Day v. Seblatnigg

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MARGARET E. DAY, COCONSERVATOR (ESTATE
OF SUSAN D. ELIA) v. RENEE F.
SEBLATNIGG ET AL.
(SC 20280)
Robinson, C. J., and Palmer, McDonald, Mullins,
Kahn, Ecker and Vertefeuille, Js.*
Syllabus
Pursuant to statute ((Rev. to 2011) § 45a-655 (a)), ‘‘[a] conservator of the
estate appointed under section 45a-646 . . . shall manage all the estate
and . . . shall use the least restrictive means of intervention in the
exercise of the conservator’s duties and authority.’’
Pursuant further to statute ((Rev. to 2011) § 45a-655 (e)), ‘‘[u]pon application
of a conservator of the estate . . . the court may authorize the conserva-
tor to make gifts or other transfers of income and principal from the
estate of the conserved person in such amounts and in such form,
outright or in trust, whether to an existing trust or a court-approved
trust created by the conservator, as the court orders . . . .’’
The plaintiff, the coconservator of the estate of E, sought a judgment declar-
ing that a certain irrevocable trust was void ab initio and unenforceable,
and that any and all assets transferred from E’s estate to the trust be
returned to the estate. The Probate Court previously had granted the
application of E, who suffered from Parkinson’s disease, for the volun-
tary appointment of a conservator of her person and her estate pursuant
to the voluntary conservatorship statute ((Rev. to 2011) § 45a-646). The
Probate Court appointed the named defendant, S, as the conservator
of E’s estate and issued a decree providing that S had the power to
manage the estate, to apply estate funds to support E, to pay her debts,
and to collect debts due to her. Thereafter, S met with representatives
of the defendant F Co. At their recommendation, S, in her capacity as
conservator of E’s estate, entered into an asset protection services
agreement on E’s behalf with F Co.’s corporate affiliate and established
a self-settled irrevocable asset protection trust. S supervised E’s execu-
tion of the instrument creating the irrevocable trust but did not seek
or obtain the Probate Court’s approval. The irrevocable trust named S
as a trustee and F Co. as the protector of the trust. Thereafter, S directed
the transfer of more than $6 million in assets to the irrevocable trust
from E’s estate, nearly all of which came from a revocable trust, of
which S was a trustee, that E previously had established. After S resigned
as conservator of E’s estate, the Probate Court appointed the plaintiff
to serve as the coconservator of E’s estate for the limited purpose of
any matters relating to E’s interest in the irrevocable trust. After the
plaintiff commenced the present declaratory judgment action in the trial
court, she filed a motion for summary judgment, claiming that there
was no genuine issue of material fact as to whether the irrevocable
trust was void. The trial court granted the plaintiff’s motion, agreeing
that the irrevocable trust was void ab initio and unenforceable, and
ordered that the transferred assets be returned to E’s estate. The court
concluded that a conservator retains the exclusive authority to manage
a voluntarily conserved person’s affairs and rejected F Co.’s argument
that § 45a-655 (e) did not apply because E, and not S, had created the
irrevocable trust. The court further reasoned that the revocable trust
was part of E’s estate, subject to the conservator’s authority, and, in
turn, subject to the requirements of § 45a-655 (e), because E had an
equitable interest in the revocable trust, and S had failed to comply with
§ 45a-655 (e) insofar as she did not obtain the Probate Court’s approval
prior to the creation or funding of the irrevocable trust. From the judg-
ment rendered in favor of the plaintiff, F Co. appealed to the Appellate
Court, claiming, inter alia, that the trial court had incorrectly determined
that E lacked authority to execute the irrevocable trust while under a
voluntary conservatorship. The Appellate Court affirmed the trial court’s
judgment, and F Co., on the granting of certification, appealed to this
court. Held that the Appellate Court properly upheld the trial court’s
determination that S, as conservator, had exclusive control over E’s
estate and that E therefore lacked the legal authority to create or to
fund the irrevocable trust, rendering the irrevocable trust null and void
ab initio: although the language of the relevant statues did not expressly
resolve whether a voluntarily conserved person and a conservator share
joint authority over the management of the voluntarily conserved per-
son’s estate, the text and the history of the statutory scheme governing
conservatorships demonstrated that the legislature did not intend to
allow a voluntarily conserved person to retain joint control over matters
delegated to the conservator’s authority, as this court has long construed
the language prescribing the conservator’s duty to ‘‘manage all the
estate,’’ as used in § 45a-655 (a), as conferring exclusive control on the
conservator; moreover, the various amendments to the conservatorship
statutory scheme did not change the conservator’s exclusive authority
over ‘‘all the estate’’ assigned to him or her by the Probate Court but,
rather, indicated a legislative intent that conservatorships be limited in
scope, that they not unnecessarily restrict the independence of the
conserved person, and that conservators have exclusive control over
those affairs assigned to them, subject to the condition that they use
the least restrictive means of intervention in the exercise of their
assigned duties, and nothing in the statutory scheme suggests that the
exclusive nature of the authority conferred on the conservator of the
estate differs when the conservatorship is voluntary rather than involun-
tary in nature; furthermore, under F Co.’s construction of the relevant
statutory provisions, conservators of voluntarily conserved persons
would be placed in an untenable position if the conserved person
retained the same legal authority that he or she had before being con-
served, because, if the voluntarily conserved person could freely dispose
of his or her estate without the knowledge of the conservator, the
conservator would be unable to fulfill his or her statutory duty to ‘‘man-
age all the estate,’’ and few would be willing to assume the risk of
becoming a conservator pursuant to a voluntary application under such
a construction; in addition, although F Co. cited cases for the proposition
that a conserved person with the requisite mental capacity may retain
the authority to engage in acts that are outside of the sphere of the
conservatorship as a matter of law or under the facts of a particular
case, F Co. cited no case for the proposition that a conservator and a
voluntarily conserved person may exercise concurrent authority over
matters assigned to the conservator, and this court’s conclusion that a
voluntary conservatorship deprives the conserved person of the legal
authority to manage his or her own financial affairs was consistent with
the decisions of the other jurisdictions that have considered the issue.
(Five justices concurring separately in one opinion)
Argued February 20, 2020—officially released January 21, 2022**
Procedural History
Action for a judgment declaring, inter alia, a certain
trust void ab initio and unenforceable, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk, where the court, Heller, J.,
granted the plaintiff’s motion for summary judgment
and rendered judgment thereon, from which the defen-
dant First State Fiduciaries, LLC, appealed to the Appel-
late Court, DiPentima, C. J., and Prescott and Flynn,
Js., which affirmed the trial court’s judgment, and the
defendant First State Fiduciaries, LLC, on the granting
of certification, appealed to this court. Affirmed.
James G. Green, Jr., with whom was Laura W. Ray,
for the appellant (defendant First State Fiduciaries, LLC).
