Under the law, you don’t have to hire an attorney, just like you don’t have to hire a plumber to fix your sink or a mason to build a deck. But there are benefits to doing so, and a recent case we handled shows exactly why.
Barry, Barall, Taylor & Levesque, LLC recently won a motion to dismiss based on a petitioner’s lack of standing in the court. A woman (we’ll call her “S”) filed an Application for Restraining Order on behalf of her daughter (we’ll call her “N”) against our client (whom we’ll call “John Doe,” or “JD” for short). N is over the age of 18, and has intellectual disabilities, as does JD. This is why S has been appointed N’s plenary guardian by a Stamford Probate Court.
Attorney Ryan Barry filed a motion to dismiss this application, “asserting that the court lacks jurisdiction over the application.” Our argument was based on the fact that S is only a plenary guardian for N, not a conservator – and as such, had no legal standing to file any legal paperwork for a restraining order on N’s behalf. The court ruled in our favor, and the Application was dismissed.
Why did this case go the way that it did?
This was a particularly interesting case, and we want to discuss how and why the judge ruled in our favor. First, let us look at the difference between a plenary guardian and a conservator.
Guardianship vs. conservatorship in Connecticut
The Connecticut Probate Courts handle issues of guardianship and conservatorship. When a resident turns 18, he or she is considered as legal adult in Connecticut. This means that the person can make his or her own decisions about things like medical care, living situations, jobs, and school. That legal adult is presumed competent unless determined by a court to be incompetent.
If, however, an adult has been found incompetent, he or she may be assigned a guardian or a conservator:
- Under the law, there are three types of guardianships in Connecticut: plenary (full), limited, and standby of person and/or estate. A person may be assigned a guardian if his or her IQ is 69 or lower.
- Plenary guardians have full authority to make decisions regarding residency, education, finances, medical care, and public assistance/benefits, among other things.
- Limited guardians are appointed when a person requires less support. As such, the Court’s order will outline exactly what the guardian can and cannot do.
- Standby guardians are people who take over a guardianship if the parent (or other legal guardian) can no longer do so. For example, if a plenary guardian dies in a car accident, the standby guardian resumes all authority.
- Conservatorship. Conservators have all the rights of guardians and then some. Conservatorships cover everything except what they don’t, meaning that a person under a conservatorship only has rights based on what is excluded from the Order. Conservatorship may be over people or estates (or both), and can include the right to commence litigation. Conservatorships may be voluntary or involuntary, and may be assigned for people with an IQ of 70 or above.
Legal standing to commence litigation
In order to file a petition or an application, one must have standing – the legal right to sue. For example, if you get into a car accident in Hartford with someone from Massachusetts, you will file the claim or lawsuit in Connecticut because that is where the accident happened. You have standing to bring a case in Connecticut.
In our case, S filed the Application on behalf of her daughter, N. But S did not have the legal right to do that, because under her plenary guardianship order, she did not have the right to commence litigation. As such, the Court dismissed the motion because S did not have legal standing to file the Application against our client. If N wanted to file an Application, she would have had to do so herself.
If S was a conservator, or if the guardianship Order had outlined the right to commence litigation, the Court admitted this may have gone differently. As it stands, S did not and the court ruled in our favor.
Why you want to hire an attorney from the start
We understand that hiring an attorney can feel overwhelming, especially if you are hoping to avoid a trial. But the truth is, an attorney is more than just your representative in hearings and in front of juries; a lawyer offers guidance about how you can and should proceed. We sit down with clients and explain how the laws work, and why you must follow certain steps in order to make a claim. We also review their legal standing to file, and offer counsel about their alternative options.
Barry, Barall, Taylor & Levesque, LLC represents clients in personal injury, criminal defense, family law and estate planning matters throughout Connecticut. To learn more about our services, or to schedule a free consultation to discuss your legal matter with an experienced trial attorney, please call us in Manchester at 860-649-4400, or fill out our contact form.