the relationship between the illinois divorce and …...to divorce, probate, and estate planning and...

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The Relationship between the Illinois Divorce and Probate Act

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Seminar Topic: In this course is an overview of some difficult issues that practitioners

face during the probate and estate process and the intersection of divorce. Those factors are difficult enough then introduce the representation of clients with diminished capacity and the lawyer is faced with the daunting task of maintaining a normal client-lawyer relationship with the client.

The program includes a discussion of proposed judgments with provisions for estate

administration cases, the need to consider beneficiary designations during the divorce and

other family law and probate law issues. Rule 1.14: Client with Diminished Capacity and the

lawyer’s role in maintaining a normal client-lawyer relationship is the underlying theme of

this seminar. A general understanding of the procedure involved in having a guardian of the

person and estate appointed for a disabled adult in Illinois will be discussed.

Probate law, estate planning, and family law are becoming even more specialized with the

newly enacted Illinois Probate Code provisions. Whether you are new to the divorce and

probate practice or a seasoned practitioner, this course helps you to broaden your approach

to divorce, probate, and estate planning and administration considerations with the

perspective of a family law attorney with thirty years’ experience.

This material is intended to be a guide in general. As always, if you have any specific question

regarding the state of the law in any particular jurisdiction, we recommend that you seek

legal guidance relating to your particular fact situation.

The course materials will provide the attendee with the knowledge and tools necessary to

identify the current legal trends with respect to these issues. The course materials are

designed to provide the attendee with current law, impending issues and future trends that

can be applied in practical situations.

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Disclaimer: The views expressed herein are not a legal opinion. Every fact situation is different and the reader is encouraged to seek legal advice for their particular situation.

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Author’s Email Address: [email protected]

Author’s Website:

Author’s Mailing Address:

675 N. North Court, Suite 490

Palatine, IL 60067

Author’s Phone Number:

(847) 705-1300

(847) 750-6659

About The Author Mr. Cohen graduated from DePaul University with a Bachelor of Science and

Commerce degree, awarded with honor, in 1978. Mr. Cohen has been a member of the National Honors Accounting fraternity, Beta Alpha Psi, since 1977. Mr. Cohen became a Certified Public Accountant in 1980.

Mr. Cohen worked as an auditor for the public accounting firm of Altschuler,

Melvoin, and Glasser from 1977 until about June of 1980. Mr. Cohen has been a licensed practicing attorney at law in Illinois since 1983.

For over 29 years, Mr. Cohen has had his own law practice, and has

concentrated his practice in all aspects of family law. Since about 1996, he has been on the approved list of Child’s Representatives in the Circuit Court of Cook County, Illinois. Mr. Cohen has acted as a Guardian ad Litem and as a Child’s Representative in numerous contested custody cases in Cook County, Illinois. Over the years, Mr. Cohen has represented many men and women in all types of family law cases.

Mr. Cohen maintains his law office at 675 N. North Court, Suite 490, Palatine

Illinois 60067. Mr. Cohen can be reached by email, telephone, and fax at [email protected], (847) 705-1300, and (847) 705-6659

mailto:[email protected]

mailto:[email protected]


I. Ethically Rule 1.14

Before the discussion of the first hypothetical case let’s

mention rule 1.14 of the Illinois Rules of Professional Conduct of

2010. Rule 1.14 is relatively new in Illinois, and concerns the

representation of clients with diminished capacity and related

matters.

The last sentence of comment 4 of Rule 1.14 is particularly

germane to the discussion today. The sentence states that if the

lawyer represents the guardian as distinct from the ward, and is

aware that the guardian is acting adversely to the ward's interests,

the lawyer may have an obligation to prevent or rectify the

guardian's misconduct.

II. Case One

Our first hypothetical case will give you a general understanding of the procedure involved in having a guardian of the person and estate appointed for a disabled adult in Illinois.

The facts of our case are simple:

Nancy is 73 years old and a widow.

Nancy was married about 40 years, and never had any children.

Nancy's closest living relatives are her sister, Alice, and her brother, Bob.

