In re Burdge
| Decision Date | 16 November 2018 |
| Docket Number | NO. 5-17-0317,5-17-0317 |
| Citation | 2018 IL App (5th) 170317,426 Ill.Dec. 241,115 N.E.3d 1163 |
| Parties | IN RE GUARDIANSHIP OF Lillian BURDGE, a Disabled Adult (Michelle Anette Hagarty, Petitioner-Appellee and Cross-Appellant; Adelbert Burdge III, Counterpetitioner-Appellant and Cross-Appellee; Tena Payne, Appellee; and Toya Egbert, Cross-Appellee). |
| Court | United States Appellate Court of Illinois |
Jason P. Kleindorfer, 115 West Washington Street, P.O. Box 546, Belleville, IL 62222, Attorney for Appellant
Sandra J. Tatoian, Mathis, Marifian & Richter, Ltd., Mark Twain Plaza 1, 101 West Vandalia Street, Suite 100, P.O. Box 247, Edwardsville, IL 62025, Attorney for Appellees
¶ 1 The petitioner, Adelbert Burdge III (Butch), appeals the circuit court's order awarding the petitioners, Michelle Anette Hagarty (Anette) and Tena Payne, guardianship over the person of their mother, Lillian Burdge. Anette cross-appeals the circuit court's order awarding Butch guardianship over Lillian's estate. Anette also appeals the circuit court's order awarding Lillian's daughter, Toya Egbert, visitation with Lillian. For the following reasons, we affirm those portions of the circuit court's order awarding Anette and Tena guardianship over Lillian's person and awarding Butch guardianship over Lillian's estate, but we reverse that portion of the circuit court's order awarding visitation for Toya.
¶ 3 Lillian was born on December 1, 1931. Lillian had worked as a nurse before she retired in 1996, and she and her husband had thereafter traveled by motor home until they settled in Texas, where her husband died in 2001. At the time of the hearings, Lillian was living in Illinois, was 85 years old, and suffered from moderate to severe dementia. Lillian has eight children: Anette, Tena, Joni Petterson, Toya, Butch, Michael Andrew Burdge (Andy), Terri Parkman, and Thomas R. Burdge (Robby).
¶ 4 On February 26, 2016, Anette filed a petition for adjudication of disability and for appointment of a guardian of Lillian's estate or person or both. 755 ILCS 5/11a-8 (West 2016). On March 22, 2016, Butch filed a motion to dismiss, or in the alternative, a counterpetition for guardianship. Butch attached an "Illinois Statutory Durable Power of Attorney for Health Care," dated February 27, 2009, wherein Lillian named Butch as her attorney-in-fact to "make any and all decisions * * * concerning [her] personal care, medical treatment, hospitalization[,] and health care and to require, withhold[,] or withdraw any type of medical treatment, or procedure, even though * * * death [may] ensue." Lillian named Terri as a successor attorney-in-fact. Lillian nominated the agent acting under the power of attorney as the guardian of her person, if one were to be appointed.
¶ 5 On February 10, 2017, the guardian ad litem (GAL) filed a preliminary report, noting that she had been appointed GAL on March 1, 2016. The GAL reported that Lillian had resided with Toya in Millstadt, Illinois, for eight years. The GAL reported that Lillian received approximately $3750 a month in veterans benefits, Social Security benefits, and other income. The GAL noted that a physician's report by Mary C. Agne, M.D., revealed that Lillian required assistance with her self-care and management of her finances and that she was unable to make health care or financial decisions due to her impaired cognition related to moderate to severe mixed dementia
.
¶ 6 The GAL reported that she had met with Lillian at Toya's home on March 16, 2016, and Lillian appeared clean and content. The GAL reported that Lillian's bed was in the dining room of the home, an area open to the kitchen and family room, and that Toya's home was cluttered and in need of a thorough cleaning. The GAL subsequently visited Toya's home on January 4, 2017. During this second visit, Lillian's bed was located in the family room, and her recliner and the television were located in the dining room area. The GAL noted that the home's clutter and lack of cleanliness were similar to the home's condition during the GAL's first visit. The GAL reported that some of Lillian's children (Anette, Tena, Joni, and Robby) were concerned that Toya was financially dependent on Lillian's income, that Toya abused prescription medication, and that Toya was either overmedicating Lillian or that Toya was taking Lillian's prescribed medications. The GAL preliminarily recommended that Anette be appointed as guardian of Lillian's person and Butch be appointed as guardian of Lillian's estate. The GAL further recommended that Lillian move to an assisted living facility.
