DocketNumber： 80182, 80184, 80246 cons.
Filed Date： 10/18/1996
Status： Precedential
Modified Date： 10/22/2015
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the
filing of the opinion to request a rehearing. Also, opinions are
subject to modification, correction or withdrawal at anytime prior
to issuance of the mandate by the Clerk of the Court. Therefore,
because the following slip opinion is being made available prior to
the Court's final action in this matter, it cannot be considered
the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of
Decisions in the Official Reports advance sheets following final
action by the Court.
Nos. 80182, 80184, 80246 cons.--Agenda 21--May 1996.
In re ESTATE OF JOHN F. WELLMAN (Samuel H. Young, Appellant;
Patrick T. Murphy, Appellee).
Opinion filed October 18, 1996.
JUSTICE FREEMAN delivered the opinion of the court:
These consolidated appeals arise out of a series of events
during the last years in the life of John Wellman. He executed a
durable power of attorney, in which he appointed his attorney,
Samuel Young, as his agent. Wellman also established joint
tenancies with Young in several accounts. The circuit court of Cook
County: adjudicated Wellman mentally disabled and appointed Patrick
Murphy, the public guardian of Cook County, as Wellman's plenary
guardian; restored Wellman to competency and discharged Murphy; and
granted Murphy leave to appeal as Wellman's plenary guardian.
Wellman died. Lastly, the trial court granted the fee petition of
Wellman's guardian ad litem.
In an unpublished order (Nos. 1--90--3008, 1--90--3011, 1--91-
-2055, 1--92--1983 cons. (unpublished order under Supreme Court
Rule 23)), the appellate court: held that Murphy had standing to
appeal, severed the joint tenancies, upheld the fee award to
Wellman's guardian ad litem, and held that Wellman's death rendered
moot the parties' remaining issues on appeal. We allowed leave to
appeal (155 Ill. 2d R. 315(a)). We now reverse the appellate
court's severance of the Wellman-Young joint tenancies, and affirm
the appellate court's upholding of the guardian ad litem's fee
award and dismissal of the remaining issues.
BACKGROUND
The record contains the following facts that are pertinent to
our disposition of the issues raised on appeal. John Wellman was
born in 1900. A certified public accountant, he was a self-employed
businessman and stock trader during his lifetime. By early 1990, he
had accumulated assets totalling approximately $850,000, of which
$650,000 were invested in United States Treasury bills, savings and
checking accounts, and stock.
Samuel Young was admitted to the Illinois bar in 1948. In
1986, Wellman first employed Young concerning the probate of an
estate. Wellman was the executor of the estate; he had been a joint
tenant with the testator in certain accounts. Wellman continued
using Young's services concerning, inter alia, tax preparation,
real estate matters, and the management of Wellman's property.
In a letter to Young dated March 21, 1988, Wellman stated in
writing what he had previously told Young on "many occasions."
Wellman, having no family, asked for Young's assistance in handling
his financial affairs. Wellman also wanted Young to look after his
affairs if he should become incapacitated. On December 27, 1988,
Wellman executed a durable power of attorney in which he appointed
Young as his agent. See generally 755 ILCS 45/1--1 et seq. (West
1992). Wellman granted Young broad authority to act for him whether
competent or incompetent.
On December 1, 1989, Wellman and Young exchanged two letters.
The first letter, from Wellman to Young, confirmed: Wellman's
previous request for Young to assist him in managing his property,
Young's agreement to provide such assistance, and, in consideration
thereof, Wellman's promise to place his property in joint tenancy
with Young with right of survivorship. Also, during Wellman's life,
all of the assets and income would be used for Wellman.
The second letter, from Young to Wellman, acknowledged:
Wellman's decision to make Young his "partner" in managing his
property, Wellman's decision to place his property in joint tenancy
with Young to avoid probate, Young's agreement to look after
Wellman and to see that Wellman had medical and health care,
Young's agreement not to spend or use Wellman's property for any
purpose other than for Wellman's benefit, and Wellman's power to
revoke the joint tenancies at any time and to make gifts to others
at his death.
On December 7, 1989, Wellman and Young visited the Northern
Trust Bank in Chicago. They spoke to Paul Larson, who had been
Wellman's personal banker since 1984. Wellman and Young instructed
Larson to place Wellman's savings and checking accounts in joint
tenancy. Larson refused. Eventually, Wellman and Young closed the
account, totalling $188,000, but returned when the bank agreed to
the Wellman-Young joint accounts.
