Opinion
No. HHD-CV-09-4043152 S
November 12, 2010
MEMORANDUM OF DECISION ON PROBATE APPEAL
I. FACTUAL AND PROCEDURAL BACKGROUND
This case is an appeal from a February 13, 2009 decision and order of the Glastonbury Probate Court designating the plaintiff, George Bunker, and his sister, Elizabeth G. Bunker, as co-conservators of the person of their mother, Elizabeth Frances Bunker ("Mrs. Bunker"), and Attorney Daniel Dwyer of Glastonbury as conservator of Mrs. Bunker's estate. The plaintiff's grounds for appeal are that the Probate Court erred, abused its discretion or exceeded its authority because it: (1) failed to make a finding that Mrs. Bunker was due tax refunds; (2) ordered the plaintiff to submit an accounting; (3) ignored Mrs. Bunker's wishes that the plaintiff be her caregiver and the "principal beneficiary of her home during her lifetime, including commingling her income with his and mortgage financing," by appointing Elizabeth G. Bunker as co-conservator of Mrs. Bunker's person and Attorney Dwyer as conservator of her estate; (4) lacks subject matter jurisdiction; and (5) allowed the plaintiff's due process rights to be violated.
Although the plaintiff does not rely on this ground in his motion for appeal, he presents arguments regarding subject matter jurisdiction in his brief.
On December 16, 2008, Mrs. Bunker's three daughters, Anne F. Bunker, Eleanor V. Bunker and Elizabeth G. Bunker, filed an application with the Glastonbury Probate Court for appointment of a conservator of Mrs. Bunker's person and estate. In support of their application, the applicants filed several physician's reports prepared by a licensed, practicing psychiatrist plus personal written statements concerning their mother's deteriorating condition. The plaintiff also filed a written statement expressing his position regarding the application.
On January 7, 2009, the Probate Court held a hearing, where it found by clear and convincing evidence: (a) that it had jurisdiction to consider the application; (b) that Mrs. Bunker was a resident and domiciliary of Glastonbury; (c) that Mrs. Bunker had received notice of the application in accordance with statutory requirements; (d) that she had been advised of her right to counsel, and in fact was represented both by court-appointed counsel and her own private counsel; and (e) and that she attended the hearing.
At the hearing, Mrs. Bunker's daughters offered information to the Probate Court about unsanitary and unkempt conditions in Mrs. Bunker's home, her deteriorating memory and ability to communicate, her untimely tax filings, and other financial transactions that they believed not to have been in her best interests. The Court questioned Mrs. Bunker and received information from the plaintiff and Attorney Gordon Bednarz. Attorney Bednarz filed an appearance for Mrs. Bunker, although she had no recollection of having engaged him. Accordingly, Mrs. Bunker was also represented at the hearing by a court-appointed attorney, Thomas P. Kane. After the hearing, the Court allowed each sibling to submit whatever additional information or personal statements they deemed relevant to the pending application. The plaintiff submitted several physician's reports regarding Mrs. Bunker's mental and physical condition.
The Probate Court considered the medical evidence, testimony at the hearing, written statements and information, a report from the State of Connecticut Department of Social Services, and its own interaction with Mrs. Bunker. On that basis it found, by clear and convincing evidence, that Mrs. Bunker suffers from a mental condition that results in her being unable to receive and evaluate information or make or communicate decisions to such an extent that she is unable, even with appropriate assistance, to meet the essential requirements for her personal needs and to perform functions inherent in managing her financial and property affairs and that she may have property wasted or dissipated unless adequate property management and oversight is provided for her sole benefit. In its memorandum of decision, the Court stated that it was "reasonably satisfied that with respect to her personal needs, mental and physical treatment, medical attention and general living arrangements, while not without room for improvement, [the plaintiff] has acted in his mother's best interests and is in the best position to continue to share responsibility for his mother's medical and personal needs. However, the relationship between [the plaintiff] and his sisters is not as healthy and trusting as would be best for Mrs. Bunker." Mrs. Bunker's December 23, 2004 power of attorney, which named the plaintiff as sole conservator, was not acceptable to the Court and, having considered all the factors set forth in General Statutes § 45a-650(h), it appointed the plaintiff and his sister, Elizabeth G. Bunker, to serve as co-conservators of the person of Mrs. Bunker and retained the authority to resolve disputes between the co-conservators.
