Hayden's Estate, Matter of

• Decision Date: 25 March 1982
• Docket Number: No. 17183,17183
• Citation: 60 Ill.Dec. 923,433 N.E.2d 1161,105 Ill.App.3d 60
• Parties: , 60 Ill.Dec. 923 In the Matter of the ESTATE OF Blanche HAYDEN, Incompetent. Richard E. GEPPERT, Petitioner-Appellant, v. Gertrude EDDINGTON, as Conservator of the Estate of Blanche Hayden, and Sylvia Williams, as Conservator to the person of Blanche Hayden, Respondents- Appellees.
• Court: United States Appellate Court of Illinois

Page 1161

433 N.E.2d 1161

105 Ill.App.3d 60, 60 Ill.Dec. 923

In the Matter of the ESTATE OF Blanche HAYDEN, Incompetent.

Richard E. GEPPERT, Petitioner-Appellant, v. Gertrude EDDINGTON, as Conservator of the Estate of Blanche Hayden, and Sylvia Williams, as Conservator to the person of Blanche

Hayden, Respondents- Appellees.

No. 17183.

Appellate Court of Illinois, Fourth District.

March 25, 1982.

Rehearing Denied April 27, 1982.

Charles R. Douglas, Granite City, for petitioner-appellant.

John P. Madden, Gillespie, for respondents-appellees.

Phelps, Carmody & Kasten, Carlinville, for guardian ad litem; Carl E. Kasten, Brent A. Cain, Carlinville, of counsel.

MILLS, Justice:

Conservatorship-of person and estate.

Conservatorship terminated.

Who now has standing to question the actions of the conservators?

No one-other than the now-competent former ward.

In 1976, Blanche Hayden was declared an incompetent; her sister, Gertrude Eddington, was appointed conservator of her estate, and her daughter, Sylvia Williams, was appointed conservator of her person. On July 14, 1980, Richard Geppert-Blanche's grandson-filed a petition seeking, inter alia, revocation of the conservatorship. Gertrude and Sylvia filed a general denial of the matters alleged in the petition, and the matter was set for hearing on September 18, 1980.

At that hearing, the conservators' attorney stated that both Gertrude and Sylvia agreed that a conservatorship was no longer necessary and that Blanche was competent. Blanche's guardian ad litem stated that he, too, had reached the conclusion that Blanche was competent.

Since all parties agreed that the conservatorship should be terminated, the court so ordered and directed that an accounting be filed within 45 days. Geppert's attorney reminded the court that the petition also alleged various acts of malfeasance by the conservators and asked that he be allowed to pursue discovery. The court stated that any discovery that it would allow should certainly not occur until after the conservators' final accountings were filed.

Subsequently, Sylvia filed her final report as conservator of the person, and Gertrude filed a "preliminary report" as conservator of the estate. Thereafter, discovery depositions were taken of both Sylvia and Gertrude. On April 8, 1981, a hearing was held in this matter, and Judge Howard Lee White immediately demanded to know what interest Geppert had in Blanche's estate that would allow him to continue as a party. In the discussion that ensued, the court learned that Blanche's estate owed Geppert $992.10 as a result of prior litigation. The court ordered this sum to be paid within five days. Geppert's attorney argued that Geppert should be allowed attorney's fees for proceedings that occurred before the time when Gertrude and Sylvia conceded that a conservatorship was no longer needed. He testified that $1,800 was owed him for services during that time.

Judge White ruled that Geppert had no interest in the estate except as a creditor. As such, he could have filed a claim for $992.10 and along with that claim could have alerted the court that Blanche was competent. Had he followed that procedure, concluded the court, he would have been entitled to approximately $300 in attorney's fees. Thus, the court ordered the estate to pay Geppert the $992.10 plus $300 attorney's fees but went on to find "that Mr. Geppert has no further interest in this proceeding and the court on its own motion restrains him from filing any more proceedings in this case." Judge White assured Geppert's attorney that this ruling also precluded his filing a citation petition.

I

Geppert initially argues that the court erred in not holding an evidentiary hearing on his petition on September 18, 1980. As authority he cites section 11a-21(a) of the Probate Act of 1975 (Ill.Rev.Stat.1979, ch. 1101/2, par. 11a-21(a)):

"The court shall conduct a hearing on a petition filed under Section 11a-20 (dealing with, inter alia, petitions to revoke letters of guardianship * * *)."

Geppert, however, has waived any error the court may have committed. His attorney not only failed to ask for a hearing on that date; he also specifically agreed to the court's revocation of the conservatorship without holding a hearing as to Blanche's present condition:

"THE COURT: Gentlemen, I have before me, again, a petition to revoke the letters of conservatorship, setting up the reasons why they should be revoked and the guardian ad litem agrees it should be allowed and the conservator agrees it should be allowed.

