In re Estate of Walker

2014 IL App (1st) 132565THIRD DIVISION
December 3, 2014
No. 1-13-2565
In re ESTATE OF MARY LOU WALKER, a ) Appeal from the
Disabled Person ) Circuit Court of
(Mary Lou Walker, ) Cook County
)
Petitioner-Appellant, ) No. 11 P 6051)
v. ) Honorable
) Carolyn Quinn,
Robert F. Harris, Cook County Public ) Judge Presiding.
Guardian, as Limited Guardian of the Estate )
and Person of Mary Lou Walker, )
)
Respondent-Appellee). )
JUSTICE MASON delivered the judgment of the court, with opinion.
Justices Lavin and Hyman concurred in the judgment and opinion.
OPINION
¶1 Petitioner Mary Lou Walker appeals the trial court's order denying her petition for relief
under section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010))
seeking to vacate an order adjudicating her disabled and appointing a limited guardian of her
estate and person. Walker claims the trial court's order must be vacated because she was denied
effective assistance of counsel during the underlying proceedings where her court-appointed
counsel also served as her guardian ad litem creating a per se conflict of interest. Walker also
claims the lack of independent counsel and procedural deficiencies during the guardianship
proceedings deprived her of due process. Finally, Walker claims her section 2-1401 petition
should have been granted to prevent an "unfair, unjust, or unconscionable" result because she
1-13-2565
was not disabled after the order was entered. Finding no error in the denial of Walker's section 2-
1401 petition, we affirm.
¶2 BACKGROUND
¶3 In September 2011, the North Shore Senior Center located in Northfield, Illinois
contacted the public guardian's office regarding Walker. On October 11, 2011, Dr. Geoffrey
Shaw, a board-certified geriatric psychiatrist, evaluated Walker at the North Shore Senior Center
and prepared a written independent medical evaluation. At the time of the evaluation, Walker
was 72 years old. According to the evaluation, Walker's house was in violation of multiple
housing codes and plans existed to demolish it. As a result of the housing code violations,
Walker could not live in her house and was living in her car located in a grocery store parking
lot. After her car was totaled in an accident, Walker began residing in motels.
¶4 Dr. Shaw identified Walker as suffering from dementia and experiencing deficits in her
short-term memory with severely impaired executive functioning. Based on his evaluation of
Walker and his expertise as a board-certified geriatric psychiatrist, it was Dr. Shaw's opinion to a
reasonable degree of medical and psychiatric certainty that Walker was "totally incapable of
making her own personal and financial decisions." Dr. Shaw noted that Walker did not believe
she required a guardian. The written evaluation was filed with the trial court on October 17,
2011.
¶5 On October 17, 2011, the office of the Cook County public guardian filed a petition for
the temporary appointment of a guardian of Walker's estate and person. The public guardian
indicated that Walker, who identified herself as a former practicing attorney, was a 72-year-old
woman with a diagnosis of dementia. The petition stated Walker's home was uninhabitable and
-2-
1-13-2565
the Village of Northbrook obtained a no-occupancy order and was seeking demolition. 1 The
petition also stated Walker had been living in her car with her longtime male companion until an
accident "totaled" the car. On October 17, 2011, the trial court entered an order appointing
Kathleen Meersman-Murphy as guardian ad litem for Walker. The order directed Meersman-
Murphy to: (1) interview Walker; (2) inform her orally and in writing of the petition's contents
and of her rights under section 11a-11 of the Illinois Probate Act of 1975 (755 ILCS 5/11a-11
(West 2010)); (3) elicit Walker's position regarding guardianship; and (4) file a written report.
¶6 Meersman-Murphy made several unsuccessful attempts to contact Walker before seeking
the assistance of a social worker at North Shore Senior Center. On October 19, 2011, the social
worker met Meersman-Murphy at the Best Western motel in Morton Grove where Walker had
been staying. Meersman-Murphy knocked on the door of room 109 and Walker's male
companion answered the door and invited her into the room to wait for Walker, who was
indisposed. The motel room was very cluttered with boxes stacked from floor to ceiling on two
of the walls and two dogs were also in the room.
