Upload
others
View
3
Download
0
Embed Size (px)
Citation preview
Page 1 © Copyright 2013, All Rights Reserved.
_____________________________________________________________________
The Relationship between the Illinois Divorce and Probate Act
_____________________________________________________________________
Seminar Topic: In this course is an overview of some difficult issues that practitioners
face during the probate and estate process and the intersection of divorce. Those factors are difficult enough then introduce the representation of clients with diminished capacity and the lawyer is faced with the daunting task of maintaining a normal client-lawyer relationship with the client.
The program includes a discussion of proposed judgments with provisions for estate
administration cases, the need to consider beneficiary designations during the divorce and
other family law and probate law issues. Rule 1.14: Client with Diminished Capacity and the
lawyer’s role in maintaining a normal client-lawyer relationship is the underlying theme of
this seminar. A general understanding of the procedure involved in having a guardian of the
person and estate appointed for a disabled adult in Illinois will be discussed.
Probate law, estate planning, and family law are becoming even more specialized with the
newly enacted Illinois Probate Code provisions. Whether you are new to the divorce and
probate practice or a seasoned practitioner, this course helps you to broaden your approach
to divorce, probate, and estate planning and administration considerations with the
perspective of a family law attorney with thirty years’ experience.
This material is intended to be a guide in general. As always, if you have any specific question
regarding the state of the law in any particular jurisdiction, we recommend that you seek
legal guidance relating to your particular fact situation.
The course materials will provide the attendee with the knowledge and tools necessary to
identify the current legal trends with respect to these issues. The course materials are
designed to provide the attendee with current law, impending issues and future trends that
can be applied in practical situations.
Page 2 © Copyright 2013, All Rights Reserved.
Copyright © 2013 Printed in the United States of America. All rights reserved. No part of this
monograph may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, except for citation within legal documents filed with a tribunal, without permission in writing from the publisher.
Disclaimer: The views expressed herein are not a legal opinion. Every fact situation is different and the reader is encouraged to seek legal advice for their particular situation.
The Apex Jurist, www.ApexJurst.com is
Published by ApexCLE, Inc. www.ApexCLE.com
Ordering Information: Copies of this monograph may be ordered direct from the publisher for $24.95 plus
$4.25 shipping and handling. Please enclose your check or money order and shipping information. For educational, government or multiple copy pricing, please contact the publisher.
Library of Congress Cataloging-in-Publication Data
ApexCLE, Inc.
1. ApexCLE, Inc. 2. Law-United States – Guide-books. 3. Legal Guide 4. Legal Education.
119 South Emerson St., Suite 248 Mount Prospect, Illinois 60056 Toll Free 8666572004
920 South Spring Street Springfield, Illinois 62704
Toll Free 8666572004
Page 3 © Copyright 2013, All Rights Reserved.
Author’s Email Address: [email protected]
Author’s Website:
Author’s Mailing Address:
675 N. North Court, Suite 490
Palatine, IL 60067
Author’s Phone Number:
(847) 705-1300
(847) 750-6659
About The Author Mr. Cohen graduated from DePaul University with a Bachelor of Science and
Commerce degree, awarded with honor, in 1978. Mr. Cohen has been a member of the National Honors Accounting fraternity, Beta Alpha Psi, since 1977. Mr. Cohen became a Certified Public Accountant in 1980.
Mr. Cohen worked as an auditor for the public accounting firm of Altschuler,
Melvoin, and Glasser from 1977 until about June of 1980. Mr. Cohen has been a licensed practicing attorney at law in Illinois since 1983.
For over 29 years, Mr. Cohen has had his own law practice, and has
concentrated his practice in all aspects of family law. Since about 1996, he has been on the approved list of Child’s Representatives in the Circuit Court of Cook County, Illinois. Mr. Cohen has acted as a Guardian ad Litem and as a Child’s Representative in numerous contested custody cases in Cook County, Illinois. Over the years, Mr. Cohen has represented many men and women in all types of family law cases.
Mr. Cohen maintains his law office at 675 N. North Court, Suite 490, Palatine
Illinois 60067. Mr. Cohen can be reached by email, telephone, and fax at [email protected], (847) 705-1300, and (847) 705-6659
Page 4 © Copyright 2013, All Rights Reserved.
