In re Estate of Kusmanoff
| Decision Date | 29 August 2017 |
| Docket Number | NOS. 5-16-0129, 5-16-0132, 5-16-0292 cons.,S. 5-16-0129, 5-16-0132, 5-16-0292 cons. |
| Citation | 2017 IL App (5th) 160129,83 N.E.3d 1144 |
| Parties | IN RE ESTATE OF MaryLou KUSMANOFF, an Alleged Disabled Adult (Carol Easterley, Petitioner-Appellee; Lynda Burgett, Counterpetitioner-Appellant; Michael Burgett, Interested Person-Appellant; and MaryLou Kusmanoff, Respondent-Appellant). |
| Court | United States Appellate Court of Illinois |
John L. Gilbert and Timothy C. Sansone, of Sandberg Phoenix & Von Gontard, P.C., of St. Louis, Missouri, for appellants Lynda Burgett and Michael Burgett.
Brian T. McCarthy, of Belleville, for other appellant.
Jane Unsell, of Unsell, Schattnik & Phillips, P.C., of Wood River, and Samantha Unsell, of Keefe, Keefe & Unsell, P.C., of Belleville, for appellee.
¶ 1 These three appeals, concerning the guardianship of the person and estate of MaryLou Kusmanoff, were consolidated in this court for the purposes of oral argument and decision.1 In the first appeal, MaryLou's son, Michael Burgett, and his wife, Lynda Burgett, appeal the March 4, 2016, order of the circuit court of St. Clair County, which adjudged MaryLou to be a disabled adult pursuant to section 11a-2 of the Probate Act of 1975 (Probate Act) ( 755 ILCS 5/11a-2 (West 2014) ) and appointed MaryLou's daughter, Carol Easterley, as guardian over her person and estate.2 In the second appeal, MaryLou also appeals the circuit court's order adjudging her to be a disabled person and appointing Carol as the guardian over her person and estate. Both of these appeals are taken pursuant to Illinois Supreme Court Rule 304(b)(1) (eff. Feb. 26, 2010). In the third appeal, MaryLou appeals, pursuant to Rule 304(a) ( Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010)), the circuit court's June 21, 2016, order, which denied her motion to take judicial notice of a Texas judgment finding that a guardianship of her person and estate is not required and to terminate the circuit court's adjudication of her disability.
¶ 2 The issues presented by the three appeals are whether the circuit court (1) had jurisdiction to enter the plenary guardianship order pursuant to the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (Guardianship Jurisdiction Act) ( 755 ILCS 8/101 et seq. (West 2014)), (2) erred in its adjudication of MaryLou's disability, (3) erred in appointing Carol plenary guardian over MaryLou's person, (4) erred in appointing Carol plenary guardian over MaryLou's estate, and (5) erred in denying MaryLou's motion to take judicial notice of the Texas judgment and to terminate the adjudication of disability. For the reasons that follow, we reverse, without remanding, that part of the circuit court's March 4, 2016, order that found that MaryLou requires a guardian of her person. We affirm that part of the circuit court's order that found that MaryLou requires a guardian of her estate. We vacate the remainder of the circuit court's order and remand to the circuit court for the limited purpose of holding an evidentiary hearing in which the circuit court appoints a corporation pursuant to section 11a-5(c) of the Probate Act ( 755 ILCS 5/11a-5(c) (West 2014)) as guardian of MaryLou's estate and imposes any limitations on that guardianship that should be imposed based on MaryLou's actual mental, physical, and adaptive limitations as set forth in sections 11a-3(b) and 11a-12(a) and (b) of the Probate Act ( 755 ILCS 5/11a-3(b), 11a-12(a), (b) (West 2014)), with reference to the duties of a guardian of the estate that are set forth in section 11a-18 of the Probate Act. 755 ILCS 5/11a-18 (West 2014). In addition, we instruct the circuit court that, should MaryLou so choose, she be permitted to be absent from the hearing pursuant to section 11a-11(a) of the Probate Act ( 755 ILCS 5/11a-11(a) (West 2014)) and that her testimony be procured through electronic or other means as set forth in section 106 of the Guardianship Jurisdiction Act. 755 ILCS 8/106 (West 2014). Finally, due to a superseding petition to terminate the guardianship, we find any issue regarding the circuit court's failure to rule on MaryLou's April 13, 2016, petition to terminate the guardianship is moot but point the circuit court to section 11a-20 of the Probate Act ( 755 ILCS 5/11a-20 (West 2014) ) and the standards set forth therein for considering MaryLou's petition to terminate and note that, in light of our opinion, MaryLou's petition to terminate should only be adjudicated as it pertains to the guardianship of her estate.