Nancy recently had a severe stroke that has left her physically and mentally disabled.


Nancy's doctors have been cooperating with Bob; but have told Bob that he needs to have the Court appoint him as the guardian of Nancy's person and estate.

What steps do you have to take to have the Court appoint

Bob as the guardian of Nancy's person and estate?

Well, the first thing you should do is have Bob obtain a

written Report prepared by a licensed physician concerning

Nancy's physical and mental condition.

Section 5/1 la-9 of the Probate Act, provides that the Court

cannot conduct a hearing on Bob's petition for guardianship unless

the Court has received a report concerning Nancy's physical and

mental condition at least ten days before the hearing on Bob's

petition.

The Report must contain the following information:

A description of the nature and type of the

ward's disability and an assessment of how the

disability impacts on the ability of the ward to make

decisions or to function independently;

An analysis and results of evaluations of the

ward's mental and physical condition and, where

appropriate, educational condition, adaptive behavior

and social skills, which have been performed within 3

months of the date of the filing of the petition for the

appointment of a guardian of the person and estate

for the ward;

An opinion as to whether guardianship is

needed, the type and scope of the guardianship


needed, and the reasons for the guardianship; and

A recommendation as to the most suitable

living arrangement and, where appropriate, a

treatment plan for the ward and the reasons for that

plan.

The statute specifically provides that the Report is not part

of the public record of the case. Accordingly, you should not file

the Report in the case with the Clerk of the Court. Further, you

should not file any medical records concerning the ward in the

case with the Clerk of the Court. You should provide the Report

and any medical record concerning the ward directly to the Court.

In the course materials, you will find a copy of Section

5/11a-9 of the Probate Act, and a Physician's Report form used

in the Circuit Court of Cook County, Illinois.

The next thing you should do is draft a Petition for

Appointment of Guardian for Disabled Person concerning Nancy.

The Petition must include the following information:

The Petitioner's relationship and interest to

Nancy;

Nancy's date of birth, and place of residence;

The name and address of the person that

Nancy is living with, or the facility where

Nancy is living;

The names and addresses of Nancy's

guardian, and agents appointed under the

Illinois Power of Attorney Act, if any;

The names and addresses of Nancy's nearest


relatives;

The approximate value of Nancy's personal

property and real estate;

The estimated amount of Nancy's annual gross

income; and

The proposed guardian’s name, address, age,

occupation, and relationship to Nancy.

In the course materials, you will find a copy of a Petition for

Appointment of Guardian for Disabled Person form used in the

Circuit Court of Cook County, Illinois.

After Bob has reviewed and signed the Petition, you should:

File the Petition with the Clerk of the Court;

Have the Petition set for a hearing before the

Court; and

Provide the Court with a copy of the

Petition and the Medical report concerning

Nancy.

In accordance with section 5/11 a-10 of the Probate Act,

Bob must have a copy of the Petition, a Summons, and a

Notice of Rights of the Respondent personally served on

Nancy at least 14 days before the hearing on the Petition.

In the course materials, you will find a copy of a Summons

for Appointment of Guardian for Disabled Person, and Notice of

Rights of Respondent used in the Circuit Court of Cook County,


Illinois.

The statutes also provides that at least 14 days before the

hearing on the Petition, Bob must give notice by mail or in

person of the date and time of the hearing on the Petition to

following people included in the Petition:

Nancy's guardian, and agents appointed

under the Illinois Power of Attorney Act,

if any;

Nancy's nearest relatives; and

Nancy's proposed guardians.

The purpose of giving notice to these people is to allow

them an opportunity to intervene in the guardianship case. As we

will see later, this may become very important in certain

guardianship cases.

After you have set the Petition for a hearing, the Court will

probably appoint a Guardian ad Litem to represent Nancy in the

Case. Section 5/11a-10 of the Probate Act provides that before

the hearing the Guardian ad Litem:

Will personally observe Nancy;

Inform Nancy of the contents of the Petition

and her rights;

Attempt to determine Nancy's position

concerning the Petition and the proposed

guardian for Nancy's person and estate;

and

File a written report in the case setting

forth the Guardian ad Litem's findings


and recommendations to the Court.