¶7 After Walker came out of the bathroom, Meersman-Murphy introduced herself and
explained the nature of her visit. Walker was properly attired, but she became increasingly more
agitated as their conversation continued. Meersman-Murphy reviewed with Walker the
"Statement of Rights and Petitions for Temporary and for Plenary Guardianship" orally and
provided her with the statutory required written statement of rights pursuant to section 11a-11.
Walker refused to accept the written statement of rights or copies of the petition and threatened
to rip them up. Walker acknowledged the hearing scheduled for the following day and
1
The legal proceedings relating to the condemnation and demolition of Walker's house
are not part of this appeal, and those proceedings were pending when the trial court entered the
order appointing a limited guardian of Walker's estate and person.
-3-
1-13-2565
Meersman-Murphy stressed the importance of her attending that court proceeding. Walker
repeatedly told Meersman-Murphy she would hire her own lawyer, she did not want a court-
appointed lawyer and she did not want the office of public guardian to become her guardian.
Meersman-Murphy informed Walker of Dr. Shaw's report and Walker claimed "he only asked
stupid questions" and denied any difficulty answering his questions.
¶8 On October 20, 2011, the trial court held a hearing on the return of the petition for
appointment of temporary guardian, and Walker was present at that hearing even though she had
not yet been formally served with the petition. The trial court continued the matter for status on
November 28, 2011, and directed Meersman-Murphy to meet with Walker personally or with
counsel prior to the next hearing.
¶9 On October 24, 2011, Walker was personally served with the summons and a copy of the
petition for appointment of guardian.
¶ 10 After the court hearing on October 20, Meersman-Murphy attempted to visit Walker
again on November 27, 2011, following a message she left for Walker on November 25,
informing her of the importance of her visit. Meersman-Murphy returned to the motel room that
day and despite hearing noises from inside the room, no one answered the door. Meersman-
Murphy left a note on the door advising Walker of the need for her to appear in court on the
following day, and if she failed to appear, the court would likely appoint a guardian of her estate
and person.
¶ 11 Meersman-Murphy filed a guardian ad litem report on November 28, 2011. After
describing her visits with Walker and summarizing Dr. Shaw's findings, Meersman-Murphy
stated Walker did not believe she needed a guardian and she did not want court-appointed
counsel; instead, she planned to hire another attorney.
-4-
1-13-2565
¶ 12 Walker failed to appear for the November 28, 2011 hearing. Meersman-Murphy again
informed the trial court that Walker maintained she was going to hire an attorney, but had not yet
retained one. The trial court ordered Walker to appear in court with counsel on December 12,
2011; the order also provided that if Walker did not have counsel on that date, the trial court
would appoint an attorney for her. The record reflects that a copy of the court's November 28,
2011 order was mailed to Walker on November 29, 2011.
¶ 13 At the next status hearing on December 12, Walker again failed to appear. Meersman-
Murphy informed the trial court that Walker did not yet have an attorney, but Walker was
requesting the trial court to appoint an attorney familiar with this area of the law. The trial court
appointed Meersman-Murphy as Walker's counsel and continued the case to January 19, 2012.
The record also reflects that a copy of the court's December 12, 2011 order was mailed to Walker
on December 13, 2011.
¶ 14 Walker again failed to appear in court on January 19, 2012. Meersman-Murphy informed
the trial court that Walker told her not to visit her again and she wanted a different attorney. The
trial court did not believe it was appropriate to appoint another attorney without Walker present
in court and specified that when Walker next appeared in court, the court would make it clear to
her that another attorney would be appointed to represent her. The trial court entered an order
continuing the matter to February 6, 2012, ordered Walker to appear in court on that date and
directed that until then, Meersman-Murphy would act as Walker's counsel. On February 6, 2012,
Walker failed to appear in court. The trial court continued the matter for status on February 22,
2012, and set the case for trial on April 24 and 25, 2012.
