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In re Estate of Bishop

Case Date: 09/27/2002
Court: 2nd District Appellate
Docket No: 2-01-0690 Rel


No. 2--01--0690

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

In re ESTATE OF HENRIETTA BISHOP ) Appeal from the Circuit Court
) of Lake County.
)
) No. 00--P--1055
)
(Dwayne W. Bishop, Petitioner- ) Honorable
Appellant, v. William Y. Franks, ) Emilio B. Santi,
Respondent-Appellee). ) Judge, Presiding.

JUSTICE BOWMAN delivered the opinion of the court:

On November 27, 2000, Hazel Lacy and Janetta Collins filed inthe circuit court of Lake County a petition to appoint a guardian fortheir mother, Henrietta Bishop, and to have Henrietta adjudicated adisabled person. On December 4, 2000, the court appointed attorneyWilliam Franks as guardian ad litem for Henrietta. Henrietta's son,Dwayne Bishop, challenged the petition and, alternatively, sought tobe appointed as Henrietta's guardian. On March 9, 2001, the partieswithdrew their petitions and the court dismissed the matter anddischarged the guardian ad litem. Attorney Franks subsequently fileda petition in which he requested $1,525 in fees for his services asguardian ad litem. The court entered an order granting attorneyFranks his requested amount. The court further ordered Henrietta topay one-half of the fees and Henrietta's children to pay theremaining half. The court entered judgment in the amount of $121.08against each of Henrietta's children: Hazel, Janetta, Dwayne, JosephBishop, John Bishop, and James Bishop. Dwayne filed a motion tovacate the judgment against him, which the trial court denied. Dwayne appeals (appearing pro se), arguing that the trial courtlacked the authority to order him to pay part of the guardian adlitem fees. We affirm the trial court's judgment.

No appellee's brief has been filed in this case. However, wherethe record is simple and the issues are such that we can easilydecide them without the aid of an appellee's brief, we may choose toaddress the merits of the appeal. First Capitol Mortgage Corp. v.Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). Accordingly, we choose to address the issue raised by appellant.

Section 11a--10 of the Probate Act of 1975 (Act) (755 ILCS5/11a--10 (West 2000)) governs the award of fees to a guardian adlitem in a proceeding involving the guardianship of a disabled adult. That section provides that upon the filing of a petition the courtshall appoint a guardian ad litem to report to the court concerningthe respondent's best interests unless the court determines that suchappointment is not necessary for the respondent's protection or areasonably informed decision on the petition. 755 ILCS 5/11a--10(a)(West 2000). Section 11a--10(a) further provides that "[t]he courtmay allow the guardian ad litem reasonable compensation." 755 ILCS5/11a--10(a) (West 2000). Section 11a--10(c) specifies the partieswho may be ordered to pay the guardian ad litem fees. 755 ILCS5/11a--10(c) (West 2000). That section provides as follows:

"If the respondent is unable to pay the fee of the guardianad litem or appointed counsel, or both, the court may enter anorder for the petitioner to pay all such fees or such amounts asthe respondent or the respondent's estate may be unable to pay. However, in cases where the Office of State Guardian is thepetitioner, consistent with Section 30 of the Guardianship andAdvocacy Act, or where an elder abuse provider agency is thepetitioner, pursuant to Section 9 of the Elder Abuse and NeglectAct, no guardian ad litem or legal fees shall be assessedagainst the Office of State Guardian or the elder abuse provideragency." 755 ILCS 5/11a--10(c) (West 2000).

Under section 11a--10(c), the only parties against whom thecourt may assess guardian ad litem fees are the respondent or therespondent's estate and the petitioner, so long as the petitioner isnot the Office of State Guardian or an elder abuse provider agency. Courts have interpreted section 11a--10(c) narrowly, so as toprohibit the assessment of fees against any person or entity who doesnot fit into one of the categories specified in the statute. In Inre Estate of Stoica, 203 Ill. App. 3d 225, 229 (1990), the court heldthat section 11a--10(c) must be strictly construed because theallowance and recovery of costs rest entirely upon statutoryprovisions. The trial court in Stoica ordered the petitioner, theCounty of Cook, to pay the respondent's guardian ad litem fees. Before its amendment effective in 1995 (Pub. Act 89--396,