If Nancy and the Guardian ad Litem have no objections to

the Petition, than the Court will probably appoint Bob as the

guardian of the person and estate of Nancy at the hearing on the

Petition.

In accordance with section 5/11 a-3 of the Probate Act, the

Court cannot appoint a guardian of the person and estate for

Nancy, unless the Court determines on clear and convincing

evidence that Nancy is a disabled person, as defined in section

5/11a-2 of the Probate Act.

If Nancy opposes the Petition, then Nancy will be entitled

to be represented by counsel at the hearing; to demand a jury of

six person; to confront and cross-exam all witnesses; and to ask

the Court to close the hearing to the public.

At the hearing, the Court is required to deem

Nancy's testimony as competent; and to allow Nancy to

be examined as an adverse witness.

Finally, you should be aware that Section 5/11 a-8 of the

Probate Act provides that you cannot dismiss or withdraw a

petition for the appointment of a guardian of the person or estate

of an alleged disable adult, without leave of court.

III. The Two Illinois Supreme Court Cases

Before we turn to the facts of our second hypothetical case, let us

discuss whether the guardian of the person and estate of a disabled

adult in Illinois has the authority to defend a divorce action against

the ward; and the authority to institute and prosecute a divorce

action for the ward.


The duties and powers of the guardian of the person of a

disabled person are set forth in detail in section 5/11a-17 of the

Probate Act. The duties and powers of the guardian of the estate

of the disabled person are set forth in detail in section 5/11a-18 of

the Probate Act.

The Illinois Supreme Court in the Drew’s case ruled in 1986

that:

The guardian of the ward's estate had

the duty and authority to defend a

divorce action against the ward;

The guardian of the ward's estate did

not have the authority to institute and

prosecute a divorce action for the

ward; and

The guardian of the ward's person

did not have the authority to institute

and prosecute a divorce action for

the ward.

Sometime after the Court's ruling in the Drew’s case, the

Illinois legislature added section 11a-17 (a-5) to the Probate Act.

That section provides that:

If the ward filed a divorce action before a Court

adjudicated the ward a disabled person, then the

guardian of the ward's person and estate could

continue to prosecute that divorce action for the

ward.

Very recently, the Illinois Supreme Court in the Karbin

case overruled the Court's holding in the Drew’s case that the

guardian of the ward's person did not have the authority to

institute and prosecute a divorce action for the ward. The Court


held that the guardian of the ward's person could institute and

prosecute a divorce action for the ward:

If, after considering the factors in section 11a-17(e) of

the Probate Act concerning the best interests of the

ward, the Court in the guardianship case determines on

the basis of clear and convincing evidence that the

divorce action is in the ward's best interest.

In accordance with the Karbin case, the Court is required

to consider the following five factors in determining whether it is

in the ward's best interest to allow the guardian of the ward's

person to institute and prosecute a divorce action for the ward:

The reason for the divorce action;

The benefit or necessity of the divorce

action;

The possible risks and other

consequences of the divorce

action;

the possible risks, consequences,

and benefits of any alternatives to

the divorce action; and

Any other relevant information that

the ward would have considered

concerning filing a divorce action, if the

ward were not disabled, including the

views of the ward's family and friends.

In the course materials, I have included copies of the Drew’s

and Karbin cases, and section 11 a-17 of the Probate Act.


VI. Case Two

Now, let us discuss the facts of our second hypothetical case:

Helen and Jerry have been married for about five

years.

Helen was married once before, and has no children.

Jerry was married once before, and has no

children.

Jerry's closest living relatives are his younger

brother, Bill, and his older sister, Jane.

Helen is 71 years old and in good health.

Jerry is 73 years old, has had a mild stroke, and

has been suffering from dementia for about a

year.

About six months ago, Helen filed an action for

divorce against Jerry.

Jerry has filed a counter-petition in the divorce

case.