Glenn W. Dowd, with whom, on the brief, was How-
ard Fetner, for the appellee (substitute plaintiff Marc
W. Elia).
Opinion
ROBINSON, C. J. The issue that we must decide in
this certified appeal, broadly stated, is whether a person
who has voluntarily obtained the appointment of a con-
servator, and thus has not been found by a court to be
incapable of managing her affairs, shares joint authority
with the conservator of her estate. This issue arises in
the specific context of the question of whether an inter
vivos trust created by a person under a voluntary con-
servatorship was void ab initio because the authority
to create such a trust rested exclusively with the conser-
vator of the estate under General Statutes (Rev. to 2011)
§ 45a-655.1
In 2011, Susan D. Elia submitted an application to
the Probate Court for voluntary representation by the
named defendant, Renee F. Seblatnigg,2 as the conserva-
tor of her estate. The Probate Court granted the applica-
tion. Thereafter, Elia created an irrevocable trust and
arranged for the transfer of certain assets to it. In 2014,
the plaintiff, Margaret E. Day,3 acting in her capacity
as coconservator of Elia’s estate for the limited purpose
of matters related to the irrevocable trust, brought this
action, seeking a judgment declaring that the trust was
void ab initio because Seblatnigg, as Elia’s conservator,
did not create and fund the trust with the approval of
the Probate Court pursuant to § 45a-655 (e). Thereafter,
the trial court granted the plaintiff’s motion for sum-
mary judgment and rendered judgment for the plaintiff.
The defendant, First State Fiduciaries, LLC,4 a Delaware
limited liability company that was designated as ‘‘the
protector of the . . . irrevocable trust,’’ appealed from
the judgment to the Appellate Court, claiming, among
other things, that the trial court had incorrectly deter-
mined that Elia could not create an irrevocable trust
on her own behalf while she was under a voluntary
conservatorship. The Appellate Court affirmed the judg-
ment of the trial court. Day v. Seblatnigg, 186 Conn.
App. 482, 506, 199 A.3d 1103 (2018). This certified appeal
followed.5 We affirm the judgment of the Appellate Court.
The opinion of the Appellate Court sets forth the
following facts, as found by the trial court, and proce-
dural history. ‘‘In June, 2011, Elia applied to the . . .
Probate Court for the voluntary appointment of a con-
servator of her person and her estate [because she had
Parkinson’s disease, a progressively degenerative con-
dition].6 Following a June 28, 2011 hearing in the . . .
Probate Court, at which the court, Hopper, J., saw Elia
in person, heard her reason for seeking voluntary repre-
sentation, and explained to her that appointing a conser-
vator as requested would subject her and her property
to the authority of the conservator, the court . . .
granted Elia’s application for voluntary representation
[by the persons she had designated]. By decree issued
on June 28, 2011 . . . the court appointed Seblatnigg
the conservator of Elia’s estate and Richard DiPaola
. . . the conservator of Elia’s person.
‘‘The June 28, 2011 decree provided that Seblatnigg,
as the conservator of Elia’s estate, had the power to
manage the estate, to apply estate funds to support
Elia, to pay her debts, and to collect debts due to her.
At the time of Seblatnigg’s appointment as conservator
of Elia’s estate, Elia owned or held an equitable interest
in cash and securities valued in excess of $6,000,000,
including those held in the Susan D. Elia Revocable
Trust, a 2007 revocable trust governed by Connecticut
law (the Connecticut revocable trust). [Seblatnigg was
a trustee of that trust.]
‘‘In September, 2011, Seblatnigg consulted with the
[defendant’s] managers . . . [Attorney] Robert Mauc-
eri . . . and [Attorney] James Holder . . . regarding
the creation of an asset protection plan for Elia. They
recommended to Seblatnigg that Elia establish and fund
a self-settled irrevocable Delaware asset protection
trust and a limited liability company, to be owned by
the trust, to hold her assets.
‘‘Seblatnigg, [in her capacity] as conservator of Elia’s
estate, entered into an asset protection services agree-
ment on Elia’s behalf with First State Facilitators, LLC
. . . an affiliate of [the defendant], on September 15,
2011. Seblatnigg, [in her capacity] as conservator, also
signed a legal representation agreement on behalf of
Elia with Mauceri. On the same day, Seblatnigg met with
Elia and supervised her execution of the instrument that
created the [Susan D. Elia Irrevocable Trust (Delaware
irrevocable trust)]. The trust instrument named Seblat-
nigg and Salvatore Mulia . . . as the independent trust-
ees of the Delaware irrevocable trust and named [the
defendant] as the protector of the Delaware irrevocable
trust. Seblatnigg did not seek or obtain the approval
of the . . . Probate Court to establish the Delaware
irrevocable trust or to advise Elia to execute the trust
instrument.
‘‘A Delaware limited liability company, [Peace at Last,
LLC (Peace at Last)] . . . wholly owned by the Dela-
ware irrevocable trust, was formed on September 15,
2011, to hold Elia’s assets. Beginning on September
20, 2011, Seblatnigg directed the transfer of more than
$6,000,000 in cash and securities from Elia’s conserva-
torship estate and the Connecticut revocable trust to
the Delaware irrevocable trust or to Peace at Last.7
Seblatnigg did not seek or obtain the approval of the
. . . Probate Court before she transferred the assets
to the [Delaware irrevocable trust] . . . or to Peace
at Last.
‘‘Seblatnigg resigned as the conservator of Elia’s estate
on April 5, 2013. The . . . Probate Court accepted
Seblatnigg’s resignation on May 21, 2013, subject to the
allowance of her final account, and appointed Mulia
the successor conservator of Elia’s estate. . . .
‘‘On January 9, 2014, at Elia’s request, the . . . Pro-
bate Court issued a decree . . . naming the plaintiff the
coconservator of Elia’s estate for the limited purpose
of any matters relating to Elia’s interest in the Delaware
irrevocable trust, because Mulia had a possible conflict
of interest.’’ (Footnotes added; internal quotation marks
omitted.) Day v. Seblatnigg, supra, 186 Conn. App. 486–
89.
The plaintiff subsequently brought this declaratory
judgment action, in which she sought a declaration that
the Delaware irrevocable trust was null and void ab
initio and an order that ‘‘any and all assets transferred
to the [Delaware irrevocable trust] or to any entity
owned by [that] trust be returned to the conservatorship
estate from whence they came . . . .’’ The plaintiff then
filed a motion for summary judgment, claiming that
there was no genuine issue of material fact as to
whether the Delaware irrevocable trust was void
because the assets held in the Connecticut revocable
trust were part of the conservatorship estate, and
Seblatnigg had not obtained the permission of the Pro-
bate Court to create or to fund the Delaware irrevocable
trust, which, according to the plaintiff, was required by
§ 45a-655 (e). The plaintiff further contended that Elia’s
signature on the trust documents could not invalidate
the otherwise improper act because, as a voluntarily
conserved person, she lacked independent power to
create and fund the Delaware irrevocable trust. The
defendant contended that § 45a-655 (e) did not apply
because the Connecticut revocable trust, which pre-
dated the conservatorship, was not part of the conserva-
torship estate and because Elia herself, not Seblatnigg,
created and funded the Delaware irrevocable trust.