After visiting the Northern Trust Bank, Wellman and Young went
to the Federal Reserve Bank in Chicago. They spoke to Andrew
Vlahos, who had served Wellman since 1985. They discussed Wellman's
United States Treasury Direct Account and joint tenancy with Young.
On January 30, 1990, the account was placed in the name of Wellman
and Young in joint tenancy with right of survivorship.
In December 1989, Vlahos contacted Assistant Illinois Attorney
General Ann Parisi. Vlahos told Parisi that Young possibly was
exploiting Wellman. On December 21, 1989, Parisi visited Wellman to
investigate whether any laws had been violated and whether Wellman
had been financially exploited in any way.
On January 7, 1990, the Illinois Attorney General's office
referred the matter to the Cook County public guardian's office to
investigate whether Wellman needed a guardian. On March 30, 1990,
Murphy petitioned the trial court to be appointed plenary guardian
of Wellman's person and estate. On April 3, 1990, the trial court
appointed Sandra Thiel as Wellman's guardian ad litem. On May 8,
1990, at the close of a hearing, the trial court adjudicated
Wellman mentally disabled and appointed Murphy plenary guardian of
Wellman's person and estate. On May 24, 1990, the trial court,
granting Murphy's petition, entered an order freezing the Wellman-
Young joint accounts at the Northern Trust Bank.
On June 13, 1990, Young petitioned the trial court to vacate
the appointment of the plenary guardian for Wellman. In a separate
filing, Young petitioned the court to vacate the order freezing the
bank accounts. On June 14, 1990, Wellman's attorney, Robert
Downing, petitioned the trial court to restore Wellman to
competency and discharge Murphy and Thiel, and to vacate the order
freezing the bank accounts. Also, on June 24, 1990, Downing moved
to vacate the May 8, 1990, guardianship order specifically because
it violated Wellman's due process rights and the durable power of
attorney.
On July 13, 1990, Murphy moved to dismiss Young's petition to
vacate the appointment of a plenary guardian for Wellman. In a
separate filing, Murphy moved to dismiss Downing's petition to
restore Wellman. Murphy also filed answers to Young's and Downing's
petitions. On July 24, 1990, Murphy petitioned the trial court to:
(1) revoke the durable power of attorney in which Wellman appointed
Young as his agent, and (2) sever all of the joint tenancy
accounts.
On September 12, 1990, Murphy moved for summary judgment on
Young's and Downing's petitions to vacate the guardianship order.
On September 19, Young cross-moved for summary judgment on his
petition.
In orders entered on October 16 and 17, 1990, the trial court
granted Murphy's motion for summary judgment and denied Young's and
Downing's petitions on most issues. On October 19, 1990, Downing
(Docket No. 1--90--3008) and Young (Docket No. 1--90--3011) each
appealed from the trial court's denial of their respective
petitions.
From January 7 through March 28, 1991, the trial court held
hearings on Murphy's July 24, 1990, petition to revoke the durable
power of attorney and sever the joint tenancies. On May 8 through
10, 1991, the court held hearings on Downing's June 14, 1990,
petition to restore Wellman.
On June 3, 1991, the trial court entered a "final judgment
order" dismissing Murphy's petition and granting Downing's peti-
tion. The court terminated the adjudication of mental disability,
restoring Wellman to competency. The court also vacated its order
freezing the Northern Trust Bank accounts.
On June 12, 1991, Murphy filed in the trial court a "Motion
for Leave to Appeal" to the appellate court. In the motion, Murphy
acknowledged that by terminating the adjudication of mental
disability, the trial court restored Wellman to competency and
discharged Murphy as his guardian. Murphy further stated:
"3. That having been discharged as guardian of the
estate and person of John F. Wellman, the Public Guardian
has no standing to act on behalf of the estate in any
respect including appeal of the June 3, 1991, final
judgment order.
4. That it would be a circumvention of the Illinois
Supreme Court Rules and clearly against their spirit and
intent to deny the estate any opportunity to appeal from
this final judgment order.
5. That there is no other party available to take an
appeal of such order other than the Public Guardian of
Cook County.
6. That the Public Guardian will not seek any fees
from the estate of John F. Wellman for any work on the
appeal.
WHEREFORE, the Public Guardian of Cook County
respectfully requests leave of this court to prosecute an
appeal, on behalf of the estate of John F. Wellman, of
this court's final judgment order entered on June 3,
1991."