During the divorce case, the Court became aware

that Jerry might not be competent because of his

physical and mental condition.

The Court in the divorce case told counsel for

the parties that it would not proceed with the

divorce case unless a Court in a guardianship


proceeding:

Appointed a guardian of the person and

estate for Jerry; or

Determined that Jerry was not a disabled

adult.

The divorce case is pending and

undetermined.

Helen has filed a petition in the probate

court for the appointment of a guardian of

the person and estate for Jerry.

Jerry is opposing the petition for guardianship;

and

Jerry has refused to provide the Court in the

guardianship case

with a physician's report concerning Jerry's physical

and mental condition

Now, I would like to discuss the following six points concerning

our second hypothetical case.

Is Helen required to include all of the relevant facts concerning

the divorce case in Helen's petition for the appointment of a guardian

for Jerry? I think the answer is yes. I believe that a failure to include

all the relevant information concerning the divorce case in the

guardianship petition would be tantamount to intentionally

misleading the Court. I believe that you should draft an original

petition for the appointment of a guardian of a disabled person setting

forth all the statutory required information; and all of the relevant facts

concerning the pending divorce case.


Should Helen ask the Court in Helen's guardianship petition

to appoint Helen as the guardian of the person and estate of Jerry? I

think the answer is obviously no. A conflict of interest clearly exists

between Jerry and Helen concerning the divorce case that precludes

Helen from acting as the guardian of the person and estate for Jerry.

Helen should ask the Court in Helen's guardianship petition to

appoint Jerry's brother or sister, or some other person that the Court

deems appropriate as the guardian of the person and estate for Jerry.

In our hypothetical case, Jerry has refused to provide the Court

with a physician's report concerning Jerry's physical and mental

condition.

In accordance with the provisions of section 5/11a-9 of the

Probate Act, the Court cannot conduct a hearing on Helen's petition

for guardianship, unless the Court has received a physician's report

containing the information required in section 5/11a-9 concerning

Jerry's physical and mental condition.

It is important to note that Helen's failure to file the physician's

report, along with the guardianship petition, does not deprive the trial

court of personal jurisdiction because the physician's report is a

procedural requirement rather than a jurisdictional requirement.

Can Helen have the Court compel Jerry to provide the

Court with the physician's report required by section 5/1 la-

9 of the Probate Act?

The answer is yes. There are two ways that Helen can

have the Court require Jerry to provide the Court with the

physician's report.


First, Illinois Supreme Court Rule 215 provides, among

other things, that:

In any action in which the

physical or mental condition of a

party is in controversy, the Court

upon proper notice and motion,

may order such party to submit to

an appropriate physical or mental

examination by a licensed

professional; and

The party requesting the

examination shall pay for all of

the fees and costs concerning the examination.

Second, section 5/1 la-9(b) of the Probate Act states that:

If for any reason no report accompanies

the petition, the court shall order

appropriate evaluations performed by a

qualified person or persons and a report

prepared and

filed with the court at least 10 days prior to the

hearing.

The Illinois Appellate Court in the Estate of Malloy case

in 1981 held that the trial court had the authority to order an

alleged disabled adult to involuntarily submit to an examination

by a qualified physician selected by the Court for the purpose of

preparing the physician's report required by section 5/11a-9 of

the Probate Act.

I have included a copy of the Estate of Malloy case in the

course materials. Section 5/11a-9 of the Probate Act and the


Estate of Malloy case are silent concerning who is required

to pay for the cost of the physician's report.

believe that Helen would be better off bringing the motion

to compel Jerry to submit to a physical and mental examination

pursuant to section 5/11a-9 of the Probate Act rather than Rule 215

for two reasons.

First, section 5/11a-9 requires the Court to order the

examination while Rule 215 does not.

Second, since section 5/1 la-9 and the Estate of Malloy

case are silent concerning who is required to pay for the cost of the

examination, I believe Helen could argue that Jerry should be

required to pay for all or part of the cost of the physician's report.