Section 45a-650(h) provides, in relevant part: "In considering who to appoint as conservator, the court shall consider (1) the extent to which a proposed conservator has knowledge of the respondent's or conserved person's preferences regarding the care of his or her person or the management of his or her affairs, (2) the ability of the proposed conservator to carry out the duties, responsibilities and powers of a conservator, (3) the cost of the proposed conservatorship to the estate of the respondent or conserved person, (4) the proposed conservator's commitment to promoting the respondent's or conserved person's welfare and independence, and (5) any existing or potential conflicts of interest of the proposed conservator."
The Probate Court also applied the factors listed in § 45a-650(h) to its following factual findings: a failure to file tax returns; "the necessity for an accounting of funds expended in accordance with actions by [the plaintiff] acting as attorney-in-fact for [his] mother, and a general disorganization and potential dissipation of Mrs. Bunker's assets." In consideration of those factors, the court appointed Attorney Dwyer to serve as conservator of Mrs. Bunker's estate and ordered him to secure an accounting from the plaintiff in his capacity as attorney-in-fact for Mrs. Bunker and file a report of the accounting within 180 days of February 13, 2009.
On March 26, 2009, the plaintiff filed the instant appeal. On April 23, 2009, Attorney Dwyer filed a motion in Probate Court to compel the plaintiff to provide him with the Court-ordered accounting. The Probate Court held a hearing on the motion on May 12, 2009, in which it ordered the plaintiff to submit, by July 7, 2009, an accounting for the period from his appointment as attorney-in-fact for Mrs. Bunker through February 13, 2009. On May 19, 2009, Attorney John T. Forrest entered an appearance on behalf of the plaintiff. On May 22, 2009, the plaintiff filed a request with the Superior Court for leave to amend his appeal. The request was granted by agreement of the parties on October 29, 2009. On June 8, 2009, the plaintiff filed a motion in this Court to stay the Probate Court order for an accounting on the ground that he had never acted as attorney-in-fact for Mrs. Bunker. The motion was granted by agreement of the parties on October 29, 2009. Also on June 8, 2009, the plaintiff filed a motion, with no supporting memorandum, in this Court to dismiss the conservatorship proceedings. On June 23, 2009, the Court denied the motion without prejudice. On April 29, 2010, the plaintiff filed a brief in support of his appeal and, on June 18, 2010, Attorney Dwyer filed a brief in opposition. Oral argument was scheduled in Superior Court for September 8, 2010. On September 3, 2010, Attorney Forrest filed a motion for a continuance, which was denied. On September 8, 2010, Attorney Dwyer appeared at the hearing with Attorney Donna D. Convicer, who appeared in place of Attorney Forrest but was not sufficiently familiar with the case to present arguments before the Court. Both attorneys stated that they had not expected to argue the appeal on that day, and Attorney Dwyer stated that he had expected the matter to be decided on the basis of the parties' briefs. At the Court's request, Attorney Convicer telephoned Attorney Forrest during a recess in the hearing. She relayed Attorney Forrest's agreement to have the matter decided on the papers.
II. STANDARD OF REVIEW
"Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may . . . appeal therefrom to the Superior Court." General Statutes § 45a-186. "An appeal from an order, denial or decree made after a hearing on the record shall be heard by the Superior Court without a jury . . . The appeal shall be confined to the record. If alleged irregularities in procedure before the court of probate are not shown in the record or if facts necessary to establish such alleged irregularities in procedure are not shown in the record, proof limited to such alleged irregularities may be taken in the Superior Court. The Superior Court, on request of any party, shall hear oral argument and receive written briefs." General Statutes § 45a-186a(c).
"In an appeal taken under section 45a-186 from a matter heard on the record in the Court of Probate, the Superior Court shall not substitute its judgment for that of the Court of Probate as to the weight of the evidence on questions of fact. The Superior Court shall affirm the decision of the Court of Probate unless the Superior Court finds that substantial rights of the person appealing have been prejudiced because the findings, inferences, conclusions or decisions are: (1) In violation of the federal or state constitution or the general statutes, (2) in excess of the statutory authority of the Court of Probate, (3) made on unlawful procedure, (4) affected by other error of law, (5) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record, or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the Superior Court finds such prejudice, the Superior Court shall sustain the appeal and, if appropriate, may render a judgment that modifies the Court of Probate's order, denial or decree or remand the case to the Court of Probate for further proceedings. For the purposes of this section, a remand is a final judgment." General Statutes § 45a-186b.