The trial court entered an order stating in pertinent part that
Murphy, as Wellman's plenary guardian of Wellman's estate, was
granted leave to appeal from the final judgment order "on behalf of
the estate."
On June 28, 1991, Murphy filed his notice of appeal in the
appellate court (Docket No. 1--91--2055). Murphy asked the appel-
late court to reverse the trial court's final judgment order and
empower the guardian to revoke the agency agreement between Wellman
and Young, reverse the trial court's restoration of Wellman, hold
that the Young-Wellman joint tenancies are null and void, and order
all accounts to revert back to the sole ownership of Wellman.
On July 3, 1991, Murphy filed in the trial court a first and
final account of Wellman's estate. Murphy distributed to Young
$955.23, which was the balance of the cash receipts and disburse-
ments that Murphy handled during the guardianship. The trial court
approved the final account, formally discharged Murphy as plenary
guardian of the person and estate of Wellman, and closed the
estate.
On August 17, 1991, Wellman died. Around August 28, Young
formally reported Wellman's death to the trial and appellate
courts, Downing, and Murphy. On October 2, 1991, Wellman's will was
admitted to probate and Young was appointed executor.
On January 30, 1992, Thiel, Wellman's guardian ad litem,
petitioned the trial court for a fee award of $4,843 to "be paid
from the funds" of Wellman. Young moved to dismiss. On April 15,
1992, the trial court denied Young's motion to dismiss and awarded
Thiel fees in the amount requested. Young appealed from the fee
award (Docket No. 1--92--1983).
The appellate court consolidated the four separate appeals. On
February 17, 1993, the court heard oral argument and, on March 15,
1995, issued an unpublished order (134 Ill. 2d R. 23). The court
held that Wellman's death rendered moot most of the issues raised
on appeal. However, the appellate court held that Murphy's dis-
charge as Wellman's plenary guardian, or Wellman's subsequent
death, did not deprive Murphy of standing to appeal from the denial
of his petition to sever the joint tenancies. The appellate court
then reversed the trial court and severed the joint tenancies. The
court also upheld the fee award to Thiel. Young, Downing, and
Murphy all appeal.
DISCUSSION
Before this court, Downing and Young continue their piecemeal
appellate litigation style. In cause No. 80182, Downing appeals
from the appellate court's severance of the joint tenancies. In
cause No. 80184, Young appeals from the trial court's initial
adjudication of Wellman as mentally disabled, and the appellate
court's severance of the joint tenancies. Murphy, responding in
these causes, cross-appeals from the trial court's restoration of
Wellman. In cause No. 80246, Young appeals from the appellate
court's judgment upholding the trial court's fee award to Thiel. We
consolidated these causes for review.
Murphy's Standing to Appeal Joint Tenancies
Young and Downing contend that the appellate court erred in
severing the Wellman-Young joint tenancies. Each initially argues
that Murphy lacked standing to appeal from the denial of his
petition to sever the joint tenancies.
The doctrine of standing requires that a party, either in an
individual or representative capacity, have a real interest in the
action brought and in its outcome. The purpose of the doctrine is
to ensure that courts are deciding actual, specific controversies
and not abstract questions or moot issues. In re Marriage of
Rodriguez, 131 Ill. 2d 273, 279-80 (1989); see 59 Am. Jur. 2d
Parties §§30, 31 (1987). Standing "is not simply a procedural
technicality" (59 Am. Jur. 2d Parties §30, at 416 (1987)), but
rather is an aspect or a component of justiciability. In re Estate
of Burgeson, 125 Ill. 2d 477, 485 (1988); Weihl v. Dixon, 56 Ill.
App. 3d 251, 253 (1977).
The essence of the inquiry regarding standing is whether the
litigant, either in an individual or representative capacity, is
entitled to have the court decide the merits of a dispute or a
particular issue. Helmig v. John F. Kennedy Community Consolidated
School District No. 129, 241 Ill. App. 3d 653, 658 (1993). This
court has repeatedly held that standing requires some injury in
fact to a legally recognized interest. Rodriguez, 131 Ill. 2d at
280 (and cases cited therein).
We agree with Young and Downing that Murphy lacked standing to
appeal from the denial of his petition to sever the Wellman-Young
joint tenancies. We note that our conclusion is based on
established guardianship principles, and that Murphy, as a public
guardian, "has all the powers and duties of any other guardian
appointed under the Probate Act of 1975." Burgeson, 125 Ill. 2d at
486. The occurrence of two events deprived Murphy of standing.
First, the trial court restored Wellman to competency and dis-
charged Murphy. Second, Wellman died. 755 ILCS 5/24--12 (West
1992).