¶ 15 On February 22, 2012, Walker appeared in court for the status hearing. Meersman-
Murphy informed the trial court that the public guardian's office had made a proposed settlement
offer providing for the appointment of a limited guardian and Walker wanted an opportunity to
-5-
1-13-2565
read the offer more carefully. The trial court informed Walker that she had counsel appointed for
her benefit. Walker reiterated that she did not want a public guardian and stated that she was not
disabled yet. The trial court also informed Walker that if she did not agree to the proposed
settlement, trial on the matter was set for late April. Walker asked the trial court, "[w]hat if I
don’t wish to proceed?" The trial court responded that Walker should let counsel know because
the trial could be rescheduled. Walker asked, "So I would tell her if I did not want to have the
trial?" and the court responded "[a]bsolutely." Walker said nothing during this hearing about her
desire for the appointment of another lawyer.
¶ 16 On the scheduled trial date of April 24, 2012, Meersman-Murphy informed the trial court
that the parties had reached a settlement and that Walker had executed the agreed order
providing for the appointment of a limited guardian of her estate and person. Walker was not
present in court, and the trial court noted her presence was waived because she executed the
agreed order. The trial court entered the agreed order appointing the Cook County public
guardian as the limited guardian of Walker's estate and person. The court also discharged
Meersman-Murphy as Walker's counsel with leave to file a fee petition within 30 days. The trial
court further entered a "Statement of Right to Discharge Guardian or Modify Guardianship
Order" notifying Walker she had been adjudged a disabled person, a guardian had been
appointed for her and that she had the right to ask the court for assistance in modifying or
discharging the guardian if she believed there was a change in her circumstances.
¶ 17 On May 22, 2012, Meersman-Murphy filed a petition for attorney fees totaling $5,676.75
for services rendered in her roles as guardian ad litem and counsel. In the petition, Meersman-
Murphy stated she was appointed guardian ad litem on October 17, 2011 and acted in that
-6-
1-13-2565
capacity until January 19, 2012. She also stated the trial court appointed her as counsel on
January 19, 2012 and she remained in that capacity until discharged on April 24, 2012.2
Meersman-Murphy's representation in the fee petition that the trial court appointed her as
counsel on January 19, 2012, appears to be an inadvertent error because the record clearly
reflects the trial court appointed her as Walker's counsel on December 12, 2011. Moreover,
Meersman-Murphy's invoice for professional services rendered demonstrates she was acting as
counsel after December 12, 2011 because in an entry dated December 13, 2011, Meersman-
Murphy sent Walker a letter and the court's December 12, 2011 order advising Walker she was
appointed as her counsel, and another entry dated January 5, 2012 related to discovery. On June
19, 2012, the trial court entered an order granting attorney fees to Meersman-Murphy in the
amount of $5,676.25 payable from Walker's assets for services rendered both as guardian ad
litem and as counsel for Walker.
¶ 18 More than five months later on December 3, 2012, Walker through new counsel filed a
section 2-1401 petition seeking to vacate the trial court's April 24, 2012 agreed order appointing
a limited guardian of her estate and person. On December 10, 2012, the public guardian filed a
motion to strike the petition because Walker's attorney had not filed an appearance, the petition
was not supported with affidavits and was defective for lack of proper service. That same day,
Walker filed her response to the motion to strike. On December 10, 2012, the trial court entered
an order striking Walker's section 2-1401 petition for lack of proper service and failure to seek
leave of court prior to filing the petition. The trial court also granted Walker's counsel leave to
file an appearance for the limited purpose of filing a section 2-1401 petition.
2
Although the trial court discharged Meersman-Murphy as counsel on April 24, 2007,
the fee petition included an entry on April 27, 2012 relating to a letter Meersman-Murphy sent to
Walker along with a copy of the trial court's April 24, 2012 order.
