Ervin v. Gooch (In re Guardianship of Spinnie)

• Citation: 408 Ill.Dec. 319,65 N.E.3d 541
• Decision Date: 22 November 2016
• Docket Number: No. 5–15–0564.,5–15–0564.
• Parties: In re GUARDIANSHIP OF Agnes SPINNIE, a Disabled Adult (Richard Ervin, Guardian of the Person and Estate of Agnes Spinnie, Petitioner–Appellee, v. Patricia A. Gooch, Respondent–Appellant).
• Court: United States Appellate Court of Illinois

65 N.E.3d 541

408 Ill.Dec. 319

In re GUARDIANSHIP OF Agnes SPINNIE, a Disabled Adult (Richard Ervin, Guardian of the Person and Estate of Agnes Spinnie, Petitioner–Appellee, v. Patricia A. Gooch, Respondent–Appellant).

No. 5–15–0564.

Appellate Court of Illinois, Fifth District.

Rule 23 Filed Oct. 25, 2016.

Motion to Publish Granted Nov. 22, 2016.

Opinion Filed Nov. 22, 2016.

Edward J. Kionka, Carbondale, IL, Curtis L. Blood, Collinsville, IL, for Appellant.

Jayni A. Desai, Alana I. Mejias, Charles W. Courtney, Jr., Courtney, Clark & Mejias, P.C., Belleville, IL, for Appellee.

OPINION

Presiding Justice SCHWARM delivered the judgment of the court, with opinion.

¶ 1 The petitioner, Richard Ervin, the guardian of the person and estate of Agnes Spinnie, brought this action against the respondent, Patricia A. Gooch, among others, to recover assets that the petitioner alleged were improperly acquired from Agnes. After hearing evidence, the circuit court entered judgment in favor of the petitioner and against the respondent in the amount of $31,733.19. For the following reasons, we reverse the circuit court's judgment.

¶ 2 BACKGROUND

¶ 3 On July 5, 2007, Agnes, who was born on January 13, 1922, executed an Illinois Statutory Short Form Power of Attorney for Property, appointing the respondent as attorney-in-fact. Agnes also executed a power of attorney for healthcare, naming the respondent as attorney-in-fact. At about the same time, Agnes received a substantial settlement in excess of $400,000, as compensation for her deceased husband's work-related injury. Thereafter, Agnes gifted funds to her daughters, the respondent and Helen Odell; her grandchildren, Shelley Brown, Lisa Brown, and Barbara Davis; and her great-grandchild, Morgan Brown, among others.

¶ 4 On May 29, 2013, the petitioner filed a petition for adjudication of disability and appointment of guardian for Agnes, along with a petition to terminate the respondent's agency under the power of attorney documents. On the same date, the court appointed a guardian ad litem for Agnes. On June 11, 2013, the guardian ad litem filed his report, revealing that his attempts to meet with Agnes "were frustrated by [her] anger towards [her son, the petitioner,] for filing the" petition. Agnes informed the guardian that she had three children and that the respondent was the oldest. Agnes indicated to the guardian ad litem that guardianship was unnecessary and that she did not want the petitioner appointed as guardian. Agnes denied that she was financially exploited. On September 24, 2013, the circuit court appointed the petitioner as temporary guardian of Agnes's person and estate. On this date, the circuit court also revoked the respondent's agency pursuant to the power of attorney for property and the power of attorney for healthcare.

¶ 5 After an examination performed on October 20, 2013, Daniel J. Cuneo, Ph.D., submitted a report, which was later admitted into evidence, noting that Agnes was 91 years old at the time of the examination and that she was living at Charles Gardens, an independent living center in O'Fallon, Illinois. Dr. Cuneo opined that Agnes's emotional, mental, and psychological functions were impaired and that she required a guardian over her person and estate. Accordingly, on November 21, 2013, the circuit court found that Agnes was a disabled adult without capacity and appointed permanent guardianship of Agnes's person and estate to the petitioner.

¶ 6 On January 14, 2014, the petitioner filed an inventory of Agnes's real and personal property, valuing her mobile home at $21,000; her checking account at $1,600; and her monthly income at $2,002.50. Thereafter, on February 4, 2014, and also on October 10, 2014, the petitioner filed petitions for citation against the respondent, Lisa, Shelley, and Barbara to produce estate assets or information to explain why approximately $358,939 of Agnes's funds or property had not been produced. On February 25, 2015, citing the five-year limitations found in section 13–205 of the Code of Civil Procedure (735 ILCS 5/13–205 (West 2014) ), the respondent filed a motion to strike and to limit the petitioner's recovery to assets transferred less than five years prior to the petition for recovery citation.