III. PLAINTIFF'S GROUNDS FOR APPEAL
A. Tax Returns
The plaintiff's appeal contains a confusing statement that appears to present the claim that the Probate Court erred in considering the plaintiff's failure to timely file tax returns for Mrs. Bunker because the Court made no finding that she was owed tax refunds. The plaintiff failed, however, to address this ground in his brief.
"[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly . . . It is not the role of this court to undertake the legal research and analyze the facts in support of a claim or argument when it has not been briefed adequately . . . Accordingly, we decline to review [this claim]." (Citation omitted; internal quotation marks omitted.) Blacker v. Crapo, 112 Conn.App. 795, 803 n. 6, 964 A.2d 1241, cert. denied, 291 Conn. 915, 970 A.2d 727 (2009).
B. Accounting
In its memorandum of decision and order of February 13, 2009, the Probate Court stated that a necessity exists for an accounting of funds expended in accordance with the plaintiff's actions as an attorney-in-fact for Mrs. Bunker and ordered Attorney Dwyer to secure such an accounting from the plaintiff. On May 12, 2009, after a hearing on Attorney Dwyer's motion to compel, the Probate Court ordered the plaintiff to submit an accounting. The plaintiff argues that the Probate Court exceeded its authority when it ordered him to submit the accounting because the Court's authority to order an accounting is derived from General Statutes § 45a-175, which applies to attorneys-in-fact. He contends that because he thought the designation of conservator in Mrs. Bunker's power of attorney was to be used only when his mother was deemed incompetent, he never acted as her attorney-in-fact. He also claims that he did not know that the power of attorney existed.
Section 45a-175 provides, in relevant part: "(a) Courts of probate shall have jurisdiction of the interim and final accounts of . . . conservators . . . and, to the extent provided for in this section, shall have jurisdiction of accounts of the actions of . . . attorneys-in-fact acting under powers of attorney."
Attorney Dwyer counters that prejudice to the plaintiff is a prerequisite for an appeal from Probate Court and the plaintiff was not prejudiced by the order for an accounting. Attorney Dwyer contends that at the May 12, 2009 hearing, the plaintiff's attorney acknowledged the plaintiff's obligation to provide an accounting, and the plaintiff is bound by the concessions of his attorney. The plaintiff also acknowledged his obligation to account by providing some financial records and offering to provide the Court with any documents or information the Court required. These actions, Attorney Dwyer claims, constituted a waiver of the plaintiff's right to claim that the order was inappropriate. Alternatively, Attorney Dwyer argues that even if the plaintiff was prejudiced by the order for an accounting, the Probate Court had the authority to order it under General Statutes § 45a-98.
Here, the Probate Court made a factual finding that the plaintiff acted as attorney-in-fact for Mrs. Bunker. "The legal effect of a power of attorney cannot be altered by proof of what one or both parties understood the legal effect to be." Long v. Schull, 184 Conn. 252, 257, 439 A.2d 975 (1981) (defendant's claim that decedent's power of attorney was actually misnamed document indicating her intent to make gift was without merit). The plaintiff's argument that he did not know the power of attorney was operative cannot alter its legal effect, which was to confer the powers and obligations of an attorney-in-fact on the plaintiff.
Section 45a-175 states, in pertinent part, "(b) . . . the grantor of such power of attorney or his legal representative may make application to the court of probate . . . for submission to the jurisdiction of the court of an account for allowance of the . . . attorney's actions under such . . . power." General Statutes § 45a-98 provides, in relevant part: "(a) Courts of probate in their respective districts shall have the power to . . . (3) . . . determine title or rights of possession and use in and to any real, tangible or intangible property that constitutes, or may constitute, all or part of . . . any estate under control of a . . . conservator, which trust or estate is otherwise subject to the jurisdiction of the Probate Court . . . (6) to the extent provided for in section 45a-175, call . . . conservators . . . and attorneys-in-fact acting under powers of attorney created in accordance with section 45a-562, to account concerning the estates entrusted to their charge; and (7) make any lawful orders or decrees to carry into effect the power and jurisdiction conferred upon them by the laws of this state." "[T]he jurisdiction of a probate court to order an accounting from an attorney-in-fact is subject to the following two limitations: (1) the power of attorney under which the attorney-in-fact acts must have been created in accordance with section 45a-562; and (2) the probate court's exercise of jurisdiction must fall within the circumstances delineated by section 45a-175." In re Bachand, Superior Court, judicial district of Hartford, Docket No. CV 09 4041883 [ 50 Conn. L. Rptr. 429] (July 27, 2010, Prescott, J.).