-7-
1-13-2565
¶ 19 On December 19, 2012, instead of filing a section 2-1401 petition, Walker filed a petition
to vacate pursuant to section 2-1301 of the Illinois Code of Civil Procedure (735 ICLS 5/2-1301
(West 2010)) asserting, in part, that the 30-day limitation for filing that motion was tolled
because she was under a legal disability from the date of the order adjudicating her disabled. On
January 25, 2013, the public guardian filed a response in opposition to Walker's petition arguing,
in part, that the petition was untimely. On February 21, 2013, the trial court denied Walker's
section 2-1301 petition.
¶ 20 On April 4, 2013, Walker filed a second section 2-1401 petition seeking to vacate the
April 24, 2012 agreed order on the grounds that the trial court failed to both provide Walker with
proper notice of the judgment and follow required statutory procedures relating to the disability
petition and hearing. The public guardian opposed Walker's latest petition, asserting that no
affidavits or any other material outside the record supporting Walker's claims were attached to
the petition, no meritorious defense was stated and Walker failed to diligently present her alleged
meritorious defense at the time of the original adjudication of disability.
¶ 21 On June 6, 2013, the trial court held a hearing on Walker's second section 2-1401
petition. Both Walker and her attorney were present, as were representatives from the public
guardian's office. The trial court noted that attempted service on the public guardian by certified
mail was not adequate because an individual other than the addressee signed for the mail, and
there was no affidavit of any personal service or service by publication. Despite the defective
service, the court proceeded to address the merits of Walker's petition. The trial court found that
Walker failed to demonstrate a right to relief under section 2-1401. The trial court stated Dr.
Shaw's written evaluation supported a finding of disability despite Walker's claim that she was
not disabled and further noted Walker's failure to provide any factual support for her claim that
she was not disabled. The trial court also stated Walker's claims regarding the denial of due
-8-
1-13-2565
process and ineffective assistance of counsel were not causes of action supporting relief under
section 2-1401 and Walker was not diligent in presenting any defense to the trial court in the
underlying action. The trial court continued the matter to allow Walker to supplement the
petition with a supporting affidavit regarding service.
¶ 22 On July 16, 2013, the trial court held another hearing on Walker's section 2-1401 petition.
The public guardian advised that service had been effected. The trial court found that Walker
failed to present facts demonstrating a meritorious defense, i.e., that she was not disabled or in
need of a guardian, and in the absence of those facts, there was no reason to believe that a new
trial would yield a different outcome. Thus, the trial court denied Walker's section 2-1401
petition. Walker timely appealed.
¶ 23 ANALYSIS
¶ 24 On appeal, Walker contends the trial court erred in denying her section 2-1401 petition
on the ground that the agreed order adjudicating her disabled and appointing a limited guardian
of her estate and person was void because she was denied effective assistance of counsel and her
due process rights were violated. Walker claims she was denied effective assistance of counsel
because her appointed counsel had a per se conflict of interest by serving both as Walker's
guardian ad litem and her appointed counsel. Walker asserts the trial court never discharged
Meersman-Murphy as guardian ad litem and the per se conflict of interest violated her right to
counsel resulting in a denial of due process. Walker asserts her due process rights were also
violated because the trial court denied her counsel even though she requested appointment of
counsel on December 12, 2011 and January 19, 2012. For these reasons, Walker contends her
section 2-1401 petition should have been granted.
-9-
1-13-2565
¶ 25 Section 2-1401 allows a court to vacate a final judgment after more than 30 days. People
v. Vincent, 226 Ill. 2d 1, 7 (2007) (citing 735 ILCS 5/2-1401 (West 2002)). Relief under section
2-1401 is provided to a petitioner who proves, by a preponderance of evidence, each of the
following elements: "(1) the existence of a meritorious defense or claim; (2) due diligence in
presenting this defense or claim to the circuit court in the original action; and (3) due diligence in
filing the section 2-1401 petition for relief." Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21
(1986). A trial court may dismiss a section 2-1401 petition where, even taking as true its
allegations, it fails to state either a meritorious defense or diligence in presenting the defense.