The trial court concluded that, when a person is sub-
ject to a voluntary conservatorship, ‘‘the conservator,
as the agent of the Probate Court, has the exclusive
authority to manage the affairs of the conserved per-
son.’’ (Emphasis added.) The court further concluded
that, because Elia held a present equitable interest in
the Connecticut revocable trust, it was part of the con-
servatorship estate subject to the conservator’s author-
ity and, in turn, the requirements of § 45a-655 (e).8
Because Seblatnigg had not complied with the require-
ment that she obtain Probate Court approval for the
creation and funding of trusts on behalf of a conserved
person, the court concluded that ‘‘the Delaware irrevo-
cable trust [was] void ab initio and unenforceable, and
all transfers of assets from Elia’s conservatorship estate
to the trust or to Peace at Last were unauthorized and
improper.’’ Accordingly, the court granted the plaintiff’s
motion for summary judgment.
The defendant appealed from the trial court’s judg-
ment to the Appellate Court, claiming, among other
things, that the trial court had incorrectly determined
that ‘‘Elia lacked the ability to execute the Delaware
irrevocable trust while under a voluntary conservator-
ship.’’9 Day v. Seblatnigg, supra, 186 Conn. App. 501.
The Appellate Court concluded that, ‘‘[b]ecause a volun-
tarily conserved person does not retain control over
her estate, no genuine issue of material fact existed
that Elia lacked the legal capacity to form the Delaware
irrevocable trust’’ and, therefore, that the trial court
correctly determined that the Delaware irrevocable
trust was void ab initio as a matter of law. Id., 505–506.
Accordingly, the Appellate Court affirmed the judgment
of the trial court. Id., 506.
This certified appeal followed. The defendant con-
tends that the Appellate Court incorrectly determined
that Elia lacked the ‘‘legal capacity’’ to create the Dela-
ware irrevocable trust because Seblatnigg, as the con-
servator of her estate, had exclusive control over her
estate. We disagree.
We begin by setting forth the applicable standard of
review. ‘‘The standards governing our review of a trial
court’s decision to grant a motion for summary judg-
ment are well established. Practice Book [§ 17-49] pro-
vides that summary judgment shall be rendered forth-
with if the pleadings, affidavits and any other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. . . . In deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . The party seeking summary judgment has
the burden of showing the absence of any genuine issue
[of] material facts [that], under applicable principles of
substantive law, entitle him to a judgment as a matter
of law . . . and the party opposing such a motion must
provide an evidentiary foundation to demonstrate the
existence of a genuine issue of material fact. . . . A
material fact . . . [is] a fact [that] will make a differ-
ence in the result of the case. . . . Finally, the scope
of our review of the trial court’s decision to grant the
plaintiff’s motion for summary judgment is plenary.’’
(Internal quotation marks omitted.) DiPietro v. Farm-
ington Sports Arena, LLC, 306 Conn. 107, 115–16, 49
A.3d 951 (2012).
A question of statutory interpretation is presented
by the defendant’s contention that the Appellate Court
incorrectly determined that, under the statutory scheme,
conservators have exclusive control over the estates
of conserved persons and, therefore, that conserved
persons lack the capacity to create and fund trusts on
their own behalf. As such, our review is plenary. See,
e.g., Jobe v. Commissioner of Correction, 334 Conn.
636, 647–48, 224 A.3d 147 (2020). ‘‘When construing a
statute, [o]ur fundamental objective is to ascertain and
give effect to the apparent intent of the legislature. . . .
In other words, we seek to determine, in a reasoned
manner, the meaning of the statutory language as
applied to the facts of [the] case, including the question
of whether the language actually does apply. . . . In
seeking to determine that meaning, General Statutes
§ 1-2z directs us first to consider the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not
be considered.’’ (Internal quotation marks omitted.)
Id., 648.
We begin with a review of the relevant statutes. Gen-
eral Statutes (Rev. to 2011) § 45a-644 (a), which applies
to voluntary and involuntary representation, defines
‘‘conservator of the estate’’ in relevant part as ‘‘a person
. . . appointed by the Court of Probate . . . to super-
vise the [respondent’s] financial affairs . . . .’’ Whereas
an involuntary conservatorship may not be ordered in
the absence of a finding that the respondent is incapable
of managing her affairs; see General Statutes (Rev. to
2011) § 45a-650 (f) (1); when the Probate Court grants
an application for voluntary representation, the Probate
Court ‘‘shall not make a finding that the petitioner is
incapable.’’10 General Statutes (Rev. to 2011) § 45a-646.
Presumably because of this distinction, a ‘‘conserved
person’’ is defined as ‘‘a person for whom involuntary
representation is granted . . . .’’ (Emphasis added.)
General Statutes (Rev. to 2011) § 45a-644 (h). Despite
the lack of a finding of incapacity for voluntary repre-
sentation, a conservator appointed under such circum-
stances ‘‘shall have all the powers and duties of a con-
servator of the . . . estate of an incapable person
. . . .’’ General Statutes (Rev. to 2011) § 45a-646. Those
powers and duties are set forth in § 45a-655, which
provides in relevant part that a conservator of the estate
‘‘shall manage all the estate’’ of the conserved person
but ‘‘shall use the least restrictive means of intervention
in the exercise of the conservator’s duties and author-
ity.’’ General Statutes (Rev. to 2011) § 45a-655 (a).
The defendant contends that, because Elia was not
a ‘‘conserved person,’’ as defined by General Statutes
(Rev. to 2011) § § 45a-644 (h), and, because the Probate
Court made no finding and, indeed, was statutorily pro-
hibited from making a finding, that she was incapable,
she retained the capacity to create the Delaware irrevo-
cable trust. In support of the proposition that Elia’s
capacity to create the trust presents a question of fact,
the defendant points to case law recognizing that even
involuntarily conserved persons may have the requisite
mental capacity to undertake certain acts. It further
contends that this conclusion is compelled by the statu-
tory requirement that the conservator ‘‘supervise’’ finan-
cial affairs; General Statutes (Rev. to 2011) § 45a-644
(a); through the ‘‘use [of] the least restrictive means of
intervention . . . .’’ General Statutes (Rev. to 2011)
§ 45a-655 (a). The defendant argues that interpreting
the conservator’s authority over ‘‘all the estate’’ to mean
exclusive control, rather than as merely a description
of the scope of the estate over which concurrent control
exists, would be inconsistent with this restriction.
Finally, the defendant contends that, because Elia had
the right to establish the trust and the provision of
§ 45a-655 (e) requiring the permission of the Probate
Court to establish a trust for a conserved person applies
only to the conservator, the statute simply does not apply
in the present case.