General Statutes § 45a-562 provides: "Power of attorney to survive disability or incompetence. (a) The subsequent disability or incompetence of a principal shall not revoke or terminate the authority of any person who acts under a power of attorney in a writing executed by the principal, if the writing contains the words `this power of attorney shall not be affected by the subsequent disability or incompetence of the principal,' or words of similar import showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's subsequent disability or incompetence; provided the power of attorney is executed and witnessed in the same manner as provided for deeds in section 47-5. (b) If a conservator of the estate of the principal is appointed after the occurrence of the disability or incompetence referred to in subsection (a) of this section, the power of attorney shall cease at the time of the appointment, and the person acting under the power of attorney shall account to the conservator rather than to the principal."
The parties do not dispute the fact that on December 23, 2004, Mrs. Bunker executed a power of attorney that named the plaintiff as her attorney-in-fact. The Probate Court found that the plaintiff was Mrs. Bunker's attorney-in-fact. General Statutes § 45a-186b provides, in pertinent part: "the Superior Court shall not substitute its judgment for that of the Court of Probate as to the weight of the evidence on questions of fact," and the plaintiff does not contend that the power of attorney was not made in accordance with § 45a-562. Second, Attorney Dwyer, Mrs. Bunker's legal representative, filed a motion in Probate Court to compel the plaintiff to provide him with the court-ordered accounting. Even if the Probate Court lacked jurisdiction to order the plaintiff to account before Attorney Dwyer's motion to compel was filed, once the motion was filed, it acquired the statutory jurisdiction to order the plaintiff to submit an accounting under §§ 45a-175(b) and 45a-98(a)(6). It also has the power to determine the rights of possession and use of Mrs. Bunker's estate and to make any lawful orders or decrees necessary to exercise this power under General Statutes §§ 45a-98(3) and (7). The plaintiff has not met his burden to show that the Probate Court lacks jurisdiction to order the plaintiff to account concerning Mrs. Bunker's estate.
C. Appointment of Elizabeth G. Bunker and Attorney Dwyer
In his motion, the plaintiff contends that the Probate Court abused its discretion by designating Elizabeth G. Bunker as co-conservator of the person of Mrs. Bunker because the designation was contrary to Mrs. Bunker's wishes, as expressed in her power of attorney. In his memorandum, the plaintiff argues that under the changes to probate court procedures that were enacted in 2007, a probate court must consider legal documents that were executed by conserved persons to take effect upon their incapacity and are required to honor such appointments unless the nominee is unwilling or there is substantial evidence to disqualify the nominee. The plaintiff contends that, because Mrs. Bunker's 2004 power of attorney revoked a previous power of attorney in which Mrs. Bunker had named Elizabeth G. Bunker as her attorney-in-fact, Mrs. Bunker's wishes are for the plaintiff to act as her attorney-in-fact and for Melissa Jude Scavetta to act as successor attorney-in-fact. The plaintiff claims that the Probate Court erred by failing to inquire into Ms. Scavetta's status or qualifications and the court acted in excess of its statutory authority, in abuse of its discretion or in unwarranted exercise of discretion by appointing Attorney Dwyer because there is a significant expense involved compensating an attorney-conservator. Attorney Dwyer responds that the Superior Court lacks subject matter jurisdiction to decide this issue because the plaintiff has not been aggrieved or prejudiced by the Probate Court's appointments of Elizabeth G. Bunker and Attorney Dwyer as conservators and the appointments were reasonable. "The responsibility for alleging a factual basis for aggrievement for the purpose of taking a probate appeal falls squarely on the person taking the appeal." Doyle v. Abbenante, 89 Conn.App. 658, 663, 875 A.2d 558, cert. denied, 276 Conn. 911, 886 A.2d 425 (2005). "We begin by noting that the right to appeal from the decision of a Probate Court is statutorily conferred by [General Statutes § 45a-186, and] the absence of aggrievement, as required by that statute, is a defect that deprives the Superior Court of jurisdiction to entertain the appeal." (Internal quotation marks omitted.) Adolphson v. Weinstein, CT Page 22253 66 Conn.App. 591, 595, 785 A.2d 275 (2001), cert. denied, 259 Conn. 921, 792 A.2d 853 (2002).