¶ 4 The facts necessary to our disposition of these three consolidated appeals are as follows. On April 17, 2015, Carol filed two petitions in the circuit court of St. Clair County. The first petition requested that MaryLou, born December 31, 1931, be adjudged a disabled adult pursuant to section 11a-2 of the Probate Act ( 755 ILCS 5/11a-2 (West 2014) ) and that Carol be appointed a temporary guardian of her person and estate pursuant to section 11a-4 of the Probate Act. 755 ILCS 5/11a-4 (West 2014). In her petition to be appointed a temporary guardian, Carol alleged that MaryLou resided in Belleville, had a personal estate of approximately $750,000, is a disabled adult incapable of managing her person or estate, and had been the victim of fraud and abuse. On that same date, the Honorable Christopher Kolker entered an ex parte order adjudging MaryLou to be a disabled person as defined in section 11a-2 of the Probate Act ( 755 ILCS 5/11a-2 (West 2014) ) and appointing Carol as temporary guardian over MaryLou's person and estate for a period of no longer than 60 days. There is no report of proceedings as to any hearing on Carol's petition for a temporary guardianship. The second petition Carol filed on April 17, 2015, is a petition requesting that she be appointed the plenary guardian of MaryLou's person and estate pursuant to section 11a-3 of the Probate Act.3 755 ILCS 5/11a-3 (West 2014).
¶ 5 On April 24, 2015, Carol filed a chancery case, which was later consolidated with the instant probate case, in which she requested, as temporary guardian over MaryLou's estate, a temporary restraining order enjoining the release of any of MaryLou's funds from Amoco Federal Credit Union (Amoco) in Texas. A temporary restraining order was subsequently entered, and on May 4, 2015, the parties agreed to extend that temporary restraining order until such time as Carol's petition for a plenary guardianship over MaryLou was adjudicated.
¶ 6 On May 8, 2015, MaryLou filed a motion to vacate the circuit court's April 17, 2015, order appointing Carol as temporary guardian of her person and estate. In her motion to vacate, MaryLou argued that the circuit court erred in adjudging her to be disabled without any expert evidence and without a physician's report as required by section 11a-9 of the Probate Act. 755 ILCS 5/11a-9 (West 2014). In addition, MaryLou averred that she has interests opposed to Carol, disputes that she is disabled or in need of guardianship protection, would nominate someone other than Carol to act as her guardian if such need did arise, and believes that Carol has acted contrary to her financial interests or in violation of fiduciary duties to MaryLou in the past.
¶ 7 On May 18, 2015, Carol filed a response to MaryLou's motion to vacate and a request for a medical evaluation of MaryLou. In the response to MaryLou's motion to vacate, Carol averred that the temporary guardianship was based on Carol's claim that MaryLou was a victim of fraud or abuse. Carol averred that her brother, Michael Burgett, moved MaryLou from the State of Illinois "sometime after March 11, 2015," and transferred the majority of MaryLou's assets to his personal accounts in Texas. Carol attached a report from Dr. John Magner, from Cahokia Health Center, dated December 31, 2014, wherein Dr. Magner diagnosed MaryLou with end-stage dementia and stated that she was severely disabled and required 24- hour daily custodial care. However, the record indicates that Carol later withdrew this report, and it was never introduced as evidence in any subsequent proceeding on Carol's petition.
¶ 8 On May 29, 2015, Carol filed a motion to extend her temporary guardianship over MaryLou's person and estate, stating that the guardianship needed to be extended in order to allow time for MaryLou to be examined by a physician and for a hearing date to be secured on the matter of her competency. In response to Carol's motion, MaryLou averred that she was a resident of St. Paul's Nursing Home in Belleville in February 2015 and that Carol came to the nursing home and demanded she sign a document, which MaryLou refused to sign. MaryLou further averred that she understood the import of the document to be a power of attorney or other authorization to allow Carol access to MaryLou's assets. According to MaryLou's response, upon her refusal to sign the documents, Carol told MaryLou she was "done with her" and left the nursing facility and never returned. MaryLou averred that she then contacted her son, Michael, in Texas, and asked that he assist her in obtaining discharge from St. Paul's and relocate her to live near him in Texas, including directing him to collect her bank accounts for safekeeping. Finally, MaryLou stated that she would consent to be evaluated as to cognitive capacity by a qualified physician of her choosing.
¶ 9 MaryLou attached a physician's report from Dr. Jerome Carolino, a board-certified family medicine doctor and medical director of Mount Moriah Health and Rehabilitation Center, where MaryLou was then residing in Texas. This report was contained in a sealed envelope with no indication that it had ever been opened prior to this court's examination of the record. According to this report, MaryLou was able to give a coherent explanation of her legal situation and expressed a desire to be in Texas with her son. Dr. Carolino found MaryLou was awake; fully...
To continue reading
Request your trial