Wellman's Restoration
Murphy himself acknowledged to the trial court in his motion
for leave to appeal that the court restored Wellman and discharged
Murphy. He also admitted that, as a result, he had "no standing to
act on behalf of the estate in any respect including appeal of the
June 3, 1991, final judgment order."
However, the trial court granted Murphy leave to appeal "on
behalf of the estate." The appellate court held that Murphy had
standing to appeal, reasoning:
"We first find that the Public Guardian had standing
to appeal the denial of his petition to sever the joint
tenancies. The Public Guardian had an interest in seeking
that relief because the Public Guardian had been
appointed plenary guardian of Wellman and because he
believed that his ward was incapable of handling his own
affairs. The discharge of the Public Guardian did not
deprive the Public Guardian of the ability to appeal an
adverse ruling."
This reasoning was erroneous. Murphy correctly acknowledged
that Wellman's restoration deprived him of standing to appeal. The
Probate Act of 1975 does not provide for the automatic termination
of a guardianship for a disabled ward as in the case of a
guardianship for a minor ward who reaches the age of majority (see
755 ILCS 5/11--14.1 (West 1992)). Rather, the Act requires the
trial court to hold a hearing on the petition of the ward, someone
on the ward's behalf, or on the court's own motion, to revoke or
modify the guardianship. 755 ILCS 5/11a--20, 11a--21 (West 1992).
At the close of the hearing, the court may: "(1) dismiss the
petition; (2) terminate the adjudication of disability; (3) revoke
the letters of guardianship of the estate or person, or both; (4)
modify the duties of the guardian; and (5) make any other order
which the court deems appropriate and in the interests of the
ward." 755 ILCS 5/11a--21(c) (West 1992).
In Hoff v. Meirink, 12 Ill. 2d 108, 111 (1957), this court
stated:
"While it is clear that a restoration to competency
does not ipso facto terminate the office of the
conservator, it by no means follows that the probate
court can continue to exercise its supervisory power over
the property of the ward after the ward has been restored
to competency and until the conservator's office
terminates. Indeed, serious constitutional questions
would be presented by a statute that provided for the
exercise of supervisory power after the ward's disability
had been removed. We find no such provision in the
Probate Act."
The appellate court has correctly read Hoff as "authority for the
general proposition that a restored ward becomes reinvested with
the rights he lost when adjudicated an incompetent." In re Estate
of Hayden, 105 Ill. App. 3d 60, 65 (1982). Upon the restoration of
a mentally disabled ward, the ward has the right to be put in
possession of his or her property, and to ask the court to order
the guardian to deliver to the ward all of the ward's money and
property that the guardian has, or the money and property to which
the ward is entitled. In re Estate of Berger, 166 Ill. App. 3d
1045, 1055 (1987).
Following the restoration of a ward, the now-competent former
ward is capable of representing, and has the right to represent,
his or her own interests. Thus, the guardian no longer has standing
to represent in court the interests of the former ward. Hayden, 105
Ill. App. 3d at 63-66.
Further, we agree with long-established authority that upon a
ward's restoration, the guardian lacks standing to appeal
therefrom. In re Guardianship of Love, 19 Ohio St. 2d 111, 249
N.E.2d 794 (1969) (and cases cited therein); see, contra, Cobb v.
South Carolina National Bank, 210 S.C. 533, 43 S.E.2d 465 (1947).
Courts reason that the guardian lacks a legally sufficient interest
in the ward's restoration to allow the guardian to contest it on
appeal. The guardian " `is simply a trustee and can have no
interest in this regard adverse to the recovery of sanity by the
ward.' " Love, 19 Ohio St. 2d at 114-15, 249 N.E.2d at 796, quoting
Ensign v. Flaxon, 224 Mass. 145, 150, 112 N.E. 948, 950 (1916).
This reasoning is quite settled in Illinois. The appointment
of a guardian creates the relation of trustee and beneficiary
between the guardian and the ward. The estate becomes a trust fund
for the ward's support. Lewis v. Hill, 387 Ill. 542, 545 (1944).
The guardian only acts as the hand of the court and is at all times
subject to the court's direction in the manner in which the
guardian provides for the care and support of the disabled person.