We conclude that, although the statutory language
does not expressly resolve this question, there is a
wealth of evidence that the legislature did not intend
to allow a person who has voluntarily sought a conser-
vator to retain joint control over the matters delegated
to the conservator’s authority.
It is useful at the outset to clarify certain terminology.
The Appellate Court framed the question as whether
Elia had the ‘‘legal capacity’’ to create the Delaware
irrevocable trust. Day v. Seblatnigg, supra, 186 Conn.
App. 505. We find the term ‘‘legal capacity’’ inappropri-
ate and misleading as applied to the case at hand
because it implies that we are inquiring into Elia’s men-
tal capacity. See Luster v. Luster, 128 Conn. App. 259,
271–72, 17 A.3d 1068, cert. granted, 302 Conn. 904, 23
A.3d 1243 (2011) (appeal dismissed April 12, 2012); see
also E. Flynn & A. Arstein-Kerslake, ‘‘The Support
Model of Legal Capacity: Fact, Fiction, or Fantasy?,’’
32 Berkeley J. International L. 124, 127 (2014) (some
degree of actual or presumed mental incapacity typi-
cally is predicate to legislative or legal determination
of lack of legal capacity). A person who is voluntarily
represented by a conservator, however, has not been
found to be incapable of managing her affairs. We there-
fore frame the issue as one of Elia’s ‘‘legal authority.’’
We also note that the term ‘‘conserved person’’ is statu-
torily defined to mean persons subject to involuntary
conservatorships. See General Statutes (Rev. to 2011)
§ 45a-644 (h). Nevertheless, because the statutes describ-
ing the rights and duties in relation to a ‘‘conserved
person’’ also apply to voluntary conservatorships; see
General Statutes (Rev. to 2011) §§ 45a-646 and 45a-655;
we use the term ‘‘voluntarily conserved person’’ to refer
to persons who are subject to a voluntary conservator-
ship.
Having clarified the terminology, we turn to the evi-
dence demonstrating that the legislature did not intend
for voluntarily conserved persons to have joint author-
ity with their conservators over the management of
their estates. The language prescribing the conserva-
tor’s duty to ‘‘manage all the estate’’; General Statutes
(Rev. to 2011) § 45a-655 (a); has been part of the conser-
vator statute for more than one century. In 1899, this
court explained that this language confers exclusive
control on the conservator: ‘‘[T]he conservator has as
against the ward, the sole care and management of the
estate and the sole power over the claims in favor of
or against the estate. He alone can collect, by suit or
otherwise, debts due to the ward, and he alone can pay
the debts due from the ward. As under the law the ward
may be thus deprived of substantially all power over
his estate . . . .’’ Johnson’s Appeal from Probate, 71
Conn. 590, 597, 42 A. 662 (1899); accord Marshall v.
Kleinman, 186 Conn. 67, 69, 438 A.2d 1199 (1982); State
v. Tarcha, 3 Conn. Cir. 43, 45, 207 A.2d 72 (1964).
When the legislature created the concept of voluntary
representation by conservators in 1977, it deemed the
persons appointed thereunder to have ‘‘all the powers
and duties’’ of the conservator of the estate of an incapa-
ble person, with no limitation on the scope of those
powers. See Public Acts 1977, No. 77-446, § 5, codified
at General Statutes (Rev. to 1977) § 45a-646. This like
treatment may have rested on the legislature’s intention
to allow people who in fact would meet the statutory
definition of incapacity under the conservatorship
scheme to voluntarily submit to a conservatorship. The
legislative history reveals that the voluntary conserva-
torship was proposed in part to allow such persons to
obtain help managing their affairs without having to
admit to their incapacity, even if they then met the
statutory definition of incapacity. See Conn. Joint
Standing Committee Hearings, Judiciary, Pt. 1, 1977
Sess., pp. 189–90, testimony of Probate Judge Bernard
F. Joy (chairman of committee appointed by Probate
Court administrator to provide proposal to amend con-
servatorship scheme). A 1987 amendment to § 45a-646
ensured that, for those persons whose impairments did
not quite rise to the level of the statutory definition of
incapacity at the time the voluntary conservatorship
was ordered, subsequent incapacity would not revoke
the voluntary conservatorship. See Public Acts 1987,
No. 87-87.
In 1998, the legislature adopted a provision that per-
mitted the Probate Court to limit the powers and duties
of the conservator, in light of the conserved person’s
abilities and other support services available to the
conserved person. See Public Acts 1998, No. 98-219,
§ 17, codified at General Statutes (Rev. to 1999) § 45a-
650 (g). Thus, ‘‘[p]rior to 1998, in all cases in which a
court found that a respondent was incapable, it was
obligatory to appoint a plenary conservator. While [the
1998] amendments . . . permitted appointment of a
conservator on a limited basis . . . plenary appoint-
ments continued to be the norm.’’ (Internal quotation
marks omitted.) Kortner v. Martise, 312 Conn. 1, 53,
91 A.3d 412 (2014).
In 2007, the legislature undertook a substantial revi-
sion of the conservatorship scheme, aimed at protecting
the rights and preserving the dignity of persons who
were subject to involuntary conservatorships. See Pub-
lic Acts 2007, No. 07-116; see generally 50 S. Proc.,
Pt. 10, 2007 Sess., pp. 3228–39. The 2007 act made no
changes to court procedures for ordering voluntary con-
servatorships, which, unlike involuntary conservator-
ships, always have been subject to termination upon
request. See General Statutes § 45a-647. For involuntary
conservatorship proceedings, the trial court could
assign to the conservator only those duties and authori-
ties that are the ‘‘least restrictive means of interven-
tion’’11 necessary to meet the needs of the conserved
person; General Statutes (Rev. to 2011) § 45a-650 (l);
and the involuntarily conserved person would retain
‘‘all rights and authority not expressly assigned . . . .’’
General Statutes (Rev. to 2011) § 45a-650 (k). Both the
text and the legislative history of the 2007 act indicate
that ‘‘the legislature intended . . . for a conservator-
ship to be as limited in scope as possible, [as well as
for] the conservatorship [to] be carried out so as to
maintain the most independence and self-determination
for the conserved person.’’12 (Emphasis added.) Kortner
v. Martise, supra, 312 Conn. 52; see also K. McEvoy,
‘‘Recent Developments in Connecticut Conservatorship
Law,’’ 81 Conn. B.J. 319, 319 (2007) (‘‘[t]he most funda-
mental aspect of the [changes made in the 2007 public
act] is that they build on prior Connecticut law to
require a presumption of limited, rather than plenary,
conservatorship’’).
The 2007 amendments reflected the view that invol-
untarily conserved persons could be incapable of man-
aging some of their affairs, while retaining the capacity
to manage others, and, as to those matters for which
they retained such capacity, they would have exclusive
authority and would not share joint control with the
conservator. With respect to those affairs that are under
the control of the conservator, the conservator would
have exclusive control, subject to the condition that
the conservator must use the least restrictive means of
intervention in the exercise of those duties assigned to
them. See General Statutes (Rev. to 2011) § 45a-655 (a).