Ms. Scavetta did not participate in any of these proceedings.
Section 45a-186 provides, in pertinent part: "(a) Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may . . . appeal therefrom to the Superior Court."
"The concept of standing, as presented by the question of aggrievement, is a practical and functional one designed to assure that only those with a genuine and legitimate interest can appeal an order of the Probate Court . . . In order to establish standing to appeal from a probate matter, a party must show that he or she is `aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law . . .' General Statutes § 45a-186(a). The test for determining whether a party has been aggrieved by a Probate Court decision is whether there is a possibility, as distinguished from a certainty, that some legally protected interest that [the party] has in the estate has been adversely affected . . . This interest may be a direct pecuniary one, or it may consist of an injurious effect upon some legally protected right or status of the appellant . . . We have interpreted § 45a-186(a) to require that the decision of the Probate Court must have affected a party's interest in the estate in order for that party to have standing to appeal the court's order. See, e.g., Ins. Co. of North America v. Dragat, 165 Conn. 207, 211, 332 A.2d 103 (1973) (holding that plaintiff failed to show aggrievement where claimed interest was `right to be protected against speculative damages based on an independent contract between it and [the admistratrix], individually, and not based on any legally protected interest it claimed to have in this estate'); Bridgeport v. Steiber, 143 Conn. 720, 723, 126 A.2d 823 (1956) (concluding that plaintiffs were not aggrieved by Probate Court decree where claimed interest was `right to be protected from having claims made against them in court')." (Citations omitted; emphasis in original; internal quotation marks omitted.) McBurney v. Cirillo, 276 Conn. 782, 820-21, 889 A.2d 759 (2006), overruled on other grounds by Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 914 A.2d 996 (2007). "Merely possessing a legal interest in the estate, however, is not enough to confer standing upon a party. In order to show aggrievement, that party must show that the legal interest was adversely affected." Id., 822. "[B]eing an heir does not automatically establish aggrievement for the purposes of a probate appeal." Flor v. Pohl, 95 Conn.App. 555, 558, 899 A.2d 46 (2006).
One case in which the son of a conserved person was found to be aggrieved by the appointment of a conservator is Marchentine v. Brittany Farms Health Center., Inc., 84 Conn.App. 486, 491, 854 A.2d 40 (2004). In that case, a combination of factors resulted in a possible adverse effect on the son's possible legal interest in his relationship with his mother, who was the conserved person, where the son was an only child and sole heir who had previously been granted a power of attorney by his mother, he was not motivated solely by financial concerns, the applicant for appointment of conservator was a nursing home, and the son had not been given an opportunity to be heard. Id.
In contrast, a plaintiff who was the grandson of a conserved person was not aggrieved because, among other reasons, the "plaintiff [had] no legally protected interest in the estate of [his grandmother] solely by virtue of his blood relationship to her as her grandson or because of any putative inheritance which may come to him, after her death, by will or intestacy." Doyle v. Reardon, 11 Conn.App. 297, 304, 527 A.2d 260 (1987). Similarly, "the plaintiff's status as the daughter of the ward and the subject of a specific bequest in the ward's will was insufficient to confer on her the standing necessary to maintain her appeal." Schiavone v. Snyder, 73 Conn.App. 712, 714 n. 4, 812 A.2d 26 (2002).
Here, the plaintiff has expressed a concern with the potential depletion of Mrs. Bunker's estate due to the necessity of compensating Attorney Dwyer. This concern is similar to that of the plaintiffs in Doyle v. Reardon, supra, 11 Conn.App. 304 and Schiavone v. Snyder, supra, 73 Conn.App. 714, but does not constitute aggrievement, which is necessary to bring this claim. The plaintiff does not cite any authority for the proposition that he has any other legal interest in Mrs. Bunker's estate. The plaintiff is a co-conservator of the person of Mrs. Bunker and remains free to continue his filial relationship with her. Because the plaintiff has not met his burden to show that he has been aggrieved by the appointments of Elizabeth G. Bunker or Attorney Dwyer, or the failure to appoint Ms. Scavetta, he has no standing to challenge these appointments.
