TORRINGTON—Probate court rulings and administrative practices vary widely in Connecticut, which has a sordid history of failing to oversee commitments of elderly citizens to nursing homes.
The horror stories are legion: Tales of officials draining the estates of those they are charged with protecting, and friends and neighbors disappearing into the bowels of a secretive system with little, if any oversight. One significant case of unlawful imprisonment culminated with a state Supreme Court ruling this year, stripping layers of immunity from lawyers appointed by probate courts, and from conservators and nursing homes. Aggrieved family members can now sue those officials and nursing homes if they ignore the wishes of the clients they are charged with serving.
Daniel Gross had been held against his will in a Waterbury nursing home, the victim of collusion among a court-appointed lawyer, a conservator and a probate judge. He was freed after a year by superior court Judge Joseph Gormley, who called the case “a terrible miscarriage of justice.” Mr. Gross died in 2007, but a civil rights lawsuit filed by his daughter resulted in the high court ruling five years later.
The operations of probate courts still lack consistency, according to several elder care lawyers interviewed by The Litchfield County Times. Two of the lawyers who practice in the probate courts requested anonymity for fear of retribution. They had been asked to review court records and other documents related to the case of Eli Schutts, Ph.D., a retired philosophy professor at Western Connecticut State University in Danbury who is now at the Litchfield Woods nursing home in Torrington, based on a probate court ruling.
Mr. Schutts, 86, had complained about his placement at another nursing home in Kent, according to court records. As his health deteriorated, he was transferred to New Milford Hospital and then Litchfield Woods.
Wednesday afternoon at Litchfield Woods, Mr. Schutts reminisced about a boxing exhibtion he saw many years ago and his colleagues at WestConn. His expressions were linear in thought and coherent. Coughing and breathing with difficulty, he was assisted with an oxygen feed. An aide checked to see if he was due for a breathing treatment.
“I’m trying to get out of here,” Mr. Schutts said. “I’m trying to build up my leg so I can go.”
He described the boxer he saw in New York, Ezzard Charles, as “a pretty clean fighter.”
While able to converse at leisure for about half an hour, Mr. Schutts repeatedly struggled to breathe and hear his visitor.
Mr. Schutts’ fate seems to be uncertain. The Litchfield Hills Probate Court had appointed a temporary conservator for him, but that order expired Aug. 12. Another probate hearing has been scheduled for Aug. 27 at 9:30 a.m. at Litchfield Woods, and it will be open to the public. The former temporary conservator is expected to seek permanent appointment.
Deborah Logue, a lay minister at Christ Episcopal Church in Bethlehem who has visited Mr. Schutts and followed the case closely, said she was deeply concerned about his well-being.
“Think, if this was one of your parents—or you—and someone was toying with your existence—locked up and possibly over-drugged,”Ms. Logue said. “Something is not right.”
Ms. Logue had notarized a durable power of attorney on behalf of Mr. Schutts for his longtime girlfriend and former colleague at WestConn, Edith Johnson of Bethlehem. The power of attorney, however, was not recognized by the Litchfield Hills Probate Court. Judge Diane Blick questioned whether Mr. Schutts knew what he was signing.
“I sat with Eli for one hour and asked him, repeatedly: ‘Do you want to get out of this place and give Edith power of attorney?’ ” Ms. Logue said. “His answer, repeatedly, was ‘Yes.’ ”
Asserting that Ms. Johnson and Mr. Schutts have a viable relationship, Ms. Logue said she has known Ms. Johnson for 35 years. “Six months ago,” Ms. Logue said, “Eli was ambulatory and able to go to dinner and the movies with Edith. Someone needs to advocate properly for Eli. This is not done by pulling a conservator out of who knows where.”
Had the court recognized the power of attorney, it would not have been able to appoint a conservator.
“If she has durable power of attorney, they cannot appoint a conservator absent a finding that she did something improper,” said attorney Marilyn Denny, an elder care lawyer for Greater Hartford Legal Aid. “Why is he still in a nursing home? He should be able to go home, assuming that he can be discharged.”
Or, as another elder care lawyer put it: “If there was no conservator, he could have just walked out and given them the finger. It’s an assault to keep someone there against their will.”
