Gross in 2006, he eventually returned to his New York home. He died in November of 2008, free.

The Gross case eventually led to changes that spurred the legislature’s decision this year to radically downsize the courts from 117 to 54. Significantly, judges in the future will have to be lawyers who will have to undergo more training and work longer and more regular hours.

Now, a federal appeals court has taken up one of the remaining probate court outrages - conservators who overstep their authority and whether they are immune from lawsuits.

It’s about time.

In Gross’s case, a court-appointed conservator - who was supposed to be looking after his best interests - forcibly kept the elderly man in a nursing home. A court-appointed lawyer disregarded Gross’s wishes to return home to Long Island.

Gross has been dead for two years, but a long-simmering lawsuit by his daughter has resulted in what could be a significant decision by the U.S. Court of Appeals, Second Circuit.

Judges, for obvious reasons, cannot be sued for decisions they make. The Second Circuit, in a ruling released last week, has directed the state Supreme Court to decide whether probate court appointed lawyers and conservators are immune from lawsuits, a question that is “unsettled” under state law.

The Second Circuit judges have asked Connecticut’s top court to “explain the role and function” of both court appointed lawyers and conservators.

Probate judges tell me that these court-appointed “agents” must be immune from lawsuits or else they will never be able to find lawyers willing to take these jobs. I can understand that.

But I also remember a heartbroken old man who wanted to go home but was unable to leave a nursing home because a couple of lawyers thought they knew better.

There are still significant shortcomings in our probate system. Judges, for example, should not be allowed to maintain a private law practice where they interact with the same lawyers who appear before them.

But now there’s a chance for the state Supreme Court to further bring probate into the modern era. They should act before we see another Daniel Gross.