Further, the Probate Court made factual findings that constitute substantial evidence to disqualify the plaintiff as attorney-in-fact. Section 45a-650(h) provides, in relevant part: "In considering who to appoint as conservator, the court shall consider (1) the extent to which a proposed conservator has knowledge of the respondent's or conserved person's preferences regarding the care of his or her person or the management of his or her affairs, (2) the ability of the proposed conservator to carry out the duties, responsibilities and powers of a conservator, (3) the cost of the proposed conservatorship to the estate of the respondent or conserved person, (4) the proposed conservator's commitment to promoting the respondent's or conserved person's welfare and independence, and (5) any existing or potential conflicts of interest of the proposed conservator."
As discussed in part I, supra, regarding the appointment of Elizabeth G. Bunker and the plaintiff as co-conservators of Mrs. Bunker's person, the Probate Court applied the factors listed in § 45a-650(h) to its finding that Mrs. Bunker is unable to meet the essential requirements for her personal needs. The Probate Court stated that it was "reasonably satisfied that with respect to her personal needs, mental and physical treatment, medical attention and general living arrangements, while not without room for improvement, [the plaintiff] has acted in his mother's best interests and is in the best position to continue to share responsibility for his mother's medical and personal needs. However, the relationship between [the plaintiff] and his sisters is not as healthy and trusting as would be best for Mrs. Bunker." In consideration of those factors, the court appointed Elizabeth G. Bunker and the plaintiff, as co-conservators of Mrs. Bunker's person.
Regarding the appointment of Attorney Dwyer as conservator of Mrs. Bunker's estate, the Probate Court made the following factual findings: that Mrs. Bunker is unable to perform functions inherent in managing her financial and property affairs, and that she may have property wasted or dissipated unless adequate property management and oversight is provided for her sole benefit. It then applied the factors set forth in § 45a-650(h) to the following facts: there has been a failure to file tax returns, there is a "necessity for an accounting of funds expended in accordance with actions by [the plaintiff] acting as attorney-in-fact for [his] mother, and a general disorganization and potential dissipation of Mrs. Bunker's assets." In consideration of those factors, the court appointed Attorney Dwyer to serve as conservator of Mrs. Bunker's estate.
The Probate Court based its decision on the factors required by § 45a-650(h), as applied to its findings of fact. The plaintiff has not met his burden of showing that he was aggrieved, that the Probate Court abused its discretion or acted in excess of its authority by making these appointments, or that its appointments were clearly erroneous.
D. Jurisdiction
Although the plaintiff does not discuss this issue in his motion for appeal, in his brief he argues that the Probate Court lacks jurisdiction over this matter because Mrs. Bunker's daughters failed to provide notice, which the plaintiff believes is required by General Statutes § 45a-593, to the Administrator of Veteran's Affairs (VA). Attorney Dwyer responds that § 45a-593 must be read in conjunction with General Statutes §§ 45a-649(a)(2), (3) and (5); and the logical conclusion to be drawn from those statutes is that the legislature did not intend the absence of the VA to deprive the Probate Court of jurisdiction over conservatorship proceedings.
"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, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . ." (Internal quotation marks omitted.) Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102, 109, 942 A.2d 396 (2008). "A court must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation . . . Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body." (Internal quotation marks omitted.) Blakeman v. Planning Zoning Commission, 82 Conn.App. 632, 639, 846 A.2d 950, cert. denied, 270 Conn. 905, 853 A.2d 521 (2004). "We are obligated . . . to read statutes together when they relate to the same subject matter." (Internal quotation marks omitted.) Jones v. Mansfield Training School, 220 Conn. 721, 728, 601 A.2d 507 (1992).
