I had a telephone call

I had a telephone call a short while ago and was asked: "is there a new blackout on the subject of Elder Abuse/Financial Exploitation of senior citizens?"



Quite frankly I do not know - After Mr. Lyman published his book and was interviewed by CBS I would have thought that some progress in getting protection for grandma was being made. I do not know how America can sit back and allow grandma to be deprived of her liberty, property, civil and human rights and the press is so disinterested. I do understand why the political class is so silent - to some it appears that grandma's assets make great campaign war chests. To others protecting grandma is just too risky! Some have come forth but so far *****



Anyhow - I thought the following was a good summary of the law, to wit:



2 Horner Probate Prac. & Estates § 35:2

Horner Probate Practice and Estates

Database updated May 2012

Chapter 35. Eligibility, Appointment, and Qualification of Guardians of Disabled Persons

Michael P. McElroy, J.D.

Summary

§ 35:2. Jurisdiction and venue

Upon the filing of a petition by a reputable person or by the alleged disabled person personally, or on its own motion, the court may adjudge a person to be a disabled person only if it has been demonstrated by clear and convincing evidence that the person is a disabled person as defined in section 11a-2 of the Probate Act.1 If the court adjudges a person to be a disabled person, the court may appoint: i) a guardian of his or her person, if it has been demonstrated by clear and convincing evidence that because of his or her disability the disabled person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his or her person; or ii) a guardian of his or her estate, if it has been demonstrated by clear and convincing evidence that because of his or her disability the disabled adult is unable to manage his or her estate or financial affairs; or iii) a guardian of his or her person and of his or her estate.

In re Estate of Steinfeld, 158 Ill. 2d 1, 196 Ill. Dec. 636, 630 N.E.2d 801 (1994) (sibling had standing to challenge disability and guardianship order).2

The court has no jurisdiction to appoint a guardian for a nonresident of the county3 or state.4 A "nonresident" in this limited context means a disabled person who is beyond the jurisdiction of the Illinois courts and who has been adjudged a disabled person, and for whom a guardian has been appointed by a foreign court.5 Illinois courts should recognize the acts of foreign courts as valid, and recognize the guardian appointed by the foreign court as the guardian of a nonresident disabled person.6 However, the court may appoint a guardian over the estate of an adult domiciled in Illinois, but absent temporarily.7

When an alleged disabled person is a resident of Illinois, the proceeding must be instituted in the court of the county in which he or she resides.8 However, if the alleged disabled person is not an Illinois resident, the proceeding must be instituted in the court of a county in which his or her real estate or personal property is located.9

A proceeding to appoint a guardian of the person of an alleged disabled person is a proceeding in personam and is based on jurisdiction of the person.10 The status of disability may be determined only by a hearing on the petition and by overcoming the presumption that the respondent is not disabled.11 It is the finding of the court or the jury that a person is disabled which creates the status of disability.12 Disability cannot be presumed in order to establish jurisdiction.13 One of the requirements for obtaining proper jurisdiction is that service be made upon those relatives listed in the guardianship petition.14 [NB - all the cost relatives are required to be named - this was not done in Sykes! The attorney for the plenary guardian admitted on the transcript this failure - thus, as Mary Sykes has about a million dollars in fungible gold coins and similar assets the mention of this fact promulgates an angry letter by the guardian ad litem to the Illinois ARDC]

Where the probate court assumes jurisdiction of the person and estate of a disabled person, but another court acquires jurisdiction and appoints a guardian before the probate court does so, the appointment is valid and binding on all parties in any collateral attack.15 However, a finding by a court of another state, in a commitment proceeding, that a person borders on mental illness, does not constitute an adjudication of mental illness.16

Westlaw. © 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes



1

755 ILCS 5/11a-3(a).

2

See In re Estate of Nelson, 250 Ill. App. 3d 282, 190 Ill. Dec. 212, 621 N.E.2d 81 (1st Dist. 1993).

3

Laird v. Dickirson, 241 Ill. 380, 89 N.E. 795 (1909).

4

McCormick v. Blaine, 345 Ill. 461, 178 N.E. 195, 77 A.L.R. 1215 (1931); In re Oelerich's Estate, 31 Ill. App. 2d 457, 176 N.E.2d 549 (1st Dist. 1961).

5

Parcher v. Reese, 202 Ill. App. 509, 1916 WL 2689 (3d Dist. 1916).

6

Parcher v. Reese, 202 Ill. App. 509, 1916 WL 2689 (3d Dist. 1916).

A one-time Illinois resident, subsequently adjudged a disabled person in Canada, is a "nonresident," entitling the Canadian representative to the Illinois funds and assets of the disabled person's estate as against the Illinois guardian. In re Spengler's Estate, 282 Ill. App. 607, 1935 WL 3762 (1st Dist. 1935).

7

See McCormick v. Blaine, 345 Ill. 461, 178 N.E. 195, 77 A.L.R. 1215 (1931).

8

755 ILCS 5/11a-7.

9

755 ILCS 5/11a-7.

10

In re Oelerich's Estate, 31 Ill. App. 2d 457, 176 N.E.2d 549 (1st Dist. 1961).

11

In re Oelerich's Estate, 31 Ill. App. 2d 457, 176 N.E.2d 549 (1st Dist. 1961).

12

In re Oelerich's Estate, 31 Ill. App. 2d 457, 176 N.E.2d 549 (1st Dist. 1961).

13

In re Oelerich's Estate, 31 Ill. App. 2d 457, 176 N.E.2d 549 (1st Dist. 1961).

14

In re Estate of Debevec, 195 Ill. App. 3d 891, 142 Ill. Dec. 302, 552 N.E.2d 1043 (5th Dist. 1990); Matter of Sodini, 172 Ill. App. 3d 1055, 123 Ill. Dec. 67, 527 N.E.2d 530 (4th Dist. 1988).

15

People ex rel. Kagy v. Seidel, 22 Ill. App. 2d 316, 160 N.E.2d 681 (1st Dist. 1959).

16

Moneta v. Hoinacki, 394 Ill. 47, 67 N.E.2d 204 (1946).





2 Horner Probate Prac. & Estates § 35:2



Ken Ditkowsky

www.ditkowskylawoffice.com