What if the Court grants Helen's petition and appoints a

guardian of the person and estate for Jerry, then can the guardian

of Jerry's person and estate defend Jerry in the divorce case,

without the approval of the Court? The answer is yes. In

accordance with the Drew’s case and the Karbin case, the

guardian of Jerry's estate has the duty and authority to defend

Jerry in the divorce case.

If Helen voluntarily dismisses her divorce action against

Jerry after the Court has appointed a guardian of the person and

estate for Jerry, then can the guardian of Jerry's person and estate

continue to prosecute Jerry's counter-petition for divorce against

Helen, without the approval of the Court? Once again, the

answer is yes. In our hypothetical case, Jerry filed his counter-

petition for divorce against Helen before the Court adjudicated

Jerry a disabled person.

Accordingly, in accordance with section l la-17(a-5) of the Probate

Act, the guardian of Jerry's person and estate can continue to

prosecute Jerry's counter-petition for divorce.


Now, let us slightly change the facts of our second case.

Suppose that we change the facts of our case to provide that:

Helen filed an action for divorce against Jerry;

Jerry did not file a counter-petition in the divorce case; and

Helen voluntarily dismissed her divorce action against Jerry after the Court appointed a guardian of the person and estate for Jerry.

Given these facts, can the guardian of Jerry's person and

estate institute and prosecute a divorce action for Jerry, without

the approval of the Court? The answer is no. The guardian of

Jerry's person and estate does not have the authority under section

11a-17(a-5) of the Probate Act to institute and prosecute a divorce

action for Jerry without the approval of the Court because Jerry

did not file a divorce action against Helen before Jerry was

adjudicated a disabled adult.

In accordance with the Karbin case, the guardian of Jerry's

person and estate will not be able to institute and prosecute a

divorce action for Jerry, unless the Court in the guardianship

case determines, based on clear and convincing evidence, that the

divorce action is in Jerry's best interest.

V. The Third Case

The facts of our third hypothetical case are as follows:


Mary and Jack have been married for about 15 years.

Mary and Jack do not have any children.

Mary and Jack began living separate and apart about six

months ago because of marital difficulties.

Neither party has filed an action for divorce.

Mary is 42 years old.

Mary was recently severely injured in a car accident

caused by a drunk driver.

Mary is now physically and mentally disabled

because of the car accident.

Mary's closest living relatives are her elderly mother,

her older sister, Jill, and her younger sister, Susan.

Susan has filed a petition in the probate court

requesting that the Court appoint Susan as the guardian of

Mary's person and estate.

The Court has appointed a Guardian ad Litem for

Mary in the case.

Susan wants the court to appoint her as the guardian of

Mary's person and estate so that Susan can care for Mary

and file an action for divorce for Mary.

After receiving notice of the Guardianship Petition,

Mary's husband, Jack, filed a counter-petition in the

guardianship case asking the Court to appoint him as the

guardian of Mary's person and estate.

Now let us discuss the following four issues


concerning our third hypothetical case.

First, I think that in addition to the information required by

the statute that Susan should include in her petition for

guardian all of the relevant facts concerning why it is in the best

interests of Mary that Susan be appointed as the guardian of

Mary's person and estate.

Second, can Susan file a petition to have the Court appoint

Susan as the guardian of Mary's person and estate, if Mary is still

married to Jack? The answer is yes.

Section 5/1 la-3 of the Probate Act provides that upon a

filing of a petition by any reputable person, the Court may

adjudge a person to be a disabled person and may appoint a

guardian of the person, or of the estate, or both, for the disabled

person.

Third, what factors should the Court consider in deciding

whether to appoint Mary's sister, or Mary's husband, or some other

person, as the guardian of Mary's estate and person? Section

5/11a-12(d) of the Probate Act provides that the selection of the

guardian shall be in the discretion of the Court, which shall

consider the preference of the disabled person as well as the

qualifications of the proposed guardian. The Court is not required

to accept the preference of the disabled person as to who will be

the guardian of the ward's person and estate.