Conservators are appointed when a person is unable to live independently. Generally, the fiduciary duty of conservators compels them to act in the best interests of the protected person. They cannot benefit at the expense of the protected person. They must submit an inventory of assets balanced with an accounting of bills paid. The court must approve fees.
Connecticut has no training for conservators, according to a probate court official. The probate courts themselves provide the only oversight. Still, many actions of conservators are never reviewed by probate courts in Connecticut, according to the National Disability Rights Network.
Ms. Johnson claimed the former temporary conservator, Lorraine Seely, threatened her with retaliation if she complained to the press about Mr. Schutts’ treatment. Ms. Johnson said Ms. Seely told her: “If this gets in the paper, I’ll make sure you never see him again.” Ms. Seely denied that in a statement faxed to The Litchfield County Times, questioning Ms. Johnson’s intentions and credibility. In a voicemail Wednesday, Ms. Seely also urged the County Times to investigate Ms. Johnson’s background.
The Litchfield Hills Probate Court informed parties in the case, including Mr. Schutts’ son and daughter—who live abroad—of the alleged threat, but did not investigate it or take any action. “The Court … leaves it to the parties of interest to take any action deemed necessary,” the Litchfield Hills court said.
A Litchfield Hills Probate Court official said notice of the alleged threat was not forwarded to the Torrington Area District Court. On Tuesday, the County Times reached out to ask Torrington Probate Judge Michael Magistrali if he would be conducting an investigation. Mr. Magistrali did not respond to the inquiry or to phone messages left Wednesday at his law office and the probate court. An official at the court did confirm that documents about the alleged threat had been received.
While finding that Mr. Schutts’ condition is such that he needs serious physical, mental and psychosocial care, Judge Blick cited the following testimony from Mr. Schutts: “He is very happy with all that Lorraine Seely has done for him;” and, “He is very happy at Litchfield Woods and finds it most congenial.”
Ms. Johnson has complained repeatedly that Mr. Schutts has been medicated improperly. She said Tuesday that she was able to persuade a physician to re-evaluate use of a drug she claimed was causing him to hallucinate. In addition, several sets of his hearing aids appear to be missing, Ms. Johnson said.
“Lorraine Seely said she would see that I had a list of Dr. Schutts’ drugs being given at Litchfield Woods,” Ms. Johnson said. “Instead, she flashed it before me, yanked it and ran.”
Meanwhile, Ms. Johnson also complained that an ongoing credit card balance of Mr. Schutts’ was among bills that had not been paid recently. She also produced financial records showing substantial withdrawals from an account held by Mr. Schutts. Prior to his confinement, Ms. Johnson said, she paid Mr. Schutts’ bills and improved his credit rating.
“The conservator should be paying down his bills,” an elder care lawyer said. “Ms. Johnson can request an accounting.”
In the voicemail left by Ms. Seely Wednesday morning, the former temporary conservator said she hoped the Fax she had sent “would pretty much cover my thoughts and where I’m at with this.”
“The only thing I can tell you,” Ms. Seely said, “is that Dr. Schutts is getting excellent care at Litchfield Woods and his health continues to improve.”
However, Wednesday afternoon Ms. Seely called to say: “I am disturbed by what she [Ms. Johnson] is saying. I won’t allow it to happen any more. This person has a long list of problems.” Ms. Seely would not elaborate.
At the conclusion of the call, Ms. Seely said someone had developed a statement, allegedly by Mr. Schutts, that addressed concerns about Ms. Johnson. She said a social worker could produce the statement. A Litchfield Woods staff member said Wednesday afternoon that she would forward a message to the social worker.
As for Ms. Johnson’s background, the County Times obtained a State Police report in which Ms. Johnson stated she was trying to alert doctors at Sharon Hospital to what she asserted was an unnecessary procedure opposed by Mr. Schutts. State Police asked her to leave the hospital and she complied in a quiet manner.
The Rev. Jim Speer, the priest in charge of the Episcopal Diocese of Connecticut, said of Ms. Johnson: “She is a very honorable person.”
“She’s a very spiritual person,” Reverend Speer said. “She’s very dedicated to Eli and concerned that he not be cheated, that he doesn’t get medications he doesn’t need.”
Probate Court: Where Some Elderly Citizens Disappear; the Case of Former WestConn Professor Eli Schutts (Second in a Series)
Andy Thibault/Jack Corragio
August 15, 2012
Litchfield County Times