Thus, the revised scheme did not change the conserva-
tor’s exclusive authority over ‘‘all the estate’’ assigned
to him or her.
Nothing in the statutes suggests that the exclusive
nature of the authority conferred on the conservator
of the estate with respect to the matters over which
the conservator has control differs when there is a
voluntary conservatorship. There was in fact no need
for the legislature to create a mechanism that would
allow persons to voluntarily obtain assistance with the
management of their affairs without ceding their author-
ity. Persons seeking a relationship of joint authority
could execute a power of attorney; see General Statutes
(Rev. to 1977) §§ 1-42 through § 1-56; and concerns
about future incapacity could be addressed through the
prophylactic designation of a conservator.13 See General
Statutes § 45a-645.
There also are practical reasons why the legislature
would not have intended to allow for joint authority in
a conservatorship. A conservator could not fulfill his
or her statutory duty to ‘‘manage all the estate’’ pursuant
to § 45a-655 (a) if the conserved person retained the
same legal authority that the person had before being
conserved, including the ability, for example, to give
the entire estate away without the conservator’s knowl-
edge. As one authority has observed, although the statu-
tory scheme governing conservatorships in this state
does not clearly indicate the extent to which persons
subject to voluntary conservatorships retain the ‘‘legal
capacity’’ to manage their affairs, ‘‘[r]etention of legal
capacities [to enter into contracts and convey title, for
example] would appear inconsistent with the purposes
of voluntary representation.’’ R. Folsom et al., Connecti-
cut Estates Practice Series: Incapacity, Powers of Attor-
ney and Adoption in Connecticut (4th Ed. 2021) § 2:8,
p. 131. One of those purposes was, as we have
explained, to allow persons who might, in fact, meet
the statutory definition of incapacity to obtain help in
managing their affairs without having to establish their
incapacity in an involuntary conservatorship proceed-
ing. If voluntarily conserved persons had the legal
authority to manage all of their affairs, persons who
are, in fact, incapable would have no choice but to
submit to an involuntary conservatorship.
The defendant’s construction also would place the
conservator in an untenable position. A voluntary con-
servator may be required to post a bond; General Stat-
utes § 45a-646; and is required to make and file in the
Probate Court, under penalty of false statement, an
inventory of the conserved person’s estate. General
Statutes (Rev. to 2011) § 45a-655 (a). Presumably, the
purpose of these requirements is to hold the conserva-
tor accountable for distributions from the estate. If the
voluntarily conserved person could freely dispose of
the estate without the knowledge of the conservator,
perhaps without making any record or after having
become incapable, few would be willing to take on the
risk of becoming a conservator pursuant to a voluntary
application. Although the defendant emphasizes the
fact that Elia and Seblatnigg were acting together and
in full agreement when the acts at issue were under-
taken, that will not necessarily always be the case.
The defendant suggests that it would be anomalous to
conclude that an involuntarily conserved person, who
necessarily has been found incapable of managing his
or her own affairs; see General Statutes (Rev. to 2011)
§ 45a-650 (f) (1); might retain rights that a capable vol-
untarily conserved person does not. We reach no such
conclusion in the present case. The sole issue before
us is whether a voluntarily conserved person and her
conservator may exercise concurrent control over mat-
ters delegated to the conservator. Nothing in this opin-
ion suggests that an involuntarily conserved person may
exercise such concurrent control. As we previously
explained, the Probate Court’s mandate in involuntary
conservatorship proceedings to ‘‘assign . . . only the
duties and authority that are the least restrictive means
of intervention necessary to meet the needs of the con-
served person’’; General Statutes (Rev. to 2011) § 45a-
650 (l); means that the conserved person may retain
exclusive authority over matters that he or she is capa-
ble of handling, with or without support of individuals
other than a conservator. Whether a person applying
for a voluntary conservatorship may achieve the same
end by requesting the assistance of a conservator for
limited matters is not before us.14
The defendant also cites several appellate cases that
recognize the capacities of even involuntary conserved
persons to undertake certain acts, but none of these
demonstrates that a conservator and a voluntarily con-
served person may exercise concurrent authority over
matters assigned to the conservator. These cases stand
for an entirely different proposition: a conserved person
with the requisite mental capacity may retain the
authority to engage in acts that are outside of the sphere
of conservatorship as a matter of law or under the facts
of the particular case.15 See Kortner v. Martise, supra,
312 Conn. 4–5, 58 (appointment of mother as conserva-
tor of her daughter’s person did not deprive conserved
person of capacity to consent to sadomasochistic sex-
ual relationship as matter of law when conservator ‘‘did
not establish, or even allege, that her appointment as
conservator . . . specifically included the duty to
manage [the conserved person’s] interpersonal and/or
romantic relationships’’);16 Bassford v. Bassford, 180
Conn. App. 331, 335, 347, 352, 183 A.3d 680 (2018)
(adopting trial court decision concluding that involun-
tarily conserved person properly could revoke trust
and thereby receive title to real property held in trust
because evidence demonstrated that conserved person
had requisite mental capacity and right to revoke trust
had not been expressly assigned to conservator).
To the extent that the defendant now contends that
Elia’s creation of the Delaware irrevocable trust was a
testamentary act and that, even if she generally lacked
the legal authority to manage her affairs as the result
of the voluntary conservatorship, she retained her testa-
mentary capacity,17 we conclude that any such claim is
unreviewable because it is being raised for the first
time in this certified appeal; see, e.g., Mangiafico v.
Farmington, 331 Conn. 404, 436, 204 A.3d 1138 (2019);
State v. Darryl W., 303 Conn. 353, 371, 33 A.3d 239(2012); and, in any event, is inadequately briefed.18 See,
e.g., Estate of Rock v. University of Connecticut, 323
Conn. 26, 33, 144 A.3d 420 (2016).
Finally, we observe that several other jurisdictions
also have concluded that a voluntary conservatorship
of the estate deprives the conserved person of the legal
authority to manage his or her own financial affairs.19
The decision of the Supreme Court of Kansas in Citi-
zens State Bank & Trust Co. of Hiawatha v. Nolte, 226
Kan. 443, 601 P.2d 1110 (1979), is particularly instruc-
tive. After concluding that ‘‘a conservatee under a volun-
tary conservatorship cannot contract or deed away his
property [i]nter vivos without the prior approval of the
conservator or, where required by statute, the approval
of [a probate] court’’; id., 450; the court stated that a
contrary rule ‘‘would defeat the primary purpose of the
voluntary conservatorship statute to dignify old age by
eliminating, in many instances, the stigma of having the
elderly person declared incapacitated or incompetent.