The cases construing section 5/11 a-12(d) provide that the

paramount concern in the Court's selection of the ward's guardian

is the best interest and wellbeing of the ward; and that the Court

may consider the following, among other factors, in determining the

ward's guardian:

The recommendations of persons with

kinship or family ties to the ward;


The relationship between the ward and

proposed guardian;

The conduct of the ward before being

adjudicated disabled that shows trust or

competence in the proposed guardian;

The prior actions of the proposed

guardian concerning the wellbeing of the

ward;

The spousal relationship between the

ward and the proposed guardian;

The ability of the proposed guardian

to manage the ward's personal estate; and

The extent to which the proposed

guardian may be committed to discharging

responsibilities, which may conflict with his

or her duties as the ward's guardian.

In the course materials, I have included copies of the Illinois

Appellate Court decisions in the Schmidt case that was decided in

1998, and the Johnson Estate case that was decided in 1999. The

two cases contain an excellent discussion of the factors that the

trial court should consider in appointing a guardian of the person

and estate for a disabled adult.

In light of the recent decision in the Karbin case, I believe

that the Court, in deciding whom to appoint as the guardian of the

person and estate of Mary in our hypothetical case, would strongly

consider any marital difficulties and differences between Mary and

her husband; and Mary's sister's desire to file a divorce action for

Mary.


Finally, what impact will the findings and

recommendations of Mary's Guardian ad Litem in our case have

on the Court's decision on who should be appointed as the

guardian of Mary's estate and person? A Guardian ad Litem is

commonly called "the eyes and ears of the Court". The Court will

usually appoint an experienced attorney that the Court knows and

trusts as the Guardians ad Litem in a guardianship case.

Accordingly, the Guardian ad Litem's findings and

recommendations will usually have a strong influence on the

Court's decision.

I am certain that any experienced Illinois divorce lawyers

in our audience have noticed two stark similarities between how

the Court will decide who will be the guardian of the ward under

the Illinois Probate Act, and which parent will be awarded the sole

custody of the minor children under the Illinois Divorce Act.

First, Illinois courts are required to decide the issue of the

custody of the minor children in divorce cases based on the best

interests of the children, after considering all relevant factors,

including ten specific factors in the statute.

Second, Illinois courts frequently appoint a Child's

Representative, or a Guardian ad Litem to represent the minor

children in contested custody cases.

The Court in our third hypothetical case may have to conduct

three separate hearing in the case.

If Mary opposes the Petition for guardianship, then the

Court will have to conduct a hearing to determine on clear and

convincing evidence whether Mary is a disabled person.

If the Court finds that Mary is a disabled person, then the

Court will have to decide whether it is in Mary's best interests to

appoint Mary's sister, or Mary's husband, or someone else, as the

guardian of Mary's estate and person.


Finally, if the Court appoints Mary's sister as the guardian

of Mary's estate and person, then in accordance with the Karbin

case, the Court will have decide on clear and convincing evidence

whether it is in Mary's best interests to allow the guardian of

Mary's estate and person to file a divorce action for Mary.

VI. The Fourth Case

The facts of our fourth hypothetical case are as follows:

Joel and Sandy have been married for 40 years.

Joel is 65 years old and in good health.

Sandy is 70 years old and has been

suffering from

severe dementia for about 3 years.

Sandy has been living in a nursing

home for about

2 years.

The Court appointed Joel the

guardian of Sandy's person and

estate about 2 years ago.

Joel wants to divorce Sandy and marry

Barbara.

All of Sandy's other relatives have

repeatedly told Joel that they will

not agree to act as the successor


guardian of Sandy's person and

estate.

I want to discuss four issues concerning our fourth case.

First, can you ethically represent Joel in a divorce case

against Sandy, while Joel is acting as the guardian of Sandy's

person and estate? I think the answer is no. As you will recall,

comment four of rule 1.14 of the Illinois Rules of Professional

Conduct provides that if the lawyer represents the guardian and

is aware that the guardian is acting adverse to the ward's interest,

the lawyer may have an obligation to prevent or rectify the

guardian's misconduct. I think you have an obligation to tell Joel

that he has to resign as the guardian of Sandy's person and

estate, before you will represent Joel in a divorce case against

Sandy.