In re Estate of Nelson, 250 Ill. App. 3d 282, 287 (1993).
Also, guardianship proceedings are not, strictly speaking,
adversarial. The trial court protects the disabled person as its
ward, vigilantly guarding the ward's property and viewing the ward
as a favored person in the eyes of the law. The court functions in
a central role, which permits it to oversee and control all aspects
of the management and protection of the disabled person's estate.
The court controls the ward's person and estate, and directs the
guardian's care, management, and investment of the estate. Berger,
166 Ill. App. 3d at 1055. The sole issue facing the trial court in
a restoration proceeding is the mental condition and the best
interests of the ward. See Love, 19 Ohio St. 2d at 114, 249 N.E.2d
at 795. Thus, based on the foregoing principles, and contrary to
the appellate court's reasoning, the trial court's restoration of
Wellman cannot be considered to be such an "adverse ruling" to
Murphy as to allow him to appeal therefrom.
We note that Murphy characterizes the final judgment order as
only partially restoring Wellman. Thus, according to Murphy, his
relationship to Wellman should not have ended, providing him with
standing to appeal. Murphy points to the final judgment order, in
which the trial court found "that John F. Wellman [was] a partially
disabled person who lacks some but not all of the capacity as
specified in [755 ILCS 5/11a--3 (West 1992)] and, therefore, is
entitled to the appointment of a limited guardian of the person and
estate." The court also found that Wellman lacked the "capacity to
perform the tasks necessary for the routine care and safety of his
person or for the tasks incidental to the paying of bills, writing
checks, making purchases and managing his estate at that level of
performance."
However, the trial court terminated the adjudication of mental
disability. In addition to the above-quoted finding, the court also
found that: the extent of Wellman's confusion or dementia varied
due to his anemia and blood transfusions, and that drug therapy had
helped with those conditions; Wellman had the mental ability to
communicate with his physician, to understand his mental and
physical conditions, and to make responsible decisions concerning
his health care; and that Wellman had the mental ability to make
and communicate responsible decisions concerning the control,
investment, and management of his financial affairs and the
disposition of his estate. The trial court also found that Wellman
understood the nature and consequences of placing his accounts in
joint tenancy with Young, had the requisite mental capacity to
enter into the transactions, and was capable of controlling or
revoking the agency relationship with Young.
These findings show that the trial court found Wellman to be
a partially disabled person, but not yet in need of a guardian over
his estate. With help from others, i.e., Young, his agent, Wellman
was able to direct and manage his affairs and estate. See In re
Estate of Galvin, 112 Ill. App. 3d 677, 681 (1983), quoting In re
Estate of Mackey, 85 Ill. App. 3d 235, 238 (1980). Of course, the
question of Wellman's mental disability was a uniquely factual
question for the trial court, whose findings will not be disturbed
on review unless they are against the manifest weight of the
evidence. See Galvin, 112 Ill. App. 3d at 681-82.
When the trial court restored Wellman on June 3, 1991, the
reason for the State's interference with his affairs ceased. See In
re Estate of Hire, 309 Ill. App. 566, 568 (1941), rev'd on other
grounds, 379 Ill. 201 (1942). The only function for Murphy to
perform was to account for Wellman's estate and deliver it to
Wellman. The existence or absence of Wellman's next of kin neither
diminished nor enlarged Murphy's role as guardian.
On July 3, 1991, a few days after Murphy filed his notice of
appeal, he filed his account of Wellman's estate. The trial court
approved the account, formally discharged Murphy as plenary
guardian of Wellman's person and estate, and closed the estate.
Contrary to the trial court's grant of leave to appeal, Murphy
could not appeal "on behalf of the estate." After July 3, 1991,
Murphy's relationship to Wellman's money and property ceased to
exist. In terms of our definition of standing, after Wellman was
restored and Murphy was discharged, Murphy could no longer claim an
injury in fact to a legally recognized interest. See Burgeson, 125
Ill. 2d at 487.
Wellman's Death
If Wellman's restoration and Murphy's discharge, standing
alone, did not deprive Murphy of standing to appeal, then they
certainly did when considered with Wellman's death. However, the
appellate court reasoned that "[a]s Wellman's property held in
joint tenancy remains, we hold that the issue whether the denial of
the petition to sever the joint tenancies was error is not moot."