I. Ethically Rule 1.14
Before the discussion of the first hypothetical case let’s
mention rule 1.14 of the Illinois Rules of Professional Conduct of
2010. Rule 1.14 is relatively new in Illinois, and concerns the
representation of clients with diminished capacity and related
matters.
The last sentence of comment 4 of Rule 1.14 is particularly
germane to the discussion today. The sentence states that if the
lawyer represents the guardian as distinct from the ward, and is
aware that the guardian is acting adversely to the ward's interests,
the lawyer may have an obligation to prevent or rectify the
guardian's misconduct.
II. Case One
Our first hypothetical case will give you a general understanding of the procedure involved in having a guardian of the person and estate appointed for a disabled adult in Illinois.
The facts of our case are simple:
Nancy is 73 years old and a widow.
Nancy was married about 40 years, and never had any children.
Nancy's closest living relatives are her sister, Alice, and her brother, Bob.
Nancy recently had a severe stroke that has left her physically and mentally disabled.
Page 5 © Copyright 2013, All Rights Reserved.
Nancy's doctors have been cooperating with Bob; but have told Bob that he needs to have the Court appoint him as the guardian of Nancy's person and estate.
What steps do you have to take to have the Court appoint
Bob as the guardian of Nancy's person and estate?
Well, the first thing you should do is have Bob obtain a
written Report prepared by a licensed physician concerning
Nancy's physical and mental condition.
Section 5/1 la-9 of the Probate Act, provides that the Court
cannot conduct a hearing on Bob's petition for guardianship unless
the Court has received a report concerning Nancy's physical and
mental condition at least ten days before the hearing on Bob's
petition.
The Report must contain the following information:
A description of the nature and type of the
ward's disability and an assessment of how the
disability impacts on the ability of the ward to make
decisions or to function independently;
An analysis and results of evaluations of the
ward's mental and physical condition and, where
appropriate, educational condition, adaptive behavior
and social skills, which have been performed within 3
months of the date of the filing of the petition for the
appointment of a guardian of the person and estate
for the ward;
An opinion as to whether guardianship is
needed, the type and scope of the guardianship
Page 6 © Copyright 2013, All Rights Reserved.
needed, and the reasons for the guardianship; and
A recommendation as to the most suitable
living arrangement and, where appropriate, a
treatment plan for the ward and the reasons for that
plan.
The statute specifically provides that the Report is not part
of the public record of the case. Accordingly, you should not file
the Report in the case with the Clerk of the Court. Further, you
should not file any medical records concerning the ward in the
case with the Clerk of the Court. You should provide the Report
and any medical record concerning the ward directly to the Court.
In the course materials, you will find a copy of Section
5/11a-9 of the Probate Act, and a Physician's Report form used
in the Circuit Court of Cook County, Illinois.
The next thing you should do is draft a Petition for
Appointment of Guardian for Disabled Person concerning Nancy.
The Petition must include the following information:
The Petitioner's relationship and interest to
Nancy;
Nancy's date of birth, and place of residence;
The name and address of the person that
Nancy is living with, or the facility where
Nancy is living;
The names and addresses of Nancy's
guardian, and agents appointed under the
Illinois Power of Attorney Act, if any;
The names and addresses of Nancy's nearest
Page 7 © Copyright 2013, All Rights Reserved.
relatives;
The approximate value of Nancy's personal
property and real estate;
The estimated amount of Nancy's annual gross
income; and
The proposed guardian’s name, address, age,
occupation, and relationship to Nancy.
In the course materials, you will find a copy of a Petition for
Appointment of Guardian for Disabled Person form used in the
Circuit Court of Cook County, Illinois.
After Bob has reviewed and signed the Petition, you should:
File the Petition with the Clerk of the Court;
Have the Petition set for a hearing before the
Court; and
Provide the Court with a copy of the
Petition and the Medical report concerning
Nancy.
In accordance with section 5/11 a-10 of the Probate Act,
Bob must have a copy of the Petition, a Summons, and a
Notice of Rights of the Respondent personally served on
Nancy at least 14 days before the hearing on the Petition.
In the course materials, you will find a copy of a Summons
for Appointment of Guardian for Disabled Person, and Notice of
Rights of Respondent used in the Circuit Court of Cook County,
Page 8 © Copyright 2013, All Rights Reserved.
Illinois.
