Competency and Laws of Descent Analyzed in Illinois Appellate Court Decision Regarding the Assets of a Ward with Profound Cognitive Impairment

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.

“The trial court ruled as a matter of law that because Donald was born with profound cognitive deficits and has never expressed testamentary capacity, his wishes could not be ascertained and any estate plan must follow the rules of intestacy.”

The Illinois Appellate Court reversed and remanded for an evidentiary hearing explaining that “reading the relevant sections of the Probate Act together, the preferred approach to estate planning is to follow the ward’s subjective wishes, to the extent those wishes can be ascertained, but the overriding principle is to act in the ward’s objective ‘best interest.’”

This two-step approach to a disabled ward’s care is well established. Under what is known as “substituted judgment,” a surrogate decision-maker will attempt to determine and show the court, with as much accuracy as possible, what decision the ward would make if he were competent to do so. If the ward’s competent wishes cannot be clearly proved, the court will be guided by the more objective “best interest’ standard.”

And “although Donald’s cognitive deficits have thus far prevented him from expressing his wishes for his estate, the estate guardian is generally empowered to act in Donald’s best interest, which may mean deviating from intestacy.”

According to the opinion written by Justice Margaret McBride, the Probate Act twice mandates that the ward’s wishes and essential consideration of the guardian and the court. The guardian’s action shall be “in keeping with the ward’s wishes so far as they can be ascertained” and the “ward’s wishes as best they can be ascertained shall be carried out.” 755 ILCS 5/11a-18.

The court stated that the General Assembly did not indicate that when a ward is incapable of forming and communicating specific wishes, a guardian’s efforts to act on the ward’s behalf are stymied.

When the ward’s wishes are not sufficiently comprehended or in his or her best interest, the statute’s wording indicates that the General Assembly anticipated that it will not always be possible to clearly ascertain an act on the ward’s specific wishes.

In such cases, the guardian would have to consider the specific statutory language that authorizes estate planning in the context of the other sections of the Probate Act that generally govern a guardian’s actions. Section 11a-18 in particular indicates that the estate guardian may act “for any other purpose which the court deems to be the best interests of the ward.”

Thus, reading the relevant sections of the Probate Act together, the preferred approach to estate planning is to follow the ward’s subjective wishes, to the extent those wishes can be ascertained, but the overriding principle is to act in the ward’s objective “best interests.”

The doctrine of “substituted judgment” has its origins in English cases addressing the ability of the court to authorize the distribution of a portion of the incapacitated person’s income or assets to others, usually family members.

The court referred to the fact that a guardian of an incapacitated ward is permitted to exercise independent decision-making especially with regard to healthcare and financial estate planning decisions. As an example, an incapacitated individual might be unable to make gifts to take advantage of a gift tax annual exclusion or, medical treatment might be administered that may be inappropriate or undesired. In these circumstances, it arguably can be said that an individual’s incapacity should not put him or her in a different position from those who still have the capacity to make their own decisions.

The appellate court was not persuaded by the guardian ad litem’s argument that Donald’s permanent disability should thwart the co-guardian’s attempts to act in Donald’s best interest. The statute states that “the court must consider . . . the natural objects of the ward’s bounty.” 755 ILCS 5/11a-18. The guardian ad litem ties this language to Donald’s lack of testamentary capacity. However, testamentary capacity consists of “the ability to know and understand the natural objects of one’s bounty, the nature and extent of one’s property and to form a plan to dispose of the property.” Estate of Jones, 159 Ill.App.3d 357 (1987).

The guardian ad litem contends that Donald’s lack of testamentary capacity precludes the proposed estate plan that would benefit Turks and disinherit the father and the father’s additional children. This is incorrect. No part of the statute requires Donald to have testamentary capacity. Instead, it is not the ward, but “the court [that] must consider . . . the natural objects of the ward’s bounty.” 755 ILCS 5/11a-18.

Consistent with that statutory language, the co-guardians have asked the court to consider the natural objects of Donald’s bounty and determine that Donald’s mother, who has been his primary caregiver, should benefit from his estate, while other individuals who are closely related by blood, but not involved in Donald’s life, should not benefit from the estate. The dispute here centers on how to determine which “others” may benefit from the estate planning. The court’s decision that Donald’s estate could not deviate from intestacy was an error.

Therefore, the Illinois Appellate Court remanded this case with directions to proceed to an evidentiary hearing consistent with the reasoning of this court. The record does not establish whether an estate plan which deviates from the intestacy is in Donald’s best interest. This is to be determined on remand in the trial court.

Estate of Howell v. Howell, 2015 IL App (1st) 133247 (June 19, 2015).

Kreisman Law Offices has been handling estate planning, probate litigation, commercial litigation and catastrophic injury cases for individuals and families for more than 38 years, in and around Chicago, Cook County and its surrounding areas including, Chicago Ridge, Clarendon Hills, Villa Park, Wood Dale, Deerfield, Northbrook, Chicago (Archer Heights, Back of the Yards, Belmont Gardens, Beverly, Bronzeville, Bucktown, Buena Park, Chinatown, North Park, North Town, Pilsen, Pill Hill, Prairie District, Roscoe Village, South Loop, Wrigleyville), Bedford Park, Bridgeview, Mount Prospect and Prospect Heights, Ill.

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