This reasoning was erroneous. Not only did Wellman's death
render moot the issue of whether the trial court erred in denying
Murphy's petition to sever the joint tenancies, but Wellman's death
also deprived Murphy of standing to assign the error.
The general rule is that a guardianship necessarily terminates
by the death of the ward. 57 C.J.S. Mental Health §146, at 45,
§158, at 55 (1992); 39 Am. Jur. 2d Guardian & Ward §54 (1968).
Contrary to the appellate court's reasoning, although Wellman's
property remained after his death, at issue is Murphy's
relationship to that property. Murphy was the guardian of Wellman's
estate. That relationship ended at the latest on July 3, 1991, when
Murphy was formally discharged, or on August 17, 1991, when Wellman
died.
Section 24--12 of the Probate Act of 1975 accords with the
general rule that a guardianship terminates with the death of the
ward, but subject to section 24--19. 755 ILCS 5/24--12 (West 1992).
Section 24--19(a) provides: "Without order of appointment and until
the issuance of letters testamentary or of administration OR UNTIL
SOONER DISCHARGED BY THE COURT, a representative of the estate of
a deceased ward has the powers and duties of an administrator to
collect." (Emphasis added.) 755 ILCS 5/24--19(a) (West 1992). In
the present case, Murphy was discharged prior to Wellman's death.
Accordingly, the general rule applies.
The appellate court's order lacks any reference to this
court's decision in Burgeson, where the court applied this
reasoning against Murphy. This court held that "Murphy's duties as
Burgeson's guardian terminated upon her death." Burgeson, 125 Ill.
2d at 487. We further held that Murphy had a legally recognizable
interest that existed following Burgeson's death--an unpaid
creditor of the estate. However, that interest terminated once
Murphy's office received its fees in the final account of the
estate. Burgeson, 125 Ill. 2d at 487-88; 755 ILCS 5/18--10 (West
1992).
Murphy unsuccessfully attempts to distinguish the present case
from Burgeson. Murphy first argues that in Burgeson the decedent's
estate was closed, while Wellman's estate is in probate and a will
contest is pending. Thus, "the decedent's estate in this case has
not been closed." However, Murphy's relationship to Wellman's
person and estate was closed on July 3, 1991, when Murphy was
formally discharged. Murphy also characterizes himself as an unpaid
creditor. However, he filed his final account of the estate, which
the trial court approved. Also, in his motion for leave to appeal,
Murphy stated to the trial court that he would not seek any fees
from Wellman's estate for work on the appeal. Burgeson controls the
outcome of this issue.
Murphy raises serious allegations impugning the professional
conduct of Young. If Murphy suspects Young of unethical conduct,
then he, like anyone else, can complain to the Attorney Registra-
tion and Disciplinary Commission. See Burgeson, 125 Ill. 2d at 488.
However, we hold that Wellman's restoration and death deprived
Murphy of standing to appeal from the denial of his petition to
sever the Wellman-Young joint tenancies. Consequently, the
appellate court erred in severing the joint tenancies.
Guardian Ad Litem Fees
"A guardian ad litem *** is entitled to such reasonable
compensation as may be fixed by the court to be taxed as costs in
the proceedings and paid in due course of administration." 755 ILCS
5/27--4 (West 1992). However, Young contends that the appellate
court erred in upholding the trial court's fee award to Thiel. We
note two surprising arguments of Young. He first argues that the
trial court lacked authority to award Thiel fees from the funds of
Wellman because she petitioned the court for fees "six months after
the Estate was closed and all assets of $955.23 distributed." Young
also argues that "[t]he size of this estate, $955.23, shows that an
award of $4,843.75 is excessive."
These arguments completely lack merit. Of course, Wellman's
"estate," in the context of his adjudication of mental disability,
was not limited to the balance of the cash receipts and
disbursements that Murphy handled during the guardianship. Rather,
Wellman's "estate" during the time of his adjudication of
disability consisted generally of all of his real and personal
property (see Black's Law Dictionary 547 (6th ed. 1990), citing
Uniform Probate Code §1--201(11); accord In re Estate of Anderson,
195 Ill. App. 3d 644, 650 (1990)), which totalled in the hundreds
of thousands of dollars. Thiel was properly awarded fees from the
assets that she was appointed to protect. See People v. Pasfield,
284 Ill. 450, 458 (1918); Nelson, 250 Ill. App. 3d at 288.
The questions of who must pay guardian ad litem fees and in
what amount rest within the discretion of the trial court. See In
re Estate of Dyniewicz, 271 Ill. App. 3d 616, 622-23 (1995);
Chicago Title & Trust Co. v. Czubak, 52 Ill. App. 3d 986, 989
(1977); Merneigh v. Merneigh, 2 Ill. App. 2d 352, 356 (1954). In
the present case, the trial court found that Thiel's hourly rate
and the number of hours that she billed were reasonable and
necessary. We cannot say that the trial court abused its discretion
in granting Thiel's fee petition.