The statutes also provides that at least 14 days before the
hearing on the Petition, Bob must give notice by mail or in
person of the date and time of the hearing on the Petition to
following people included in the Petition:
Nancy's guardian, and agents appointed
under the Illinois Power of Attorney Act,
if any;
Nancy's nearest relatives; and
Nancy's proposed guardians.
The purpose of giving notice to these people is to allow
them an opportunity to intervene in the guardianship case. As we
will see later, this may become very important in certain
guardianship cases.
After you have set the Petition for a hearing, the Court will
probably appoint a Guardian ad Litem to represent Nancy in the
Case. Section 5/11a-10 of the Probate Act provides that before
the hearing the Guardian ad Litem:
Will personally observe Nancy;
Inform Nancy of the contents of the Petition
and her rights;
Attempt to determine Nancy's position
concerning the Petition and the proposed
guardian for Nancy's person and estate;
and
File a written report in the case setting
forth the Guardian ad Litem's findings
Page 9 © Copyright 2013, All Rights Reserved.
and recommendations to the Court.
If Nancy and the Guardian ad Litem have no objections to
the Petition, than the Court will probably appoint Bob as the
guardian of the person and estate of Nancy at the hearing on the
Petition.
In accordance with section 5/11 a-3 of the Probate Act, the
Court cannot appoint a guardian of the person and estate for
Nancy, unless the Court determines on clear and convincing
evidence that Nancy is a disabled person, as defined in section
5/11a-2 of the Probate Act.
If Nancy opposes the Petition, then Nancy will be entitled
to be represented by counsel at the hearing; to demand a jury of
six person; to confront and cross-exam all witnesses; and to ask
the Court to close the hearing to the public.
At the hearing, the Court is required to deem
Nancy's testimony as competent; and to allow Nancy to
be examined as an adverse witness.
Finally, you should be aware that Section 5/11 a-8 of the
Probate Act provides that you cannot dismiss or withdraw a
petition for the appointment of a guardian of the person or estate
of an alleged disable adult, without leave of court.
III. The Two Illinois Supreme Court Cases
Before we turn to the facts of our second hypothetical case, let us
discuss whether the guardian of the person and estate of a disabled
adult in Illinois has the authority to defend a divorce action against
the ward; and the authority to institute and prosecute a divorce
action for the ward.
Page 10 © Copyright 2013, All Rights Reserved.
The duties and powers of the guardian of the person of a
disabled person are set forth in detail in section 5/11a-17 of the
Probate Act. The duties and powers of the guardian of the estate
of the disabled person are set forth in detail in section 5/11a-18 of
the Probate Act.
The Illinois Supreme Court in the Drew’s case ruled in 1986
that:
The guardian of the ward's estate had
the duty and authority to defend a
divorce action against the ward;
The guardian of the ward's estate did
not have the authority to institute and
prosecute a divorce action for the
ward; and
The guardian of the ward's person
did not have the authority to institute
and prosecute a divorce action for
the ward.
Sometime after the Court's ruling in the Drew’s case, the
Illinois legislature added section 11a-17 (a-5) to the Probate Act.
That section provides that:
If the ward filed a divorce action before a Court
adjudicated the ward a disabled person, then the
guardian of the ward's person and estate could
continue to prosecute that divorce action for the
ward.
Very recently, the Illinois Supreme Court in the Karbin
case overruled the Court's holding in the Drew’s case that the
guardian of the ward's person did not have the authority to
institute and prosecute a divorce action for the ward. The Court
Page 11 © Copyright 2013, All Rights Reserved.
held that the guardian of the ward's person could institute and
prosecute a divorce action for the ward:
If, after considering the factors in section 11a-17(e) of
the Probate Act concerning the best interests of the
ward, the Court in the guardianship case determines on
the basis of clear and convincing evidence that the
divorce action is in the ward's best interest.
In accordance with the Karbin case, the Court is required
to consider the following five factors in determining whether it is
in the ward's best interest to allow the guardian of the ward's
person to institute and prosecute a divorce action for the ward:
The reason for the divorce action;
The benefit or necessity of the divorce
action;
The possible risks and other
consequences of the divorce
action;
the possible risks, consequences,
and benefits of any alternatives to
the divorce action; and
Any other relevant information that
the ward would have considered
concerning filing a divorce action, if the
ward were not disabled, including the
views of the ward's family and friends.
In the course materials, I have included copies of the Drew’s
and Karbin cases, and section 11 a-17 of the Probate Act.