¶ 7 After notification that the petitioner had settled with Lisa and Barbara, the circuit court heard evidence in February 2015. The respondent testified that in 2007, she "did everything" for Agnes by taking her to the doctor, to church, and to the store. The respondent testified that she visited Agnes two or three times a week and called her almost every day. The respondent acknowledged that Agnes spent the $440,000 settlement she received in 2007 in a short period of time. The respondent testified that Agnes gifted funds to Lisa, Shelley, and Helen and that Agnes went on a cruise, bought hearing aids, prepaid for her funeral, bought appliances, and paid for her mobile home.

¶ 8 The respondent testified that she received approximately $15,500 to $20,000 from Agnes. The respondent testified specifically that when Agnes received the first settlement payment, Agnes gave the respondent $2,500 to repay a loan. The respondent testified that in 2008, Agnes also reimbursed the respondent for paying Shelley's rent and for purchasing Agnes's groceries, thereby paying her $5,700 and $4,000, which were amounts due on the respondent's credit cards. The respondent testified that prior to 2010, Agnes gave her an additional $1,000 and then $500 to thank her for her help. The respondent testified that she had paid almost $1,800 for an air conditioner for Agnes, and Agnes repaid her through monthly amounts of $78, $20, and $50. The respondent testified that in 2010, she borrowed $5,000 from Agnes, but on May 10, 2010, she began repaying the loan with cash and had repaid over $1,000. The respondent testified that Agnes had not indicated that she expected repayment.

¶ 9 The respondent testified that Agnes told her she would "do what she want [ed] with" her money. The respondent testified that Agnes was "in her right mind" until 2013, when the respondent began managing Agnes's finances. The respondent testified that she "kept the checkbook" from the middle of 2013 until 2014. The respondent testified, however, that she did not sign any check from Agnes to herself. The respondent testified that she "never signed [Agnes's] name to anything."

¶ 10 Shelley, Helen's daughter, testified that Agnes periodically paid her rent, bought three cars for her, and provided $6,000 cash to purchase a trailer. Shelley testified that Agnes provided funds to her throughout her life, both before and after Agnes received the substantial settlement. Shelley testified that Agnes also bought a vehicle for Shelley's boyfriend. Shelley testified that she received approximately $20,000 from Agnes.

¶ 11 Lisa, Helen's daughter, testified that she received approximately $13,000 from Agnes. Lisa testified that Agnes paid a $1,500 deposit to purchase her home and provided funds for her car payment. Lisa testified that Agnes paid Helen's loan for her home and bought Shelley's friend, Tim McClade, a pickup truck for $1,500, in addition to giving him additional funds. Lisa testified that Agnes often provided cash or a debit card to her, to Shelley, and to other family members. Lisa testified that Agnes also donated to many solicitors telephoning or mailing in requests for donations. Lisa testified that Agnes often said that she would do what she wants with her money. Lisa testified that from 2007 through 2012, she often took Agnes to the bank where Agnes would write a check to cash. Lisa testified that in 2012, Agnes began having episodes where she hallucinated that there were 19th century men and women outside of her home.

¶ 12 Dr. James J. Needles, who had acted as Agnes's physician since February 23, 1993, testified that on June 3, 2013, he examined Agnes after she had been hospitalized for an evaluation for dementia

. Dr. Needles testified that he diagnosed her with early dementia of Alzheimer's type.

¶ 13 The petitioner testified that Agnes received income—including pension payments, social security, and black lung

compensation—to pay her monthly expenses. The petitioner identified various checks wherein he alleged that Agnes's signature had been falsified. The petitioner testified that the falsified checks amounted to $85,000. The petitioner also testified that, pursuant to the respondent's family account records, the following amounts were added to the respondent's checking accounts: $17,000 in 2007, $17,263 in 2008, $10,000 in 2009, $11,000 in 2010, $10,000 in 2011, $13,000 in 2012, and $8,000 in 2013.

¶ 14 On September 9, 2015, the circuit court entered its order. In its order, the circuit court found that Agnes wrote many checks to cash and gifted the cash to relatives. The circuit court found, however, that the petitioner had not met his burden to show that additional funds represented by checks payable to cash were transferred to the respondent. Instead, the circuit court found that Agnes gifted these funds to her other relatives who "also took advantage of her." The circuit court found that Agnes consistently told her family members that she would do what she wanted with her money. The circuit court found that Agnes had transferred $31,733.19 to the respondent. Considering that a presumption of fraud arose pursuant to the execution of the power of attorney for property document, the circuit court determined that the respondent's testimony that the transactions were gifts or loans was self-serving and did not overcome the presumption of fraud. The circuit court entered judgment in the petitioner's favor in the amount of $31,733.19. Considering no presumption of fraud with regard to Shelley, the circuit court found the evidence insufficient to support judgment against her.

¶ 15 On September 28, 2015, the respondent filed a motion to reconsider, noting, among other things, that ...