¶ 7 On February 14, 2017, February 21, 2017, March 9, 2017, and March 21, 2017, the circuit court held hearings on the petitions filed by Anette and Butch. Attorney Robert A. Hayes testified that he had been Lillian's attorney in 2009, when she scheduled an appointment with him to prepare a health care power of attorney. Hayes testified that Lillian was lucid and competent and was very adamant that she wanted Butch to be her agent with power of attorney for health care. Hayes testified that he then prepared the aforementioned power of attorney, which Lillian executed on February 27, 2009.
¶ 8 Hayes testified that Toya later scheduled appointments for Lillian in 2014 and 2015, and Toya accompanied Lillian to the appointments. Hayes testified that he was contacted to respond to opposing counsel letters regarding the inability of Lillian's other daughters to visit with her. Hayes testified that Lillian expressed to him that she would make decisions as to whom she would visit, when she would visit them, and where she would visit them and that she did not appreciate her daughters' interference with her liberties. Hayes testified that at that time, he believed that Lillian was in full control of her mental facilities.
¶ 9 Robby testified that he was the youngest of Lillian's eight children, and he resided in Victoria, Texas. Robby testified that in 2001, he and his wife paid a down payment for a Texas home for his parents and that his father died shortly thereafter. Robby testified that, at that time, he shared a joint account with Lillian, where he deposited funds for her benefit, but in 2004, he noticed that funds were missing from the account. Robby questioned Terri and Toya, neither of whom were employed and both of whom he suspected, based on their appearance and conduct, were using illicit drugs, and Robby ultimately closed the account. Robby nevertheless continued to fund Lillian's expenses until Lillian moved from Texas to Illinois in 2009.
¶ 10 Robby testified that in January 2009, he discovered Lillian's Texas home torn apart and destroyed, with graffiti on the walls, and Lillian was gone. Robby testified that he knew that Lillian had planned to visit Illinois at some point in order to receive medical treatment, but he was unaware that she was leaving that day. Robby later learned that Butch had rented a U-Haul, and Terri and Toya had moved Lillian to Illinois.
¶ 11 Robby testified that since Lillian's move to Illinois, his contact with Lillian had been limited. Robby testified that between 2009 and 2015, he had visited with Lillian once, when he flew his family to Illinois to visit Lillian in the hospital. Robby testified that although he did not get along with Butch, he believed that Butch was capable of handling Lillian's finances. Robby testified that Butch had the ability since 2009 to ensure that Lillian had access to all of her children, but he had failed to allow that communication. Robby testified that he had not visited Toya's home since 1998. Robby testified that he believed Toya used narcotics on a regular basis and smoked marijuana. Robby testified that Lillian had told him that she was concerned that Terri or Toya was taking her prescription medication because some of her pills were missing. Robby testified that he believed that Anette should be appointed guardian because she was a loving mother and wife, she was educated in the medical field, and she would allow all of Lillian's children to visit with her.
¶ 12 Joni testified that she was a registered nurse and an administrative supervisor at a hospital in Orlando, Florida. Joni testified that when her parents were traveling in a motor home during retirement, Lillian maintained primary care physicians and an orthopedic physician in Orlando, and she consulted Joni for medical recommendations. Joni testified that in 2006, Lillian stayed with her for two weeks, and Lillian told Joni that she suspected that Toya and Terri were taking her medication. Joni testified that during this visit, Terri and Toya telephoned four or five times a day, and Lillian told Joni that she wished they would stop calling her.
¶ 13 Joni testified that she further witnessed Lillian writing checks, including a $500 one, to Terri. Joni testified that Lillian had stated that she wished Toya and Terri would quit asking her for so much money. Joni testified that Lillian telephoned her in 2008, and Lillian was crying and saying, "This isn't what I want; I miss my son [Robby]." Joni testified that although Lillian had not yet moved to Illinois at the time of the phone call, Toya had been in and out of Lillian's home frequently. Joni testified that Terri and Terri's children were also there often. Joni testified that Lillian had told her she was tired of them being in her home so much.
¶ 14 Joni testified that in her professional opinion, the combination and quantity of methadone
, hydrocodone, amphetamines, Valium, and Aricept, as prescribed to Lillian, was concerning. Joni testified that she had worked with patients suffering from sickle cell, chronic back pain, and cancer and had never seen patients treated with that combination of drugs before.
¶ 15 Joni testified that since Lillian had moved to Illinois, Toya had limited her contact with Lillian and had not allowed Joni one-on-one visits with...
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