Page 12 © Copyright 2013, All Rights Reserved.
VI. Case Two
Now, let us discuss the facts of our second hypothetical case:
Helen and Jerry have been married for about five
years.
Helen was married once before, and has no children.
Jerry was married once before, and has no
children.
Jerry's closest living relatives are his younger
brother, Bill, and his older sister, Jane.
Helen is 71 years old and in good health.
Jerry is 73 years old, has had a mild stroke, and
has been suffering from dementia for about a
year.
About six months ago, Helen filed an action for
divorce against Jerry.
Jerry has filed a counter-petition in the divorce
case.
During the divorce case, the Court became aware
that Jerry might not be competent because of his
physical and mental condition.
The Court in the divorce case told counsel for
the parties that it would not proceed with the
divorce case unless a Court in a guardianship
Page 13 © Copyright 2013, All Rights Reserved.
proceeding:
Appointed a guardian of the person and
estate for Jerry; or
Determined that Jerry was not a disabled
adult.
The divorce case is pending and
undetermined.
Helen has filed a petition in the probate
court for the appointment of a guardian of
the person and estate for Jerry.
Jerry is opposing the petition for guardianship;
and
Jerry has refused to provide the Court in the
guardianship case
with a physician's report concerning Jerry's physical
and mental condition
Now, I would like to discuss the following six points concerning
our second hypothetical case.
Is Helen required to include all of the relevant facts concerning
the divorce case in Helen's petition for the appointment of a guardian
for Jerry? I think the answer is yes. I believe that a failure to include
all the relevant information concerning the divorce case in the
guardianship petition would be tantamount to intentionally
misleading the Court. I believe that you should draft an original
petition for the appointment of a guardian of a disabled person setting
forth all the statutory required information; and all of the relevant facts
concerning the pending divorce case.
Page 14 © Copyright 2013, All Rights Reserved.
Should Helen ask the Court in Helen's guardianship petition
to appoint Helen as the guardian of the person and estate of Jerry? I
think the answer is obviously no. A conflict of interest clearly exists
between Jerry and Helen concerning the divorce case that precludes
Helen from acting as the guardian of the person and estate for Jerry.
Helen should ask the Court in Helen's guardianship petition to
appoint Jerry's brother or sister, or some other person that the Court
deems appropriate as the guardian of the person and estate for Jerry.
In our hypothetical case, Jerry has refused to provide the Court
with a physician's report concerning Jerry's physical and mental
condition.
In accordance with the provisions of section 5/11a-9 of the
Probate Act, the Court cannot conduct a hearing on Helen's petition
for guardianship, unless the Court has received a physician's report
containing the information required in section 5/11a-9 concerning
Jerry's physical and mental condition.
It is important to note that Helen's failure to file the physician's
report, along with the guardianship petition, does not deprive the trial
court of personal jurisdiction because the physician's report is a
procedural requirement rather than a jurisdictional requirement.
Can Helen have the Court compel Jerry to provide the
Court with the physician's report required by section 5/1 la-
9 of the Probate Act?
The answer is yes. There are two ways that Helen can
have the Court require Jerry to provide the Court with the
physician's report.
Page 15 © Copyright 2013, All Rights Reserved.
First, Illinois Supreme Court Rule 215 provides, among
other things, that:
In any action in which the
physical or mental condition of a
party is in controversy, the Court
upon proper notice and motion,
may order such party to submit to
an appropriate physical or mental
examination by a licensed
professional; and
The party requesting the
examination shall pay for all of
the fees and costs concerning the examination.
Second, section 5/1 la-9(b) of the Probate Act states that:
If for any reason no report accompanies
the petition, the court shall order
appropriate evaluations performed by a
qualified person or persons and a report
prepared and
filed with the court at least 10 days prior to the
hearing.
The Illinois Appellate Court in the Estate of Malloy case
in 1981 held that the trial court had the authority to order an
alleged disabled adult to involuntarily submit to an examination
by a qualified physician selected by the Court for the purpose of
preparing the physician's report required by section 5/11a-9 of
the Probate Act.
I have included a copy of the Estate of Malloy case in the
course materials. Section 5/11a-9 of the Probate Act and the
Page 16 © Copyright 2013, All Rights Reserved.