Section 45a-593, which applies to protected persons, provides, in pertinent part: "(b) The Administrator of Veterans' Affairs . . . shall be an interested party in the administration of the estate of any ward or conserved person on whose account the benefits are payable or whose estate includes assets derived from benefits paid by the Veterans' Administration . . . (c) Written notice shall be given by regular mail, unless waived in writing, to the division of the office of the Veterans' Administration . . . of the time and place for a hearing on any petition or pleading or in connection with any proceeding pertaining to or affecting in any manner the administration of the estate of any beneficiary of the Veterans' Administration. Notice shall be mailed in time to reach such office not less than ten days before the date of the hearing or other proceeding."
Section 45a-649(a)(2), which applies to conservators of protected persons and their property, provides: "The court shall direct that personal service of the citation be made . . . upon the following: The respondent and the respondent's spouse, if any, if the spouse is not the applicant, except that in cases where . . . there is no spouse, the court shall order notice by certified mail to the children of the respondent and if none, the parents of the respondent and if none, the brothers and sisters of the respondent or their representatives, and if none, the next of kin of such respondent."
Section 45a-649(a)(3) provides "The court shall order such notice as it directs to the following: (A) The applicant; (B) the person in charge of welfare in the town where the respondent is domiciled or resident . . . (C) the Commissioner of Social Services . . . (D) the Commissioner of Veterans' Affairs if the respondent is receiving veterans' benefits or the Veterans' Home, or both, if the respondent is receiving aid or care from such home, or both; (E) the Commissioner of Administrative Services . . . (F) the children of the respondent and if none, the parents of the respondent and if none, the brothers and sisters of the respondent or their representatives; (G) the person in charge of the hospital, nursing home or some other institution . . ." Section 45a-649(a)(5) provides: "If personal service of the notice required in subsection (b) of this section is not made as required in subdivision (2) of this subsection, the court shall be deprived of jurisdiction over the application."
General Statutes § 45a-649(b) provides, in pertinent part: "(b) The notice required by subdivision (2) of subsection (a) of this section shall specify (A) the nature of involuntary representation sought and the legal consequences thereof, (B) the facts alleged in the application, (C) the date, time and place of the hearing, and (D) that the respondent has a right to be present at the hearing and has a right to be represented by an attorney of the respondent's choice at the respondent's own expense. The notice shall also include a statement [explaining, in a specified font size and prescribed language, the possible consequences to the conserved person of the appointment of a conservator]."
Sections 45a-649 and 45a-593 are both set forth under title 45a "Probate Courts and Procedure," chapter 802h, "Protected Persons and Their Property." Part four of chapter 802h contains § 45a-649 and is entitled "Conservators," and part one of chapter 802h contains § 45a-593 and is entitled, "Protected Persons in General." The statutory provisions at issue were all amended or adopted in the same legislative session. Public Acts 2007, No. 07-116, §§ 8, 14. Because these statutes "relate to the same subject matter;" Jones v. Mansfield Training School, supra, 220 Conn. 728; and title 45a, chapter 802h must be read "as a whole, with a view toward reconciling its separate parts"; Blakeman v. Planning and Zoning Commission, supra, 82 Conn.App. 639; the court is required to consider §§ 45a-649(a)(2), (3) and (5) together with § 45a-593.
The legislature could have included the VA in § 45a-649(a)(2), as a party that must be served for the court to acquire jurisdiction. The legislature also had the option of adding the VA to § 45a-649(a)(5), which would have had the effect of causing it to be a party that must be served for the court to acquire jurisdiction. Contrary to the plaintiff's arguments, under the statutes as written, lack of service on the persons listed in § 45a-649(a)(2) deprives the Probate Court of jurisdiction while lack of notice to the VA, which is listed in § 45a-593 and § 45a-649(a)(3), does not.
"The nonjoinder of a party implicates the court's subject matter jurisdiction and therefore requires dismissal if a statute mandates the naming and serving of the party." (Emphasis in original.) Sullivan v. Thorndike, 104 Conn.App. 297, 301, 934 A.2d 827 (2007), cert. denied, 285 Conn. 907, 942 A.2d 415 and 285 Conn. 908, 942 A.2d 416 (2008). "The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the statutory provision is mandatory . . . If, however, the . . . provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory . . . Definitive words, such as must or shall, ordinarily express legislative mandates of nondirectory nature . . . As we recently noted, the word shall creates a mandatory duty when it is juxtaposed with [a] substantive action verb." (Citation omitted; internal quotation marks omitted.) Wiseman v. Armstrong, 295 Conn. 94, 100-01, 989 A.2d 1027 (2010). "The purpose of the [conservator] statutes is to safeguard the interests of anyone who would squander and waste his estate if allowed to manage it . . . and that the basic purpose is to make necessary provision for the incapable person during his life or disability." (Citation omitted, internal quotation marks omitted.) McLaughlin v. Smoron, Superior Court, judicial district of New Britain, Docket No. CV 92 453298, (May 21, 1999, Robinson, J.), aff'd, 62 Conn.App. 367, 771 A.2d 201 (2001).
