Cross v. Hudon

¶1concurring. I concur in the result reached by the majority but do not agree with its analysis of the issue concerning the propriety of an action between a guardian and her ward.1 The trial court should have applied the “general rule that an action at common law cannot be maintained between a guardian and a ward while that relationship exists.” Caron v. Adams, 33 Conn. App. 673, 681, 638 A.2d 1073 (1994); 39 Am. Jur. 2d, Guardian and Ward § 160. One who stands in a fiduciary relationship to another should not by legal action destroy that trust as long as the fiduciary relationship exists. Briggs v. Briggs, 162 Tex. 177, 181— *7082, 346 S.W.2d 106 (1961). If the plaintiff wanted to sue her ward, she should have resigned from her guardianship before bringing the action.

¶2For a very practical reason, however, I do not urge reversal of this case. This action was commenced in March, 1989, scarcely five months before the death of the plaintiffs ward, at which time the guardianship terminated as a matter of law. See Kleinman v. Marshall, 192 Conn. 479, 483, 472 A.2d 772 (1984). This action continued and this appeal is pursued before us as an action by the former guardian against her mother’s estate. Such an action is proper and nothing would be achieved by dismissing it because the plaintiff was acting contrary to what I believe to be long-standing law when she commenced the suit.

¶3Accordingly, I concur with the majority.