Estate of Malloy case are silent concerning who is required
to pay for the cost of the physician's report.
believe that Helen would be better off bringing the motion
to compel Jerry to submit to a physical and mental examination
pursuant to section 5/11a-9 of the Probate Act rather than Rule 215
for two reasons.
First, section 5/11a-9 requires the Court to order the
examination while Rule 215 does not.
Second, since section 5/1 la-9 and the Estate of Malloy
case are silent concerning who is required to pay for the cost of the
examination, I believe Helen could argue that Jerry should be
required to pay for all or part of the cost of the physician's report.
What if the Court grants Helen's petition and appoints a
guardian of the person and estate for Jerry, then can the guardian
of Jerry's person and estate defend Jerry in the divorce case,
without the approval of the Court? The answer is yes. In
accordance with the Drew’s case and the Karbin case, the
guardian of Jerry's estate has the duty and authority to defend
Jerry in the divorce case.
If Helen voluntarily dismisses her divorce action against
Jerry after the Court has appointed a guardian of the person and
estate for Jerry, then can the guardian of Jerry's person and estate
continue to prosecute Jerry's counter-petition for divorce against
Helen, without the approval of the Court? Once again, the
answer is yes. In our hypothetical case, Jerry filed his counter-
petition for divorce against Helen before the Court adjudicated
Jerry a disabled person.
Accordingly, in accordance with section l la-17(a-5) of the Probate
Act, the guardian of Jerry's person and estate can continue to
prosecute Jerry's counter-petition for divorce.
Page 17 © Copyright 2013, All Rights Reserved.
Now, let us slightly change the facts of our second case.
Suppose that we change the facts of our case to provide that:
Helen filed an action for divorce against Jerry;
Jerry did not file a counter-petition in the divorce case; and
Helen voluntarily dismissed her divorce action against Jerry after the Court appointed a guardian of the person and estate for Jerry.
Given these facts, can the guardian of Jerry's person and
estate institute and prosecute a divorce action for Jerry, without
the approval of the Court? The answer is no. The guardian of
Jerry's person and estate does not have the authority under section
11a-17(a-5) of the Probate Act to institute and prosecute a divorce
action for Jerry without the approval of the Court because Jerry
did not file a divorce action against Helen before Jerry was
adjudicated a disabled adult.
In accordance with the Karbin case, the guardian of Jerry's
person and estate will not be able to institute and prosecute a
divorce action for Jerry, unless the Court in the guardianship
case determines, based on clear and convincing evidence, that the
divorce action is in Jerry's best interest.
V. The Third Case
The facts of our third hypothetical case are as follows:
Page 18 © Copyright 2013, All Rights Reserved.
Mary and Jack have been married for about 15 years.
Mary and Jack do not have any children.
Mary and Jack began living separate and apart about six
months ago because of marital difficulties.
Neither party has filed an action for divorce.
Mary is 42 years old.
Mary was recently severely injured in a car accident
caused by a drunk driver.
Mary is now physically and mentally disabled
because of the car accident.
Mary's closest living relatives are her elderly mother,
her older sister, Jill, and her younger sister, Susan.
Susan has filed a petition in the probate court
requesting that the Court appoint Susan as the guardian of
Mary's person and estate.
The Court has appointed a Guardian ad Litem for
Mary in the case.
Susan wants the court to appoint her as the guardian of
Mary's person and estate so that Susan can care for Mary
and file an action for divorce for Mary.
After receiving notice of the Guardianship Petition,
Mary's husband, Jack, filed a counter-petition in the
guardianship case asking the Court to appoint him as the
guardian of Mary's person and estate.
Now let us discuss the following four issues
Page 19 © Copyright 2013, All Rights Reserved.
concerning our third hypothetical case.
First, I think that in addition to the information required by
the statute that Susan should include in her petition for
guardian all of the relevant facts concerning why it is in the best
interests of Mary that Susan be appointed as the guardian of
Mary's person and estate.
Second, can Susan file a petition to have the Court appoint
Susan as the guardian of Mary's person and estate, if Mary is still
married to Jack? The answer is yes.
Section 5/1 la-3 of the Probate Act provides that upon a
filing of a petition by any reputable person, the Court may
adjudge a person to be a disabled person and may appoint a
guardian of the person, or of the estate, or both, for the disabled
person.