Second, can Joel resign as the as the guardian of Sandy's

person and estate, without the permission of the Court? The

answer is no. Section 5/23-1 of the Probate act provides that the

guardian of the Ward's estate and person must file a petition with

the Court requesting permission to resign.

Third, is the Court required to allow Joel to resign as the

guardian of Sandy's person and estate? The answer is No. Section

5/23-1 of the Probate act provides that the Court may permit the

guardian of the Ward's estate and person to resign.

Even though all of Sandy's other relatives have refused act as

the successor guardian of Sandy's person and estate, I believe that

the Court would allow Joel to resign as the guardian of Sandy's

person and estate, as a practical matter.

Finally, if the Court allows Joel to resign as the guardian of

Sandy's person and estate, and all of Sandy's other relatives


refuse to act as the successor guardians for Sandy, then whom

can the Court appoint as the successor guardians for Sandy?

Section 5/11a-5(b) of the Probate act provides that the Court

may appoint any public agency or not-for-profit corporation that

the Court finds capable of providing an active and suitable

program of guardianship for the ward as the guardian of the ward's

person and estate.

VII. The Fifth Case

The facts of our last hypothetical case are as follows:

Scott and Jill have been married for 45

years.

Jill has filed a divorce action against

Scott.

Scott's brother, Bill, is the

guardian of Scott's person and

estate.

Bill as the guardian of Scott's

person and estate is defending Scott in the divorce case, in accordance with the Dress case and Karbin Case.

Jill and Bill, as the guardian of Scott's person and estate, have agreed on the terms of a Marital Settlement Agreement settling all the issues in the divorce case.


The Marital Settlement Agreement

provides that neither party will receive spousal support, and that

the parties will equally divide their marital property.

Should Bill insist that the terms of the Marital Settlement

Agreement be subject to the approval of the Court in the

Guardianship Case? The answer is yes.

The provision of section 5/12-2 of the Probate Act, provide

that before the guardian of the Ward's person and estate begin

their duties, they must post a bond in an amount approved by the

Court, binding them faithfully to discharge their duties under the

law.

The actions of the guardian of the Ward's person and

estate are subject to the supervision and approval of the Court.

Accordingly, the guardian of the Ward's person and estate are

usually required to periodically report to the Court and obtain

the Court's approval for their actions.

The Court will usually require the guardian of the Ward's

person to provide the Court with an annual written report

concerning the Ward's health and living arrangements. The Court will usually require the guardian of the Ward's estate

to provide the Court:

With an Inventory of all the Ward’s

asset, within 60 days after the Court

has appointed the guardian; and,

With an annual Accounting of the

assets, income, and expenses of the

Ward.


If the Court does not approve the guardian's annual

Accounting of his administration of the Ward's estate, then Guardian ill

be financially liable to the Ward's estate under the terms of the

Guardian's bond.

Bill will have to include the details of the Marital Settlement

Agreement in his annual accounting to the Court, as the Guardian of

Scott's estate. If Bill proceeds with the Marital Settlement Agreement,

without the approval of the Court in the Guardianship Case, and the

Court objects to the terms of the Marital Settlement Agreement, then

Bill could be financially liable to Scott's estate.

Accordingly, I strongly recommend that:

Bill insist that the terms of the

Marital Settlement Agreement be

subject to the approval of the Court

in the Guardianship Case; and

Bill have the Marital Settlement

Agreement approved by the Court

in the Guardianship Case, before

the Court in the divorce case

enters a Judgment for Dissolution

of Marriage.

VII. Conclusion

Although the overall divorce rate has been declining during the

past few years, it has been increasing for older and elderly married

couples. As our elderly population continues to grow and live

longer, I believe you will see many cases in the future involving

guardianship and divorce in the Illinois courts.

the relationship between the illinois divorce and …...to divorce, probate, and estate planning and...

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