Vincent, 226 Ill. 2d at 8; People v. Pinkonsly, 207 Ill. 2d 555, 565 (2003). For purposes of
section 2-1401, a meritorious defense involves an error of fact or the existence of a valid defense
that was not presented to the trial court. Airoom, 114 Ill. 2d at 222 (quoting Brockmeyer v.
Duncan, 18 Ill. 2d 502, 505 (1960)); see Pinkonsly, 207 Ill. 2d at 565 (a meritorious defense
involves an error of fact, not law). A section 2-1401 petition "requires the court to determine
whether facts exist that were unknown to the court at the time of trial and would have prevented
entry of the judgment." Pinkonsly, 207 Ill. 2d at 566. A meritorious defense and due diligence,
however, need not be shown where the judgment or order is void. Sarkissian v. Chicago Board
of Education, 201 Ill. 2d 95, 104 (2002).
¶ 26 In Vincent, the Illinois Supreme Court held that a de novo standard of review applies
where a trial court enters judgment on the pleadings or dismisses a section 2-1401 petition.
Vincent, 226 Ill. 2d at 18. Following Vincent, decisions of this court have recognized that Vincent
addressed a judgment that was being challenged for voidness, but did not involve the due
diligence, meritorious defense and two-year limitation requirements that apply to other actions
brought under section 2-1401. Cavalry Portfolio Services v. Rocha, 2012 IL App (1st) 111690, ¶
10 (citing Rockford Financial Systems, Inc. v. Borgetti, 403 Ill. App. 3d 321, 326-27 (2010), and
- 10 -
1-13-2565
Blazyk v. Daman Express, Inc., 406 Ill. App. 3d 203, 206 (2010)). Those subsequent decisions of
our court apply a de novo standard in reviewing whether a petitioner presented a meritorious
defense, an issue of law, and apply the abuse of discretion standard in reviewing whether the
petitioner complied with due diligence requirements, an issue dependent on findings of fact. Id.Under either standard, Walker's arguments fail.
¶ 27 Before addressing the merits of Walker's claims, we reject Walker's contention that the
underlying judgment was void given that the trial court indisputably possessed both personal and
subject matter jurisdiction. Walker acknowledges on appeal that she received a summons in the
underlying proceedings, and the Probate Act confers jurisdiction upon the trial court to hear and
adjudicate disability and guardianship matters. 755 ILCS 5/11a-3 (West 2010); In re Estate of
Steinfeld, 158 Ill. 2d 1, 12 (1994). Consequently, because the underlying order was not void,
Walker must establish a meritorious defense or claim and due diligence in presenting the
meritorious defense or claim in the underlying proceeding and in bringing the section 2-1401
petition. Sarkissian, 201 Ill. 2d at 104-05. Walker failed to prove any of the elements necessary
to the success of her section 2-1401 petition.
¶ 28 Walker claims she is entitled to relief under section 2-1401 because she was denied
effective assistance of counsel. Walker frames her argument as an ineffective assistance of
counsel claim, but we must clarify that the concept of "effective assistance of counsel" is a
constitutional right afforded to defendants in criminal proceedings. Pinkonsly, 207 Ill. 2d at 567.