Incapacity is a matter of degree. . . . If a voluntary
conservatee, not mentally incapacitated, were to be
given an unbridled power to contract or deed away his
property [i]nter vivos, the voluntary conservatorship
would seldom be used, because the relatives of the
elderly person, seeking to protect the loved one from
his or her own actions, would of necessity, utilize the
compulsory conservatorship procedure. Hence, the
[elderly] would in most instances be required to spend
their golden years branded as ‘incapacitated’ or ‘incom-
petent.’
‘‘It also appears . . . that, if a voluntary conservatee
were given the power in his discretion to dispose of
his property [i]nter vivos, it is doubtful that any person
would want to accept the position of conservator, since
such a conservator, although given responsibilities and
duties, would really have no control over the estate of
his conservatee. This would be an extremely difficult,
if not an impossible situation. . . . [S]uch a holding
would create a judicial exception, diminishing the broad
powers of a conservator to control and manage the
conservatorship assets provided for under the Kansas
statutes. The Kansas legislature has not specifically
granted a voluntary conservatee the power to contract
or to incur debts while the conservatorship is in exis-
tence . . . . If the legislature desires to make such an
exception, it may do so.
‘‘[The Kansas court] also concluded that there [was]
no need for [it to adopt] such a rule. . . . [U]nder [the
Kansas statutes], a voluntary conservatorship may be
terminated by the mere filing of a verified application
by the conservatee that he or she no longer desires to
have the conservatorship continued. If the voluntary
conservatee really wants to convey his property and is
opposed by an uncooperative conservator, the conser-
vatee may go to court and have the voluntary conserva-
torship terminated. Furthermore, an elderly person,
who does not like the [interpretation adopted by the
Kansas court], may execute an appropriate power of
attorney so that he may have assistance in the manage-
ment of his affairs without eliminating his power to
dispose of his property [i]nter vivos.’’ Id., 450–51.
Similarly, the Wisconsin Court of Appeals has held
that, ‘‘[a]lthough the appointment of a conservator is
not evidence of the incompetency of the conservatee,
and although a conservatee is not considered com-
pletely incapable of looking after his or her own prop-
erty . . . the purpose of a conservatorship is to afford
the protections akin to those provided by a guardianship
but without the stigma of incompetency. . . . If a con-
servatee does not require the input and approval of the
conservator or the conservatorship court in matters
relating to the disposition of his or her property, a
conservatorship serves no meaningful purpose.
‘‘If a conservatee wishes to rid himself or herself of
the restrictions of a conservatorship, the statute
[allowing the conserved person to apply for termination
of the conservatorship] supplies an avenue for relief.
. . .
’’[The Wisconsin court] acknowledge[d] that inval-
idating [the conservatee’s] gift is a harsh result . . .
[when] she has been found to be competent at the time
of the gift. However . . . to hold that a conservatee
may act at his or her whim without conservator or
conservatorship court approval would emasculate the
statute and render it meaningless. Such interpretations
are to be avoided.’’ (Citations omitted.) Zobel ex rel.
Hancox v. Fenendael, 127 Wis. 2d 382, 395–96, 379
N.W.2d 887 (App. 1985), review denied, 128 Wis. 2d 566,
386 N.W.2d 500, appeal dismissed and cert. denied, 479
U.S. 804, 107 S. Ct. 47, 93 L.Ed.2d 9 (1986); see Bryan
v. Century National Bank, 498 So. 2d 868, 872 (Fla.
1986) (competent person subject to voluntary guardian-
ship ‘‘may not freely deal with that property which has
been placed in the guardian’s control in the absence of
court approval’’); Foss v. Twenty-Five Associates of
Roxbury, 239 Mass. 295, 297–98, 131 N.E. 798 (1921)
(competent conserved person who petitioned for con-
servatorship did not have legal authority to manage
own affairs); Normandin v. Kimball, 92 N.H 62, 64, 25
A.2d 39 (1942) (person who ‘‘placed her property in the
hands of a conservator . . . could not make a valid
contract disposing of that property in her lifetime with-
out his approval’’ (citation omitted)); In re Tillman,
137 N.E.2d 172, 175 (Ohio Prob. 1956) (competent per-
son who consented to appointment of guardian of estate
‘‘waived her constitutional rights to control the disposi-
tion of her own property and consented to having her
property administered by a guardian who was subject
to rules of law and the supervision of the [P]robate
[C]ourt’’).
We are in full accord with these authorities. We con-
clude that a person who is subject to a voluntary conser-
vatorship pursuant to § 45a-646 does not retain the legal
authority to jointly manage his or her estate as to those
matters assigned to the conservator. Rather, the conser-
vator has exclusive control over such matters, subject
to any statutory restrictions or requirements. Therefore,
insofar as the defendant relies on the concept of concur-
rent authority, the Appellate Court correctly deter-
mined that Elia lacked the legal authority to establish
the Delaware irrevocable trust and, accordingly, that
the trust was null and void ab initio.20
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** January 21, 2022, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
General Statutes (Rev. to 2011) § 45a-655 provides in relevant part: ‘‘(a)
A conservator of the estate appointed under section 45a-646 [voluntary
conservatorship], 45a-650 [involuntary conservatorship] or 45a-654 [tempo-
rary conservatorship] shall, within two months after the date of the conserva-
tor’s appointment, make and file in the Court of Probate, an inventory, under
penalty of false statement, of the estate of the conserved person, with the
properties thereof appraised or caused to be appraised, by such conservator,
at fair market value as of the date of the conservator’s appointment. Such
inventory shall include the value of the conserved person’s interest in all
property in which the conserved person has a legal or equitable present
interest, including, but not limited to, the conserved person’s interest in any
joint bank accounts or other jointly held property. The conservator shall
manage all the estate and apply so much of the net income thereof, and, if
necessary, any part of the principal of the property, which is required to
support the conserved person and those members of the conserved person’s
family whom the conserved person has the legal duty to support and to pay
the conserved person’s debts, and may sue for and collect all debts due the
conserved person. The conservator shall use the least restrictive means of
intervention in the exercise of the conservator’s duties and authority.
***
‘‘(e) Upon application of a conservator of the estate . . . the court may
authorize the conservator to make gifts or other transfers of income and
principal from the estate of the conserved person in such amounts and in
such form, outright or in trust, whether to an existing trust or a court-
approved trust created by the conservator, as the court orders to or for the
benefit of individuals, including the conserved person, and to or for the
benefit of charities, trusts or other institutions described in [the relevant
provisions of the Internal Revenue Code of the United States]. . . .’’
Unless otherwise indicated, all references to § 45a-655 in this opinion are
to the 2011 revision of the statute.
