Janice Thorsen et al. as Co–Plenary Guardians of Thomas Thorsen v. Nursing and Home Care, Inc. et al. (2011)

MEMORANDUM OF DECISION

On February 28, 2011 the court heard argument on defendants' motion to strike the seventh, eighth and ninth counts of the complaint on the ground that they do not allege sufficient facts to constitute claims for recklessness.

SUBJECT MATTER JURISDICTION

During the court's consideration of that motion it came to the court's attention that the plaintiffs claimed to bring this action by virtue of their appointment by the Norwalk Probate Court as the “co-plenary guardians” of their mentally retarded brother Thomas Thorsen.

The court noted that the powers and duties of persons appointed as plenary or limited guardians of persons with mental retardation are strictly governed by statute and that those powers and duties do not appear to include the right to initiate litigation on behalf of the mentally retarded person or to otherwise manage his financial affairs.   The court further noted that whether Janice Thorsen and Amy Thorsen have standing to maintain this action is an issue which implicates this court's subject matter jurisdiction.   Consequently, on March 25, 2011 the court issued an order directing the parties to prepare and file briefs addressing the issue of the court's subject matter jurisdiction no later than April 20, 2011.

RIGHT OF THE PLAINTIFFS TO MAINTAIN THE ACTION AS PLENARY CO–GUARDIANS

On April 19, 2011 the plaintiffs filed a short brief ¹ asserting, in essence, that since the plaintiffs held a position entitled “plenary guardian” and the dictionary definition of “plenary” is “full, entire, absolute, perfect, unqualified,” they must, ispo facto, have the right to maintain this action on behalf of their mentally retarded brother.   This ignores the plain meaning of the governing statutes.   In relevant part, General Statutes § 45a–669 defines the term “plenary guardian of a person with mental retardation” as “a person ․ appointed by a court of probate ․ to supervise all aspects of the care of an adult person, as enumerated in subsection (d) of section 45a–677, for the benefit of such adult, who by reason of his mental retardation, has been determined to be totally unable to meet essential requirements for his physical health or safety and totally unable to make informed decisions related to his care.”  (Emphasis supplied.)

General Statutes 45a–677(d) enumerates the powers of a plenary guardian.   They include:  1) assuring a place or abode outside the family home;  2) to consent to educational, vocational or behavioral programs;  3) to consent to the release of clinical records and photographs;  4) to consent to routine, elective and emergency medical and dental care;  5) “other specific limited powers to assure and consent to services necessary to develop or regain to the maximum extent possible the ward's capacity to meet essential requirements.”   The enumerated powers do not include the right to handle the financial affairs of the ward or to initiate litigation on the ward's behalf.  General Statutes 45a–677(d) further provides:  “All plenary guardians ․ shall also have the duty to assure the care and comfort of the ward within the limitations of their appointment, and within the limitations of the resources available to the ward either through the ward's own estate or by reason of private or public assistance.”   This provision recognizes that a plenary guardian's ability to act in the best interests of his ward might be limited by the resources available, but it does not expressly or implicitly empower a plenary guardian to assume control over his ward's estate.

General Statutes § 45a–679 addresses conflicts which may arise between plenary guardians and conservators of the estate of the mentally retarded person, thereby recognizing a mentally retarded person, having assets, would have both a plenary guardian and a conservator of their estate appointed by the probate court.

General Statutes § 45a–487c provides:  “In connection with trust matters, to the extent there is no conflict of interest between the representative and the person represented or among those being represented with respect to a particular question or dispute:  ․ (2) a court-appointed ․ guardian of the person may represent and bind the ward ․ if a conservator or guardian of the ward's estate has not been appointed ․” The scope of this statute is limited to “trust matters.”   The definition of “trust matters” set forth in General Statutes § 45a–487c is limited in scope and does not create a general right of a guardian of a person to handle the financial affairs of his ward.

The office of plenary guardian for a mentally retarded person has been created by statute.   The legislature has not seen fit to include in the powers of a plenary guardian the right to manage the financial affairs of the guardian's ward.   The arguments of plaintiffs' counsel to the contrary are not supported by the language of the relevant statutes.   Accordingly, the court finds that the plaintiffs are not entitled to maintain this action in their capacity of plenary co-guardians of their mentally retarded brother.

RIGHT OF THE PLAINTIFFS TO MAINTAIN THE ACTION AS “NEXT FRIEND OF THOMAS THORSEN”

On April 13, 2011 the plaintiffs filed a motion to substitute party (# 168.00) asking the court to substitute themselves as “next best friend” of their retarded brother, Thomas Thorsen.   In that motion, the plaintiffs stated that they had filed an application to be appointed conservator of the estate of their brother, Thomas.   The motion was considered by the court (Mottolese, JTR) on May 18, 2010.   The court directed the plaintiffs to file a brief within two weeks supporting their right to proceed as “next best friend” of Thomas Thorsen.   On May 25, 2011, the plaintiffs filed a request for extension to time to July 1, 2011 to file their brief.   On June 1, 2011, the plaintiffs filed a brief setting forth the basis for proceeding as “next best friend” of Thomas Thorsen.   On June 13, 2011, the court (Mottolese, JTR), after considering the plaintiff's brief scheduled an evidentiary hearing for June 28, 2011.

The plaintiffs have not yet demonstrated that the court has subject matter jurisdiction over their causes of action.  Practice Book § 11–19 provides that any matters heard on short calendar must be decided within 120 days of submission.   Since this defendant's motion to strike was submitted to the court on February 28, 2011 the court must act on that motion on or before June 28, 2011.   It is now apparent that issues regarding the plaintiffs' standing to maintain this action will not be resolved prior to that date.   Once the issue of subject matter jurisdiction is raised, it must be resolved before the court can address the merits of the case.  Rathblott v. Rathblott, 79 Conn.App. 812, 816–17 (2003).   Since the court can not address the merits of the defendants' motion to strike at this time, the defendants' motion to strike the seventh, eighth and ninth counts of the complaint is marked “off.

David R. Tobin, J.

FOOTNOTES

FN1. The defendants did not file any briefs in response to the court's order of March 25, 2011..  FN1. The defendants did not file any briefs in response to the court's order of March 25, 2011.

Tobin, David R., J.