Articles Posted in Guardianships

Audrey Mivelaz had $9 million in assets and no estate plan, no testamentary capacity and no known heirs. However, she had several close, loving friends who knew her for decades and helped care for her as she sank into dementia. After an unsuccessful search for heirs, the plenary guardian of her estate after her guardianship was established and received authority from a Cook County judge to deviate from the intestacy statute by creating a trust and will that benefited the friends and several charities. However, ten supposed heirs surfaced after Mivelaz died.

The principal question in this case for the Illinois Appellate Court was the alleged heirs, who challenged the estate-plan order, arguing that it was void because they weren’t notified of the proceeding. Further, the alleged heirs argued that the guardianship judge no longer had subject matter jurisdiction based on the Illinois Supreme Court case of In re Estate of Gebis, 186 Ill.2d 188 (1999).

Although the Illinois Appellate Court concluded that the guardianship court had constitutional authority to adjudicate the alleged heirs’ attack on the trust and will, the First District affirmed because (1) the guardian conducted a reasonably thorough search for relatives and heirs and (2) unknown heirs received adequate notification by publication and service on the Cook County State’s Attorney.

Continue reading

Jose Adame paid $145,000 for a house that was being sold by joint tenants, Arnold and Arthur Lynch. There was a problem with the warranty deed that Arnold signed in June 2005.

In 2002, Arnold was in a coma following a car accident. The judge appointed James Brya as plenary guardian of Arnold’s estate and person. Arnold eventually regained consciousness. But the guardianship was never canceled. This meant that the warranty deed signed by Arnold, who was still under the court’s guardianship orders, was invalid or void.

Arnold died intestate ten months after the closing, leaving Arthur as the sole heir. In 2009, the Cook County public guardian was appointed as plenary protector of Arthur’s estate and person.

Continue reading

Richard Yanni appealed from the trial court’s order that imposed a constructive trust on property he owned and awarded attorney fees and punitive damages against him. The appellate court ruled that the trial court was wrong in denying his motion to dismiss. Accordingly, the Illinois Appellate Court vacated the trial judge’s judgment in favor of the petitioner Diana Law, the Kane County Public Guardian, and reversed the trial judge’s denial of Yanni’s motion to dismiss.

In March 2013, an emergency temporary guardianship brought by the daughter of Patricia Yanni ordered that Patricia was a disabled person. In the petition brought by Patricia’s daughter, Kristin Davison, it was alleged that Patricia Yanni was unable to handle personal and financial affairs due to her dementia and physical illnesses.

Davison alleged that Patricia’s son, Richard, who lived with Patricia, “was found to be neglecting his mother.” Patricia had been removed from her home and placed in a skilled nursing facility. Davison wanted to have the public guardian appointed as guardian of her mother’s estate and to have herself appointed as guardian of her mother. The trial judge granted that petition appointing Davison as temporary guardian with leave to place her mother in an appropriate facility. The court appointed Law, the Kane County Public Guardian, as temporary guardian of Patricia Yanni’s estate. The court also appointed a guardian ad litem (GAL).

Continue reading

In a case involving Donald Howell, who was born with profound cognitive impairment and who had received a settlement of $11 million from a Chicago landlord from lead-poisoning, the issue here was, could the court “substitute judgment” on where his money would go at the time of his death? Relying on the “substituted judgment” doctrine, his co-guardians, Northern Trust Co. and LaTanya Turks, argued that Donald would want his money to go to Turks, his mother and full-time caretaker, rather than also being shared under Illinois Intestacy Law with family members, which included his father and ten half-siblings born to ten different women who allegedly had no significant role in his life.

Under the Illinois Probate Act, Section 11a-18(a-5) authorizes guardians to draft estate plans that depart from the default formula for distributing a decedent’s assets. That section of the statute, which refers to acting “in keeping with the ward’s wishes so far as they can be ascertained,” also says the “ward’s wishes, as best they can be ascertained, shall be carried out.”

In this probate matter, the “ward’s wishes” provisions were in conflict with the court- appointed guardian ad litem who opposed the estate plan suggested by Northern Trust and Turks. According to the guardian ad litem, the proposed estate plan was improper because Donald never had testamentary capacity and could not express any wishes about who would inherit his money on his death.

Continue reading

The Illinois Appellate Court has affirmed the decision by a Cook County associate judge who ordered the removal of the guardian of a disabled person.

On Feb. 24, 2009, Patricia Herard was adjudicated by the court to be disabled. Herard was diagnosed with “profound mental retardation and legal blindness.”  It was also reported that she has epilepsy, behavior reminiscent of autism and functioning “in the age ranges of 9 months to just fewer than 3 years.” Patricia’s mother was appointed her legal guardian.

An agreement was signed and delivered to the court between Herard’s parents, her guardian ad litem and the Bank of America.  The agreement required Herard’s parents to grant reasonable access to Herard for a court-appointed case manager, in this case, Rehab Assist Guardianship Services.  The reasonable access was intended to include both announced and unannounced visits.

Continue reading