Rule 3.1.02 of the Connecticut Probate Rules for Practice and Procedure defines interested parties as "persons, agencies or institutions who shall appear to the court of probate to be legitimately interested in the welfare of the respondent." Under case law, "[n]ecessary parties . . . are those [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may . . . do complete justice, by adjusting all the rights involved in it . . . [B]ut if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable . . . A party is deemed necessary if its presence is absolutely required in order to assure a fair and equitable trial." (Citations omitted; internal quotation marks omitted.) In re Devon B., 264 Conn. 572, 579-80, 825 A.2d 127 (2003). In § 45a-593(b), the legislature designated the VA as an "interested party," not as a "necessary party."
"In the past, there had been a distinction between `necessary' and `indispensable' . . . Over time, however, this distinction has become less pronounced . . . and provisions of our Practice Book and General Statutes currently refer only to necessary parties." (Citations omitted.) In re Devon B., 264 Conn. 572, 580 n. 12, 825 A.2d 127 (2003).
The plaintiff does not cite a statute mandating that the VA be named as a party and served with process. Section 45a-593(b) refers to the VA as an interested party, not as a necessary party. The essence of the conservatorship proceeding was to determine whether it was in Mrs. Bunker's best interest to have a conservator appointed and, if so, to designate one or more persons to act as conservator. Because notice to the VA was not essential to the purpose of the proceeding, or necessary to ensure a fair hearing, the use of the word "shall" in § 45a-593(c) is directory rather than mandatory, and the plaintiff has not shown that lack of notice to the VA deprived the Probate Court of jurisdiction over the conservatorship proceedings.
E. Due Process
The plaintiff argues that the Probate Court allowed his due process right to a fair hearing to be violated by permitting his siblings to constantly interrupt his testimony during the conservatorship hearing. Attorney Dwyer responds that the plaintiff's due process rights were not violated because has not alleged that his sisters' conduct at the hearing prevented him from introducing any evidence or arguments, he submitted two letters and documentation about Mrs. Bunker's financial accounts to the court after the hearing and the court placed no restrictions on the nature of his post-hearing submissions.
"The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner . . . In reviewing a procedural due process claim, we must first determine whether a protected liberty or property interest is involved. If it is, then we must determine the nature and extent of the process due." (Citation omitted; internal quotation marks omitted.) In re Tayler F., 296 Conn. 524, 553, 995 A.2d 611 (2010).
Here, the plaintiff has no liberty or property right that was affected by the probate proceedings. The court order for an accounting of Mrs. Bunker's finances cannot violate the plaintiff's due process rights because, as discussed in part III B, supra, the Probate Court has jurisdiction to order the plaintiff to submit an accounting. With respect to the appointments of conservators for Mrs. Bunker, the plaintiff was afforded the opportunity to be heard: he filed a written statement before the conservatorship hearing and testified at the hearing. His request to submit additional financial and personal information after the hearing was granted, and he submitted several written reports from Mrs. Bunker's physicians. The Probate Court considered all of the evidence before it, before issuing its decision. The plaintiff has not met his burden of showing that the Probate Court proceedings deprived him of any liberty or property right.
IV. CONCLUSION
The record shows that there was no error in the Probate Court proceedings. The plaintiff has not met his burden of showing that the Probate Court lacked jurisdiction to order him to submit an accounting, that he has been aggrieved by the appointments of Elizabeth G. Bunker or Attorney Dwyer, that the appointments were made without substantial evidence, that lack of notice to the VA deprived the court of jurisdiction, or that he was deprived of any liberty or property right. For all of these reasons, the Court concludes that the plaintiff's appeal is without merit and must be DISMISSED.