In contrast, guardianship proceedings are governed by statutory authority, and the Probate Act
provides that the trial court may appoint counsel if it finds the respondent's interests are best
served by the appointment and counsel shall be appointed upon a respondent's request. 755 ILCS
5/11a-10 (West 2010). Thus, the constitutional right to counsel and the right to "effective
assistance of counsel" that are paramount in criminal proceedings are not applicable to the
- 11 -
1-13-2565
statutory guardianship proceedings presented here. Moreover, the law is well established that
ineffective assistance claims are not properly raised in section 2-1401 proceedings because such
claims do not challenge the factual basis for the trial court's judgment. Pinkonsly, 207 Ill. 2d at
567. Although Walker erroneously labels her claims as "ineffective assistance of counsel," she is
really arguing that the individual appointed to represent her interests during the guardianship
proceedings served in a prohibited dual role of guardian ad litem and counsel creating a per se
conflict of interest. Consequently, we must determine if Meersman-Murphy simultaneously acted
as both guardian ad litem and counsel.
¶ 29 To establish that Meersman-Murphy served in a prohibited dual capacity, Walker relies
on the seminal case of People v. Austin M., 2012 IL 111194, but such reliance is misplaced. In
Austin, the trial court did not expressly appoint an attorney as a minor's guardian ad litem, but
our supreme court found that defense counsel acted more as a guardian ad litem than as a defense
attorney. Id. ¶ 104. The Austin court held that "the interests of justice are best served by finding a
per se conflict when minor's counsel in a delinquency proceeding simultaneously functions as
both defense counsel and guardian ad litem." (Emphasis added.) Id. ¶ 86. The court reasoned a
per se conflict of interest arises because a guardian ad litem advocates the best interests of the
minor (which may or may not coincide with the wishes of the minor) and presents
recommendations to the court consistent with that duty whereas defense counsel's obligations run
solely to the minor client. Id. ¶¶ 69, 77, 85, 86. Because the Austin court found that counsel
labored under a per se conflict, the court reversed the minor's adjudication and remanded the
matter for further proceedings. Id. ¶ 106.
¶ 30 Austin is distinguishable because, here, Meersman-Murphy never simultaneously acted as
Walker's guardian ad litem and attorney. The record reveals the trial court appointed Meersman-
Murphy as Walker's guardian ad litem on October 17, 2011 and as her attorney on December 12,
- 12 -
1-13-2565
2011. During the November 28, 2011 and December 12, 2011 status hearings, Meersman-
Murphy introduced herself as Walker's guardian ad litem. During the January 19, 2012 status,
Meersman-Murphy introduced herself as court-appointed counsel, previously guardian ad litem.
During the April 24, 2012 status, Meersman-Murphy again introduced herself as court-appointed
counsel for Walker. In response to the trial court's question, Meersman-Murphy responded "yes"
when asked whether she was the original guardian ad litem. Contrary to Walker's claims,
Meersman-Murphy's representations as reflected in the transcripts of these proceedings establish
she did not simultaneously serve as Walker's guardian ad litem and counsel. The fact that the
trial court did not enter a specific order terminating Meersman-Murphy's appointment as
guardian ad litem at the time she was appointed to act as Walker's counsel is insufficient to
support Walker's conflict argument when the record otherwise reflects that both Meersman-
Murphy and the court understood that she was acting in two different capacities. Moreover,
Walker points to no authority precluding an individual from serving as counsel following the
termination of the role as guardian ad litem. Finally, Walker fails to clearly specify with
supporting facts what actions Meersman-Murphy allegedly took as guardian ad litem after the
trial court appointed her as Walker's counsel.
¶ 31 It is undisputed that Meersman-Murphy initially acted in the capacity of guardian ad
litem as evidenced by the "report of guardian ad litem" she completed, filed and discussed during
the November 28, 2011 status hearing. Meersman-Murphy reported that Walker did not believe
she needed a guardian and stated she did not want court-appointed counsel; instead, she planned
to hire another attorney. As Walker acknowledges on appeal, Meersman-Murphy did not take a
position on the necessity of guardianship. But Meersman-Murphy did report her observations of
Walker, Dr. Shaw's findings and Walker's position regarding the guardianship. Walker asserts
that because an individual serving as a guardian ad litem may be required to testify during the
- 13 -
1-13-2565
hearing regarding any issue presented in the report, Rule 3.7 of the Illinois Supreme Court Rules
of Professional Conduct (Ill. R. Prof. Conduct (2010) (eff. Jan. 1, 2010)) is implicated. Rule 3.7
generally precludes a lawyer from acting "as advocate at a trial in which the lawyer is likely to
be a necessary witness." Walker reasons that Meersman-Murphy, as guardian ad litem and later
her counsel could have been called as a witness at trial, thus violating Rule 3.7. Here, as the trial
court noted, an agreed order was entered and there was no trial, which also eliminated the
possibility that Meersman-Murphy would be required to testify as to matters in the report. Thus,
Rule 3.7 was inapplicable and the potential conflict identified by Walker was an insufficient
basis to support relief from the agreed order under section 2-1401.
