Technically Unjust

Rick Green of the Hartford Courant is a vocal critic of the Connecticut Probate Courts. He reported on the terrible injustice done to Daniel Gross. Several years ago, even though he was a New York resident, Daniel Gross was held against his will in a Connecticut nursing home for 10 months when he fell ill in while visiting in Connecticut. Judge Joseph Gormley determined that this was "a terrible miscarriage of justice" and allowed Daniel to return home.

Another instance here.

On July 13, 2006, Judge Gormley said about jurisdiction:

"The statute is absolutely clear that you can't appoint a conservator of someone's person unless that person is domiciled in the state of Connecticut or resides in the state of Connecticut."

"This gentleman ... has never lived in the state of Connecticut, has lived and raised his three children in New York, his only assets were in New York, his house and his bank account, his driver's license is in New York, his registration is New York, his mail goes to New York. There is to me not a scintilla of evidence supporting residency."

"You can't appoint a conservator of the person for someone who lives out of state... the man lives somewhere else."

Now just this month comes the Story of a 96-year-old Michigan woman. When a daughter from Ohio came to visit her, she became concerned for her well-being. The daughter moved her from Michigan to an assisted-living facility in Ohio. She then filed a motion to become her guardian. Ohio law does not allow for the appointment of a guardian that lives outside the state. A second daughter objected challenging Ohio's jurisdiction.

The question at the heart of the dispute is whether the mother left Michigan voluntarily and if she had the intention to reside in Ohio.

In a 4-3 decision, the objecting daughter was found to lack standing to bring the case because of a failure to file a motion to intervene in the earlier litigation. Their justification was basically that the rules for intervention allow a court to maintain control of the proceedings. Creating a guardianship can involve many people, family, friends, neighbors, etc., and it can get out of hand.

A rebuttal that was complete and at times heart-felt challenged the majority assertion, claimed it didn't even use the right case law, and failed to construe the Rules of Appellate Procedure correctly.

"This court has consistently adhered to the policy of exercising all proper means to prevent the loss of valuable rights when the validity of a notice to appeal is challenged solely on technical, procedural grounds."

The judges felt it unjust and inequitable to prevent the daughter from challenging the lower court proceedings.

An attorney, who was not the guardian ad litem, appeared at the proceedings below representing the ward and stated that his client had indicated that she would prefer to return to Michigan and have her affairs handled by her daughter Jenny.

"She is concerned that her mother was removed from her home and forced to live out the rest of her days in a strange location. Anyone with an elderly parent can imagine the pain of seeing that parent held against her will; I consider Hull to be aggrieved by the lower court decision."

One of the problems this case brings up is the incentive an Ohio resident has to move a parent to Ohio to prevent a non-Ohio sibling from being eligible to serve as guardian. “We should not wait for the General Assembly to address this problem. Our legal system should help resolve family conflict, not provide a ready avenue to exacerbate it.”

The decision also prevented a case that the objecting daughter filed in Michigan to decide the issue of the mother's residence, which really was at the heart of the dispute.