Petition is allowed and the conservator will account to this court within 45 days for their actions.

(Conservators' attorney): Fine.

(Geppert's attorney): Your Honor, that's fine * * *."

Under these circumstances, it can hardly be said that Geppert has preserved this issue for appeal. Furthermore, where all the parties obviously agreed that Blanche was competent and that the conservatorship was no longer necessary, it would not serve any useful purpose for the court to go through the motions of holding a hearing. Also, section 11a-21(a) does not entitle Geppert to a hearing as to the allegations of malfeasance contained in his petition. That section calls for a hearing only upon a petition filed under section 11a-20, which does not provide for petitions alleging impropriety by guardians.

II

Geppert next attacks the trial court's conclusion that following the revocation of the conservatorship on September 18, 1980, he no longer had any interest in the litigation. It should initially be observed that Geppert clearly had standing to file his revocation petition:

"Upon the filing of a petition by or on behalf of a disabled person or on its own motion, the court may terminate the adjudication of disability of the ward, revoke the letters of guardianship of the estate or person, or both, or modify the duties of the guardian * * *."

(Emphasis ours.) (Ill.Rev.Stat.1979, ch. 1101/2, par. 11a-20(a).)

But we conclude that following the revocation of the conservatorship, Geppert had no further interest in the estate, except as a creditor for the $992.10.

Once Blanche was declared competent, it was her decision alone whether to proceed against Gertrude and Sylvia for any alleged improprieties committed while they were in office. After September 18, Blanche was, as a matter of law, capable of representing her own interests; Geppert had no basis for attempting to represent those interests. It was up to Blanche, therefore, based upon her personal feelings and convictions, to decide whether Gertrude and Sylvia should be required to answer for any alleged improper conduct.

Although we are unable to find any Illinois case which involves the precise question as to whether a person in Geppert's position retains party status following an adjudication of competency, we find that not only common sense but also various statutory and case law authority point inexorably to the conclusion that Geppert lost standing to represent Blanche's interests once the conservatorship was revoked. Section 24-11 of the Probate Act of 1975 (Ill.Rev.Stat.1979, ch. 1101/2, par. 24-11) provides that within 30 days after the termination of his office, the representative of a ward's estate must file a verified account of his administration of the estate. Notice of the hearing on this final account must be given to the ward (if he is living) and to any other person to whom the court directs. This provision suggests that a former conservator is accountable only to his former ward and the court, and not to persons who themselves seek to intervene in the proceedings and protect the former ward's interests.

Also relevant is section 24-18 of the Probate Act of 1975 (Ill.Rev.Stat.1979, ch. 1101/2, par. 24-18):

"A representative and the surety on his bond are liable to a successor representative, to a co-representative or to any person aggrieved thereby for any mismanagement of the estate committed to his care. The successor representative, the co-representative or the person so aggrieved may institute and maintain an action against the representative and the surety on his bond for all money and property which have come into his possession and are withheld or may have been wasted, embezzled or misapplied and no satisfaction made therefor."

This provision is not necessarily exhaustive in its list of persons to whom a former representative is liable; indeed, it does not state that a former representative is liable to his former ward although that is obviously the law. In re Estate of Ekiss (1963), 40 Ill.App.2d 1, 188 N.E.2d 348; Bennett v. Bennett (1960), 27 Ill.App.2d 24, 169 N.E.2d 172.

However, it would seem that the legislature, by using the expression "any person aggrieved," intended to put some limitation upon who could require a former representative to answer for his actions. Geppert is clearly not a "person aggrieved" by the mismanagement of this estate. The record indicates that he has been paid the $992.10 owed him; his relationship with the estate as a possible future heir of Blanche is too attenuated to put him within the scope of a "person aggrieved" by the conservators' actions.

Hoff v. Meirink (1957), 12 Ill.2d 108, 145 N.E.2d 58, also lends some support for our conclusion that Geppert lacked standing following revocation of the conservatorship. Meirink was adjudged mentally incompetent, and Hoff was appointed as her conservator. Hoff obtained court permission to sell Meirink's mineral rights, and the sale was held. The following sequence of events then occurred:

(1) The court found Meirink competent to manage her property.

(2) The court approved the sale.

(3) The court revoked the letters of conservatorship.

The supreme court concluded that Meirink should have been allowed to vacate the court's order approving the sale. The court said that following the restoration to competency, the probate court no longer could exercise its usual...