¶ 32 Walker also claims the trial court erred in denying her section 2-1401 petition because
she was denied due process during the underlying proceedings. Walker claims her due process
rights were violated because she was denied her right: (1) to be represented by counsel; (2) to a
guardian ad litem; and (3) to counsel free from conflict. Walker further claims the trial court
failed to follow the proper procedures because the trial court: (1) appointed a limited guardian
without her presence in court; (2) failed to inform her of her rights to seek modification or to
petition for termination of adjudication of disability; (3) erred in finding clear and convincing
evidence of her disability; (4) erred in relying on Dr. Shaw's report; (5) failed to adequately
inquire into her functioning or extent of impairment; and (6) failed to factually state the reasons
supporting its appointment of a guardian. Because of these procedural deficits, Walker contends
the agreed order appointing a limited guardian must be vacated.
¶ 33 Walker's due process claims do not entitle her to relief under section 2-1401. The record
reveals that Walker, through Meersman-Murphy, requested the appointment of counsel on more
than one occasion, but when afforded multiple opportunities to appear in court with counsel of
her choosing, she failed to do so. Specifically, during the November 28, 2011 and January 19,
- 14 -
1-13-2565
2012, status hearings when Walker was not present in court, the trial court declined to appoint
new counsel in Walker's absence and ordered Walker to appear in court to determine if she had
retained an attorney or if the court should appoint one for her. When Walker appeared in court at
the next hearing date on February 22, 2012, she objected to the appointment of a public guardian,
but did not express any dissatisfaction with Meersman-Murphy as her attorney or request the
court to appoint a different attorney. Thus, trial court acted appropriately to afford Walker the
opportunity to retain counsel of her own choosing and when Meersman-Murphy informed the
court that Walker desired the appointment of another attorney, the court was willing to
accommodate Walker's request. On this record, when Walker appeared on February 22, 2010,
and when Meersman-Murphy informed the court that the public guardian had made an offer that
Walker wanted to consider and Walker did not insist on the appointment of counsel other than
Meersman-Murphy, the trial court could justifiably assume that Walker no longer desired
substitute counsel.
¶ 34 Walker's other alleged procedural deficiencies relating to the hearing to appoint a
guardian also do not entitle her to relief under section 2-1401. Regarding her lack of presence in
court when the trial court appointed the limited guardian, Walker correctly refers to section 11a-
11(a) of the Probate Act, which states in relevant part that "unless excused by the court upon a
showing that the respondent refuses to be present or will suffer harm if required to attend, the
respondent shall be present at the hearing." 755 ILCS 5/11a-11(a) (West 2010). During the
scheduled April 24, 2012 trial date, Meersman-Murphy presented the trial court with an agreed
order, which Walker executed, appointing the public guardian as the limited guardian of
Walker's estate and person. The trial court acknowledged Walker was not present during the
hearing, but deemed her presence waived because she executed the agreed order and therefore,
her presence was unnecessary. We agree with the trial court because on the scheduled trial date,
- 15 -
1-13-2565
the trial court merely adopted the agreed order Walker previously executed. We note the trial
court also informed Walker during the February 22, 2012 status, in response to Walker's inquiry
regarding the possibility that she might not want to proceed with the trial, that she should inform
her counsel if she did not wish to go forward. Therefore, given Walker's execution of the agreed
order (which she does not deny), the trial court properly entered that order in Walker's absence.