Third, what factors should the Court consider in deciding
whether to appoint Mary's sister, or Mary's husband, or some other
person, as the guardian of Mary's estate and person? Section
5/11a-12(d) of the Probate Act provides that the selection of the
guardian shall be in the discretion of the Court, which shall
consider the preference of the disabled person as well as the
qualifications of the proposed guardian. The Court is not required
to accept the preference of the disabled person as to who will be
the guardian of the ward's person and estate.
The cases construing section 5/11 a-12(d) provide that the
paramount concern in the Court's selection of the ward's guardian
is the best interest and wellbeing of the ward; and that the Court
may consider the following, among other factors, in determining the
ward's guardian:
The recommendations of persons with
kinship or family ties to the ward;
Page 20 © Copyright 2013, All Rights Reserved.
The relationship between the ward and
proposed guardian;
The conduct of the ward before being
adjudicated disabled that shows trust or
competence in the proposed guardian;
The prior actions of the proposed
guardian concerning the wellbeing of the
ward;
The spousal relationship between the
ward and the proposed guardian;
The ability of the proposed guardian
to manage the ward's personal estate; and
The extent to which the proposed
guardian may be committed to discharging
responsibilities, which may conflict with his
or her duties as the ward's guardian.
In the course materials, I have included copies of the Illinois
Appellate Court decisions in the Schmidt case that was decided in
1998, and the Johnson Estate case that was decided in 1999. The
two cases contain an excellent discussion of the factors that the
trial court should consider in appointing a guardian of the person
and estate for a disabled adult.
In light of the recent decision in the Karbin case, I believe
that the Court, in deciding whom to appoint as the guardian of the
person and estate of Mary in our hypothetical case, would strongly
consider any marital difficulties and differences between Mary and
her husband; and Mary's sister's desire to file a divorce action for
Mary.
Page 21 © Copyright 2013, All Rights Reserved.
Finally, what impact will the findings and
recommendations of Mary's Guardian ad Litem in our case have
on the Court's decision on who should be appointed as the
guardian of Mary's estate and person? A Guardian ad Litem is
commonly called "the eyes and ears of the Court". The Court will
usually appoint an experienced attorney that the Court knows and
trusts as the Guardians ad Litem in a guardianship case.
Accordingly, the Guardian ad Litem's findings and
recommendations will usually have a strong influence on the
Court's decision.
I am certain that any experienced Illinois divorce lawyers
in our audience have noticed two stark similarities between how
the Court will decide who will be the guardian of the ward under
the Illinois Probate Act, and which parent will be awarded the sole
custody of the minor children under the Illinois Divorce Act.
First, Illinois courts are required to decide the issue of the
custody of the minor children in divorce cases based on the best
interests of the children, after considering all relevant factors,
including ten specific factors in the statute.
Second, Illinois courts frequently appoint a Child's
Representative, or a Guardian ad Litem to represent the minor
children in contested custody cases.
The Court in our third hypothetical case may have to conduct
three separate hearing in the case.
If Mary opposes the Petition for guardianship, then the
Court will have to conduct a hearing to determine on clear and
convincing evidence whether Mary is a disabled person.
If the Court finds that Mary is a disabled person, then the
Court will have to decide whether it is in Mary's best interests to
appoint Mary's sister, or Mary's husband, or someone else, as the
guardian of Mary's estate and person.
Page 22 © Copyright 2013, All Rights Reserved.
Finally, if the Court appoints Mary's sister as the guardian
of Mary's estate and person, then in accordance with the Karbin
case, the Court will have decide on clear and convincing evidence
whether it is in Mary's best interests to allow the guardian of
Mary's estate and person to file a divorce action for Mary.
VI. The Fourth Case
The facts of our fourth hypothetical case are as follows:
Joel and Sandy have been married for 40 years.
Joel is 65 years old and in good health.
Sandy is 70 years old and has been
suffering from
severe dementia for about 3 years.
Sandy has been living in a nursing
home for about
2 years.
The Court appointed Joel the
guardian of Sandy's person and
estate about 2 years ago.
Joel wants to divorce Sandy and marry
Barbara.
All of Sandy's other relatives have
repeatedly told Joel that they will
not agree to act as the successor
Page 23 © Copyright 2013, All Rights Reserved.
guardian of Sandy's person and
estate.
I want to discuss four issues concerning our fourth case.