2
The complaint also named the following defendants: Edward E. Pratesi;
Harry D. Lewis; Susan D. Elia; Marc W. Elia and Christine E. Elia, as guardians
of certain minor children who were beneficiaries of the Susan D. Elia Irrevo-
cable Trust; then Attorney General George Jepsen; and Sarah Wilbur Day,
Matthew Lewis Striplin, Samuel Bowden Striplin and Suzanne Palazzi Day,
remainder beneficiaries of the Susan D. Elia Irrevocable Trust. The claims
against Seblatnigg, Lewis and Pratesi were ultimately withdrawn. The trial
court granted motions of default as to Marc W. Elia, Matthew Lewis Striplin,
Samuel Bowden Striplin, Sarah Wilbur Day and Suzanne Palazzi Day. See
Day v. Seblatnigg, 186 Conn. App. 482, 485 n.1, 199 A.3d 1103 (2018).
3
Elia died during the pendency of this appeal, and Marc W. Elia, in his
capacity as executor of Elia’s estate, was substituted as a plaintiff.
4
Hereinafter, all references to the defendant in this opinion are to First
State Fiduciaries, LLC.
5
We granted the defendant’s petition for certification to appeal on the
following issue: ‘‘Did the Appellate Court properly uphold the trial court’s
conclusion that an irrevocable trust created by a voluntarily conserved
person was void ab initio under . . . § 45a-655 (e), regardless of whether
the conserved person at the time of the transfer had unimpaired testamentary
capacity?’’ Day v. Seblatnigg, 331 Conn. 913, 204 A.3d 702 (2019). Neither
the fact that Elia may have had unimpaired testamentary capacity nor the
application of § 45a-655 (e) is, however, relevant to the issue on appeal, as
framed by the parties. Indeed, the issue of Elia’s testamentary capacity was
not raised in the proceedings below, and the Appellate Court never addressed
the application of § 45a-655 (e). Rather, the question that the parties and
the courts below have addressed is whether a voluntarily conserved person
who has not been found ‘‘incapable of managing . . . her affairs,’’ as that
phrase is defined in General Statutes (Rev. to 2011) § 45a-644 (d), may
create an irrevocable trust. Accordingly, we reframe the certified question
as follows: ‘‘Did the Appellate Court properly uphold the trial court’s conclu-
sion that an irrevocable trust created by a voluntarily conserved person was
void ab initio under § 45a-655 (e), regardless of the fact that the conserved
person at the time of the transfer has not been found ‘incapable of managing
. . . her affairs,’ as that phrase is defined in General Statutes (Rev. to 2011)
§ 45a-644 (d)?’’ See, e.g., Rosado v. Bridgeport Roman Catholic Diocesan
Corp., 276 Conn. 168, 191–92, 884 A.2d 981 (2005) (court may reframe
certified question to more accurately reflect issue presented).
6
Elia submitted letters to the court from a physician opining that she had
a mild cognitive impairment, consistent with her Parkinson’s disease, which
rendered complex learning or activities requiring concentration, such as
balancing a checkbook, difficult, but that she was nonetheless ‘‘clearly . . .
competent and capable of making her own decisions.’’
7
The plaintiff executed an affidavit in which she averred that $6,538,415.49
was transferred to the Delaware irrevocable trust from the Connecticut
revocable trust and that $80,000 was transferred to the Delaware irrevocable
trust from ‘‘Seblatnigg’s conservatorship account . . . .’’ Nothing in the
record indicates whether any funds remained in the Connecticut revocable
trust following the transfer of assets to the Delaware irrevocable trust.
8
The trial court concluded that the preexisting Connecticut revocable
trust was part of the conservatorship estate because § 45a-655 (a) requires
the conservator to make and file an inventory of the conserved person’s
estate and provides that such inventory shall include any ‘‘equitable’’ interest
in property held by the conserved person. The Appellate Court found it
unnecessary to address this issue; see Day v. Seblatnigg, supra, 186 Conn.
App. 506 n.10; and, for the reasons stated subsequently in this opinion, we
also do not address it. See footnote 20 of this opinion.
9
In its appeal to the Appellate Court, the defendant also contended that
there were material issues of fact in dispute as to whether (1) Seblatnigg
or Elia created the Delaware irrevocable trust, and (2) Seblatnigg transferred
the funds from the Connecticut revocable trust in her capacity as trustee
or conservator. The Appellate Court concluded that the trial court had
found that there was no genuine issue of material fact that Elia created the
Delaware irrevocable trust (the position advocated by the defendant); see
Day v. Seblatnigg, supra, 186 Conn. App. 501 and n.9; and that Seblatnigg’s
status as transferor did not constitute a genuine issue of material fact that
precluded summary judgment because Elia lacked ‘‘legal capacity’’ to create
the trust. Id., 505; see id., 506 n.10. On appeal to this court, the defendant
maintains its position that Elia created the trust, and we assume that to be
the case for purposes of this opinion. In addition, the defendant contended
that the Connecticut revocable trust assets, as assets legally titled to trustees
of a preexisting trust, were not part of the conservatorship estate and, thus,
not subject to § 45a-655 (e). See id., 506 n.10. The Appellate Court concluded,
for reasons set forth later in this opinion, that it was unnecessary to address
this claim. Id.
10
General States (Rev. to 2011) § 45a-644 (d) provides: ‘‘ ‘Incapable of
managing his or her affairs’ means that a person has a mental, emotional
or physical condition that results in such person being unable to receive
and evaluate information or make or communicate decisions to such an
extent that the person is unable, even with appropriate assistance, to perform
the functions inherent in managing his or her affairs, and the person has
property that will be wasted or dissipated unless adequate property manage-
ment is provided, or that funds are needed for the support, care or welfare
of the person or those entitled to be supported by the person and that the
person is unable to take the necessary steps to obtain or provide funds
needed for the support, care or welfare of the person or those entitled to
be supported by the person.’’
11
‘‘ ‘Least restrictive means of intervention’ means intervention for a con-
served person that is sufficient to provide, within the resources available
to the conserved person either from the conserved person’s own estate or
from private or public assistance, for a conserved person’s personal needs
or property management while affording the conserved person the greatest
amount of independence and self-determination.’’ General Statutes (Rev. to
2011) § 45a-644 (k).
12
See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 17, 2007
Sess., pp. 5415–16, testimony of James D. McGaughey, executive director
of the Office of Protection and Advocacy for Persons with Disabilities
(explaining that, under existing scheme, his ‘‘office frequently encounter[ed]
people who either could have benefited from some very limited, narrowly
tailored form of conservatorship, but instead got a full conservatorship and
lost all their rights’’); id., p. 5443, testimony of Judith Desautell (arguing that
proposed bill would address problems she encountered when involuntarily
conserved because ‘‘the court could have imposed a limited conservator[-
ship]’’); id., p. 5462, testimony of Judge Robert Killian (explaining changes
proposed in bill as part of committee he chaired, including requiring conser-
vators ‘‘to provide assistance only in the limited areas where someone
[cannot] function for themselves’’).
