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.