Cary A. Lind, P.C. - Arlington Heights Probate Attorney

THE DARK SIDE OF HEALTH CARE POWERS OF ATTORNEY - Part 3

Cary A. Lind, P.C. - Arlington Heights Probate Attorney

THE DARK SIDE OF HEALTH CARE POWERS OF ATTORNEY - Part 3

By Cary A. Lind

Procedural Issues.

In utilizing §2-10 of the Power of Attorney Act, there are still the usual issues to be addressed in any guardianship proceeding. First and foremost, the principal must be mentally disabled as defined in Article 11a of the Probate Act. If the principal is not mentally disabled, then he or she presumably can stand up to the agent without help from a court. The failure of the principal to act in the face of abuse of a POA is itself evidence of mental disability.

It is also necessary to present a medical report (CCP-211 in Cook County) prepared by a physician or other qualified person documenting the disability. For the Objector who cannot visit with the principal or take her for an examination, how do you get that accomplished? You may have to ask the court for leave to compel a medical or physical examination. Otherwise, the Objector is in a "Catch-22" situation where he cannot prove the disability for lack of access to the principal but he cannot get access to the principal until there is proof of disability. §2-10 has its own requirement that the court find that "the principal lacks the capacity to control or revoke the agency" before the section can be used. Without a medical examination, the Court may not have a sufficient basis to make that finding. Thus, the court should allow sufficient access to the respondent to obtain the evidence necessary for the initial finding.

To date, I know of two cases that have reached the Illinois appellate courts that have addressed §2-10 in connection with a POA, and both of them dealt primarily with property POAs. I suspect that not too many cases even get to the point of appeal, let alone an appellate decision, because older persons who reach the point of becoming mentally disabled often do not live long enough for an appeal to reach the point of a written decision. Estate of Mary Ann Wilson, 373 Ill.App.3d 1066, 311 Ill.Dec. 811 (Ill.App. Dist. 1, 2007), dealt with an apparent theft and financial abuse by means of a property power of attorney. Wilson noted that it was a case of first impression with regard to subject matter jurisdiction over a respondent in guardianship proceedings. The trial court had appointed a temporary guardian and a guardian ad litem. The agent under the power of attorney moved for a preliminary injunction to prevent the temporary guardian from exerting any authority as temporary guardian for failure to meet the requirements of §2-10. The motion was denied, and the agent appealed, claiming that the court had no jurisdiction to suspend the operation of the POA until after a hearing and presentation of sufficient proof pursuant to §2-10.

The appellate court did a thorough review of jurisdiction under Illinois law and determined that in light of the financial harm that had already occurred, the trial court had jurisdiction to appoint both a guardian ad litem and a temporary guardian. The Court stated:

  • We agree with the circuit court's ruling that Bailey's motions would not bring the money back and that the "irreparable harm" with respect to the missing funds had already occurred. Moreover, based on the evidence in the record and Wilson's condition when discovered, there does not appear to be a likelihood that Bailey would be successful in her efforts to have the powers of attorney reinstated because the status quo, as it related to Wilson prior to the circuit court's intervention, was plainly appalling.
  • For the foregoing reasons, we find that the circuit court properly exercised subject matter jurisdiction because Williams brought a justiciable matter before the circuit by initiating an action under the Probate and Power of Attorney Acts after finding her family member in deplorable conditions. We further hold that the circuit court correctly denied Bailey's motions for a TRO and preliminary injunction based on the record because she did not and could not articulate the required elements for such relief. Accordingly, we affirm the judgment of the circuit court.

Wilson was a first district case and is binding (perhaps, subject to conflicting case law) only on the Cook County Circuit Court and its judges. To the contrary and in the absence of clear proof of harm to the principal, at least one judge in one of the collar counties at the time of publication of this article has taken the opposite view, namely, that a Court does not necessarily have jurisdiction to order a medical examination or to appoint a GAL prior to adjudication and until the POA is successfully challenged. As noted above, that position is inconsistent with the finding necessary to invoke §2-10.

Estate of Mary Rose Doyle, 362 Ill.App.3d 293, 838 N.E.2d 355, 297 Ill.Dec. 868 (Ill.App. Dist. 4, 2005) did not address §2-10 in the trial court but did in the appellate court. The facts are not stated fully in the appellate opinion. What can be determined is that for many years, Rose Marie Doyle took loving care of her mother, Mary Doyle. and Mary executed a property POA naming Rose Marie as her agent. As time went on, as the trial court stated, "in her own words, Rose Marie simply wore out. . . . Although the court acknowledge[s] the time and efforts Rose Marie has spent in taking care of her parents, it does appear there came a time when her devotion turned to abuse." There was also apparent interference with Mary's seeing others, the court noting that "[b]eing able to see and visit with her family and friends should be an important part of [the best quality of life for Mary's remaining years] . . ." At some point, Mary purportedly executed a document revoking the POA. Mary's son, James, and son-in-law, Gary, petitioned for guardianship, and after a five-day trial, the trial court appointed James as plenary guardian of the estate and Gary as plenary guardian of the person.

Rose Marie appealed, claiming among other grounds that appointment of plenary guardians was improper in the face of the existing POA. Rose Marie also raised the specific issue of whether a mentally incompetent individual can revoke a POA. The majority opinion affirmed the trial court but skirted the question finding instead that the trial court "[i]mplicitly revoked respondent's (Rose Marie's) power of attorney pursuant to section 2-10 of the Power of Attorney Act . . ." The appellate court reversed the trial court finding and held that although the petitioners did not file any petition under §2-10, the trial court made findings that satisfied the substantive requirements of that section. The dissent argued that the trial court did not follow the specific procedures of §2-10 and that a court should not interfere with the effects of a POA without following all of the requirements of §2-10, both substantive and procedural. The dissent said, "Despite the specific requirements of section 2-10, there was no petition filed in this case, no notice, and no findings." The dissent also noted that "[i]t is not enough to revoke a durable agency that there is harm to the principal's person or property. To revoke there must be substantial harm to the principal's person or property 'in a manner not authorized or intended by the principal . . . An infinite variety of fact situations is possible. It is not clear what the situation is here. The trial court must determine whether there is a basis for setting aside the power of attorney under section 2-10. Simply appointing a guardian does not do so."

Neither of the above cases squarely ruled on the specifics of §2-10 other than the dissent in Doyle, which was not the holding of the court. It will take further cases to give greater guidance on the interplay between POAs and the Probate Act.

Financial concerns.

Guardianships are expensive to begin with, because all actions are court-supervised. Throw in a POA contest, and if the agent resists, the costs can skyrocket.

Who pays for the proceedings? In this specific area, the law is unclear. Fees incurred in obtaining appointment of a guardian will normally be paid for by the Estate but not necessarily services related to who will be guardian. Judge Miriam Harrison (now retired), who was the "dean" of judges with regard to disabled estates, told my clients on more than one occasion that she would not let a guardianship respondent/ward pay for a fight between two children over who would serve as guardian. However, to the extent that the parties are fighting about validity and abuse of POAs, it may be merely a fight about who will act or it may in fact be justifiable to protect the ward. That will likely be another question of fact for the court to decide in each case. With those issues uncertain, a party who invokes §2-10 should operate on the assumption that fees and costs may never be recovered from the principal's assets. Attorneys who take on such challenges must advise their clients of that fact, let them know that the proceeding may be extremely costly, and warn them that the attorney's fees must be paid win or lose and whether or not any fees or costs are ultimately reimbursed from the estate.

©2007 by Cary A. Lind, all rights reserved.

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