13
In the underlying conservatorship proceedings in the present case, the
Probate Court, Hopper, J., informed Elia that the conservator of her estate
‘‘would have management control . . . that [is] very similar to a power of
attorney. The only difference is that a power of attorney doesn’t have Probate
Court oversight . . . .’’ A power of attorney creates a principal-agent rela-
tionship, the person granting that control being the principal. See, e.g.,
Geriatrics, Inc. v. McGee, 332 Conn. 1, 13–14, 208 A.3d 1197 (2019); Long
v. Schull, 184 Conn. 252, 256, 439 A.2d 975 (1981). Although the conservator’s
obligation to use the least restrictive means of intervention requires the
conservator to ascertain the wishes of the conserved person and to adhere
to them if reasonable, and a voluntarily conserved person may terminate
the conservatorship at will, a voluntary conservatorship does not create the
same relationship as a power of attorney. No claim is made in the present
appeal that Elia retained joint control as a consequence of the court’s
statement.
14
We observe that, although the voluntary conservatorship statute, § 45a-
646, does not include the same express limitation on the court’s authority in
General Statutes (Rev. to 2011) § 45a-650, it does provide that the voluntarily
appointed conservator shall have the ‘‘all the powers and duties’’ of a conser-
vator appointed under General Statutes (Rev. to 2011) § 45a-650. We also
note that the standard Probate Court form for an application for voluntary
representation provides a section for the applicant to list the duties and
authorities of the conservator. See Petition/Voluntary Representation by
Conservator, Connecticut Probate Court Form PC-301, available at https://
www.ctprobate.gov/Forms/PC-301.pdf (last visited January 20, 2022). There
is no claim or evidence in the present case that Elia sought to limit the
scope of the voluntary conservatorship in any manner.
15
The defendant also points to a Superior Court case stating: ‘‘Unless a
person has been adjudicated incompetent she retains the legal capacity to
maintain an action. Ridgeway v. Ridgeway, 180 Conn. 533, 539 [429 A.2d
801] (1980).’’ Reale v. Reale, Superior Court, judicial district of Tolland,
Docket No. FA-99-70340-S (January 12, 2000) (26 Conn. L. Rptr. 311, 311).
The right of access to the courts is not at issue in the present case. Ridgeway
provides little, if any, guidance on the question before us.
16
Our holding in Kortner does not suggest that, if such a duty had been
conferred, the conservator would have been able to give her consent to
the man seeking the sexual relationship with her daughter. Rather, the
conservator would have been able to grant her daughter permission to
engage in that relationship if her daughter so chose. See Kortner v. Martise,
supra, 312 Conn. 58; cf. General Statutes § 46b-29 (a) (requiring written
consent of conservator for marriage license to issue to applicant under
control of conservator). Certain rights are so personal in nature that they
cannot be exercised by another.
17
The defendant points out that, in Reid v. Lord, 102 Conn. 365, 368, 128
A. 521 (1925), this court held that the fact that a person was subject to a
conservatorship at the time of death was not conclusive of the person’s
mental capacity to execute a will. As the court in Citizens State Bank &
Trust Co. of Hiawatha v. Nolte, 226 Kan. 443, 601 P.2d 1110 (1979), recog-
nized, although voluntarily conserved persons lack the legal authority to
manage their own financial affairs, they may make testamentary dispositions
if they have testamentary capacity. See id., 450; see also Bassford v. Bassford,
supra, 180 Conn. App. 349 (‘‘a person may have the mental capacity necessary
to make a will although incapable of transacting business generally’’); Kunz
v. Sylvain, 159 Conn. App. 730, 741, 123 A.3d 1267 (2015) (‘‘less mental
capacity is required for the testator to make a will than to carry on business
transactions generally’’ (internal quotation marks omitted)). We further note
that other courts have held that a conservator cannot be given legal authority
to make testamentary dispositions for the conserved person both because
such rights are purely personal and because the conservator’s authority
extends only to the lifetime interests of the conserved person. See Citizens
State Bank & Trust Co. of Hiawatha v. Nolte, supra, 449; In re Estate of
Briley, 16 Kan. App. 2d 546, 549, 825 P.2d 1181 (1992).
18
The defendant did not address Elia’s capacity, testamentary or other-
wise, in any of its filings in the trial court in opposition to the motion
for summary judgment, focusing instead on the question of whether the
Connecticut revocable trust was part of the conservatorship estate. In its
briefs submitted to the Appellate Court, the defendant cast this issue as
whether Elia retained the capacity to contract and cited no cases relating
to testamentary capacity. Because the right to contract is not personal and
can be delegated to the conservator, the defendant’s Appellate Court brief
focused on the question of concurrent authority. We also note that, in its
brief to this court, the defendant does not provide any authority to support
its assumption that the creation of the Delaware irrevocable trust—which
was an inter vivos trust that permitted distributions both during Elia’s life-
time, to her and others, and upon her death—was a testamentary act. As
the concurring justice notes, there is authority to the contrary. See part I
of the concurring opinion; see also Cate-Schweyen v. Cate, 303 Mont. 232,
239–40, 15 P.3d 467 (2000) (discussing views expressed in § 26 of Restatement
(Second) of Trusts and §§ 33 and 88 of Am. Jur. 2d, Trusts). We note that
the dual aspects of the trust instrument in the present case, allowing for
present and future distributions, raises an interesting question as to whether
the execution of such an instrument might require action by both the conser-
vator and the conserved person, not as an act of concurrent authority but
jointly taken independent authority. We express no opinion on this question.
19
We note that a contrary conclusion was reached in Board of Regents
State Universities v. Davis, 14 Cal. 3d 33, 41, 533 P.2d 1047, 120 Cal. Rptr. 407(1975), but that court relied heavily on a statutory provision that implicitly
recognized that a conserved person retains power to contract, subject to
the conservator’s right to disaffirm unreasonable contracts other than those
involving the purchase of necessaries that cannot be disaffirmed. Notably,
the statute also provided a mechanism for the conservator to petition the
court when any doubt as to the propriety of the debt existed. See id.20
As we previously have indicated, the irrevocable trust at issue in the
present case was funded largely from a transfer of money from a preexisting
revocable trust and, to a lesser extent, from conservatorship estate accounts.
The defendant contended throughout the proceedings below that Seblatnigg,
as conservator of the estate, had no authority over the assets in the Connecti-
cut revocable trust because, in the defendant’s view, trusts created prior to
a conservatorship are not part of the conservatorship estate. The Appellate
Court concluded that it was not required to reach this claim because, even
if Seblatnigg had no control over the revocable trust and thus lacked author-
ity to transfer funds from that trust into the Delaware irrevocable trust,
Elia lacked the legal capacity to create the irrevocable trust. See Day v.
Seblatnigg, supra, 186 Conn. App. 506 n.10. Because we did not grant certifi-
cation on the question of whether a voluntarily conserved person has the
legal authority to create a trust using funds from a preconservatorship trust
and the defendant has inadequately briefed the issue, we decline to address it.