Remaining Issues
We also agree with the appellate court that Wellman's death
rendered moot the numerous remaining issues raised by the parties.
"A case can become moot when, pending the decision on appeal,
events occur which render it impossible for the reviewing court to
grant effectual relief to either party." Bluthardt v. Breslin, 74
Ill. 2d 246, 250 (1979). The existence of a real controversy is an
essential prerequisite to appellate jurisdiction. Where the issues
involved in the trial court no longer exist, an appellate court
will not review the cause merely to decide moot or abstract
questions, to determine costs, or to establish a precedent. When,
pending an appeal from a judgment of a lower court, an event occurs
that renders it impossible for a court of review to grant any
effectual relief, the court will dismiss the appeal. La Salle
National Bank v. City of Chicago, 3 Ill. 2d 375, 378-80 (1954);
Tuttle v. Gunderson, 341 Ill. 36, 45-46 (1930).
In the present case, the appeals of Downing, Young, and Murphy
were pending in the appellate court when Wellman died on August 17,
1991. Downing contended, inter alia, that the adjudication of
Wellman as mentally disabled violated Wellman's due process rights.
Young also contended, inter alia, that the adjudication of mental
disability was void for several reasons. Murphy contended, inter
alia, that Wellman's restoration was against the manifest weight of
the evidence.
Wellman was the person who was allegedly improperly adjudi-
cated mentally disabled, and was the person who was allegedly
improperly restored. These issues obviously became moot with
Wellman's death.
For the foregoing reasons, the judgment of the appellate court
in cause Nos. 80182 and 80184 is reversed insofar as it severed the
Wellman-Young joint tenancies, and affirmed insofar as it dismissed
the remaining issues; the judgment of the appellate court in cause
No. 80246 is affirmed.
Nos. 80182, 80184--Appellate court affirmed in part
and reversed in part;
circuit court affirmed.
No. 80246--Affirmed.
CHIEF JUSTICE BILANDIC took no part in the consideration or
decision of this case.
JUSTICE HEIPLE, concurring in part and dissenting in part:
Having initially been adjudicated to be an incompetent, Mr.
Wellman was made a ward of the court and a guardian was appointed.
Later, the wardship was terminated and the guardian was discharged.
The guardian appealed. Soon thereafter, Mr. Wellman died.
The majority opinion holds, in part, that the termination of
the wardship and the discharge of the guardian deprived the
guardian of his standing to appeal. I disagree as a matter of
public policy. Trial courts can be wrong. In this case, for
instance, if the trial court was in error and misperceived Mr.
Wellman's true condition, the only way to protect his estate and to
remedy the situation would be to afford the discharged guardian a
right to appeal. We know, in fact, that, at an earlier time, Mr.
Wellman was found to be elderly, ill, confused, and unable to
properly care for himself. Surely, a restoration decision should at
least be subject to the possibility of review. Otherwise, an
erroneous order of restoration might facilitate the wasting and
dissipation of the former ward's estate. If, as the majority rules,
the former guardian has no right to take an appeal, then, quite
simply, there is no appeal since no one else is in a position to
bring it.
I, of course, agree with the majority's position that the
death of the ward terminated the guardian's standing to appeal.
However, on the salient and important point of whether a guardian
should be allowed to appeal a restoration order, I respectfully
dissent. As a matter of public policy, a guardian should retain the
right to appeal the restoration of a person previously declared to
be incompetent.
JUSTICE McMORROW joins in this partial concurrence and partial
dissent.
Bluthardt v. Breslin , 74 Ill. 2d 246 ( 1979 )
In Re Estate of Burgeson , 125 Ill. 2d 477 ( 1988 )
La Salle Nat. Bank v. City of Chicago , 3 Ill. 2d 375 ( 1954 )
Hire v. Hrudicka , 379 Ill. 201 ( 1942 )
Lewis v. Hill , 387 Ill. 542 ( 1944 )
Tuttle v. Gunderson , 341 Ill. 36 ( 1930 )