¶ 35 Moreover, paragraph 11 of the agreed order addressed the required statutory notice
regarding modification of the appointment order or petition for termination of adjudication of
disability and directed the trial court's clerk to mail the notice to Walker. Walker's signature
appears immediately below this paragraph giving rise to the reasonable presumption she
acquiesced to the mailing of the required notice in light of her absence at the hearing. Regardless
of the method of delivery of the notice to Walker, she was informed about her rights to seek
modification of guardianship or termination of the adjudication of disability.
¶ 36 Walker further asserts the trial court erred procedurally when it failed to enter an order
listing its factual findings supporting guardianship. Although the trial court did not separately
enter such an order, the trial court stated the basis for its findings during the April 24, 2012
hearing and the agreed order listed the reasons why the court found clear and convincing
evidence that Walker was disabled and required appointment of a limited guardian of her estate
and person. The court's findings were based in part on Dr. Shaw's report. Walker articulates no
compelling reason why the trial court should not have relied on Dr. Shaw's report. The report
was based on Dr. Shaw's evaluation of Walker and his expertise as a board certified geriatric
psychiatrist. Section 11a-2 of the Illinois Probate Act (755 ILCS 5/11a-2 (West 2010)) defines a
"disabled person" as "a person 18 years or older who (a) because of mental deterioration or
physical incapacity is not fully able to manage [her] person or estate." Under section 11a-3(a) of
the Illinois Probate Act (755 ILCS 5/11a-3(a) (West 2010)), "the court may adjudge a person to
- 16 -
1-13-2565
be a disabled person, but only if it has been demonstrated by clear and convincing evidence that
the person is a disabled person as defined in Section 11a-2." Upon an adjudication that a person
is disabled, the trial court may appoint a guardian of his person and of his estate. Id. Dr. Shaw's
report supported the trial court's finding that Walker was a "disabled person" based on clear and
convincing evidence and upon that finding, the trial court had the power to appoint a guardian of
her person and estate. Walker gives us no reason to find that Dr. Shaw's report was not credible
or reliable. Because we find no procedural errors denying Walker due process, we must reject
Walker's claim that those procedural errors entitled her to relief under section 2-1401. Even if we
were to assume procedural deficiencies relating to the disability proceedings existed, those
requirements are procedural, not jurisdictional and the guardianship order was still a valid order.
In re Estate of Steinfeld, 158 Ill. 2d at 16.
¶ 37 Lastly, Walker argues the trial court should have invoked its equitable powers to prevent
enforcement of the order appointing the limited guardian, the enforcement of which would be
"unfair, unjust and unconscionable." Given our finding that all of the claims Walker raised as a
basis for relief under section 2-1401 lack merit, there equally is no basis to vacate the agreed
order on general equity principles.
¶ 38 In sum, Walker failed to clearly set forth and support with facts what the newly
discovered evidence is that would have prevented the trial court from entering the order in the
underlying proceeding had it known those facts. See Blutcher v. EHS Trinity Hospital, 321 Ill.
App. 3d 131, 135-36 (2001) (noting that the purpose underlying a section 2-1401 petition is to
allow the petitioner to raise in the trial court facts that are absent from the record, but, if the facts
had been known, the trial court would not have entered the judgment that it did in the underlying
proceedings). Walker has not established that enforcing the appointment of the limited guardian
of her estate and person would be "unfair, unjust, or unconscionable." Consequently, Walker
- 17 -
1-13-2565
failed to meet the requirements for relief under section 2-1401 and the trial court did not err in
denying her petition.
¶ 39 CONCLUSION
¶ 40 For the reasons stated, the trial court's ruling denying Walker's section 2-1401 petition is
affirmed.
¶ 41 Affirmed.
- 18 -