Illinois Appellate Court Reverses Decision Regarding Attorney-Client Relationship in Wrongful-Death Action; Estate of Powell v. Wunsch

Leona and Perry Smith were the co-guardians of the person, but not of the estate, of a profoundly disabled son, Perry Powell. A medical malpractice case was first initiated by Leona Smith related to the death of her husband, Perry Smith, which ended because of alleged legal malpractice. The issue in this appellate court case was whether an attorney-client relationship with Perry Powell, the disabled son of the decedent, was available. 

The legal malpractice case was brought in the name of a public guardian and was later dismissed. At the trial court level, the judge concluded that the lawyers hired by Leona owed no duty to Perry Powell, the disabled son of the decedent.

In reversing, the appellate court said, “An attorney litigates a wrongful-death action for the exclusive benefit of the next-of-kin and owes that party a duty even though the next-of-kin did not execute a retainer agreement with the attorneys.”

Perry Smith, the father, died from surgical complications in 1999 and was survived by his wife and daughter as well as Perry Powell, the disabled person. 

The special administrator of Perry Smith’s estate, his wife, Leona filed the wrongful-death complaint. The case settled. The disabled person’s share of the proceeds was $118,000.The lawyers who represented the estate of Perry Smith knew that the disabled person, Perry Powell, was not competent. The settlement proceeds portion for Perry Powell was to go to the probate court under Section 2.1 of the Wrongful Death Act. But the money was spent in an account that mother Leona Smith controlled. 

The appellate court, in referencing Section 2 of the Wrongful Death Act, restated that every lawsuit shall be brought by and in the names of the personal representatives of the deceased persons except as otherwise provided. The amount recovered shall be for the exclusive benefit of the surviving spouse and next-of-kin of such deceased person. 

Because Powell was next-of-kin, the Wrongful Death Act was intended to compensate him in addition to the decedent’s wife, Leona and daughter.

It is acknowledged that defendant attorneys did not directly enter into an attorney-client relationship with the disabled son, Perry Powell. It was not necessary because he is next-of-kin. The Wrongful Death Act specifically prohibits the bringing of separate causes of action against defendants in a wrongful-death action because only the decedent’s personal representative can bring such an action. 

In this case, based on the reasoning and holdings in other appellate cases, the act’s expressed language directs an attorney to litigate a wrongful-death action for the exclusive benefit of the next-of-kin and owes those parties a duty even though the next-of-kin did not sign a retainer agreement with the lawyers.  The proceeds from a wrongful-death action are not assets of the decedent’s estate because that asset is distributed pursuant to the Wrongful Death Act and is not a part of the probate estate of the decedent. 

The court was guided by the Illinois Supreme Court’s decision in Carter v. SSC Odin, 2012 IL 113204.  The Carter case stands for the proposition that the personal representative for the decedent is “merely a nominal party to this action, effectively filing suit as a statutory trustee on behalf of the surviving spouse and next-of-kin, who are the true parties in interest.”  The appellate court reversed the dismissal of the legal malpractice case with instructions to proceed accordingly.

Estate of Powell v. Wunsch, 2013 IL App. (1st) 121854 (March 29, 2013).

Kreisman Law Offices has been handling wrongful death actions, automobile accidents, truck accidents, birth injuries, nursing home abuse cases and medical malpractice matters for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Riverdale, Crestwood, Orland Park, New Lenox, Bensenville, Buffalo Grove, Kenilworth, Chicago (Pulaski Park), Chicago (Rosehill), Itasca, Hillside, LaGrange and Brookfield, Ill.

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