First, can you ethically represent Joel in a divorce case
against Sandy, while Joel is acting as the guardian of Sandy's
person and estate? I think the answer is no. As you will recall,
comment four of rule 1.14 of the Illinois Rules of Professional
Conduct provides that if the lawyer represents the guardian and
is aware that the guardian is acting adverse to the ward's interest,
the lawyer may have an obligation to prevent or rectify the
guardian's misconduct. I think you have an obligation to tell Joel
that he has to resign as the guardian of Sandy's person and
estate, before you will represent Joel in a divorce case against
Sandy.
Second, can Joel resign as the as the guardian of Sandy's
person and estate, without the permission of the Court? The
answer is no. Section 5/23-1 of the Probate act provides that the
guardian of the Ward's estate and person must file a petition with
the Court requesting permission to resign.
Third, is the Court required to allow Joel to resign as the
guardian of Sandy's person and estate? The answer is No. Section
5/23-1 of the Probate act provides that the Court may permit the
guardian of the Ward's estate and person to resign.
Even though all of Sandy's other relatives have refused act as
the successor guardian of Sandy's person and estate, I believe that
the Court would allow Joel to resign as the guardian of Sandy's
person and estate, as a practical matter.
Finally, if the Court allows Joel to resign as the guardian of
Sandy's person and estate, and all of Sandy's other relatives
Page 24 © Copyright 2013, All Rights Reserved.
refuse to act as the successor guardians for Sandy, then whom
can the Court appoint as the successor guardians for Sandy?
Section 5/11a-5(b) of the Probate act provides that the Court
may appoint any public agency or not-for-profit corporation that
the Court finds capable of providing an active and suitable
program of guardianship for the ward as the guardian of the ward's
person and estate.
VII. The Fifth Case
The facts of our last hypothetical case are as follows:
Scott and Jill have been married for 45
years.
Jill has filed a divorce action against
Scott.
Scott's brother, Bill, is the
guardian of Scott's person and
estate.
Bill as the guardian of Scott's
person and estate is defending Scott in the divorce case, in accordance with the Dress case and Karbin Case.
Jill and Bill, as the guardian of Scott's person and estate, have agreed on the terms of a Marital Settlement Agreement settling all the issues in the divorce case.
Page 25 © Copyright 2013, All Rights Reserved.
The Marital Settlement Agreement
provides that neither party will receive spousal support, and that
the parties will equally divide their marital property.
Should Bill insist that the terms of the Marital Settlement
Agreement be subject to the approval of the Court in the
Guardianship Case? The answer is yes.
The provision of section 5/12-2 of the Probate Act, provide
that before the guardian of the Ward's person and estate begin
their duties, they must post a bond in an amount approved by the
Court, binding them faithfully to discharge their duties under the
law.
The actions of the guardian of the Ward's person and
estate are subject to the supervision and approval of the Court.
Accordingly, the guardian of the Ward's person and estate are
usually required to periodically report to the Court and obtain
the Court's approval for their actions.
The Court will usually require the guardian of the Ward's
person to provide the Court with an annual written report
concerning the Ward's health and living arrangements. The Court will usually require the guardian of the Ward's estate
to provide the Court:
With an Inventory of all the Ward’s
asset, within 60 days after the Court
has appointed the guardian; and,
With an annual Accounting of the
assets, income, and expenses of the
Ward.
Page 26 © Copyright 2013, All Rights Reserved.
If the Court does not approve the guardian's annual
Accounting of his administration of the Ward's estate, then Guardian ill
be financially liable to the Ward's estate under the terms of the
Guardian's bond.
Bill will have to include the details of the Marital Settlement
Agreement in his annual accounting to the Court, as the Guardian of
Scott's estate. If Bill proceeds with the Marital Settlement Agreement,
without the approval of the Court in the Guardianship Case, and the
Court objects to the terms of the Marital Settlement Agreement, then
Bill could be financially liable to Scott's estate.
Accordingly, I strongly recommend that:
Bill insist that the terms of the
Marital Settlement Agreement be
subject to the approval of the Court
in the Guardianship Case; and
Bill have the Marital Settlement
Agreement approved by the Court
in the Guardianship Case, before
the Court in the divorce case
enters a Judgment for Dissolution
of Marriage.
VII. Conclusion
Although the overall divorce rate has been declining during the
past few years, it has been increasing for older and elderly married
couples. As our elderly population continues to grow and live
longer, I believe you will see many cases in the future involving
guardianship and divorce in the Illinois courts.