In re Estate of Hasse

Case Date: 02/28/2002
Court: 2nd District Appellate
Docket No: 2-00-0862 Rel

No. 2--00--0862


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


In re ESTATE OF MARY T. HASSE, ) Appeal from the Circuit Court
an Alleged Disabled Person ) of Du Page County.
)
) No. 99-P-546
)
(Fritz Hasse, Appellant, v. ) Honorable
Arbor of Itasca, Inc., )  Robert E. Byrne,
Appellee). ) Judge, Presiding.

 



JUSTICE O'MALLEY delivered the opinion of the court:

On May 28, 1999, Dewey Pierotti, the public guardian of DuPage County, filed a petition for appointment of a guardian for theperson and estate of Mary T. Hasse (Mary) on the ground that shewas disabled. On the same day, the court appointed a guardian adlitem for Mary and, pursuant to section 11a--4 of the Probate Actof 1975 (Act) (755 ILCS 5/11a--4 (West 1998)), appointed DeweyPierotti as the temporary plenary guardian for the estate andperson of Mary.

On June 2, 1999, Pierotti entered into a contract on Mary'sbehalf with Arbor of Itasca, Inc., Nursing Home (Arbor) wherebyMary would reside at and receive care from Arbor.

On June 8, 1999, the summons for the appointment of a guardianfor a disabled person directed to Mary was returned with anindication that Mary had not been served and with a furthernotation that she had been discharged on June 2 from a hospitalwhere she had been a patient. On June 14, 1999, Fritz Hasse(Fritz), Mary's husband, filed a petition in the same proceedingseeking his own appointment as guardian of the estate and person ofMary on the ground that she was disabled. Also on June 14, Fritzfiled a motion seeking an order allowing him to visit Mary. Themotion for visitation recited that Pierotti's petition for theappointment of a guardian for Mary had been filed without anynotice to Fritz.

On July 1, 1999, the answer and report of the guardian adlitem was filed. The guardian ad litem reported that Mary was inneed of guardianship and that family problems had put Mary's health at risk and further recommended that Pierotti continue to serve asthe temporary guardian of the person and estate of Mary.

On July 1, 1999, the court appointed Pierotti the plenaryguardian of the estate and person of Mary and also appointed Fritzthe plenary guardian of the estate of Mary. Also on July 1 thecourt entered and approved the answer and report of the guardian adlitem.

On July 29, 1999, the court issued an order in response to theemergency motion of Fritz to transfer Mary from Arbor. The courthad conducted an in camera interview with Mary and receivedevidence from Fritz and from Mary's daughter Cindy and heardarguments from counsel for Fritz. The court ordered Pierotti toeffect the discharge of Mary from Arbor and to establish Mary'sresidence with her daughter Cindy.

On December 23, 1999, Pierotti filed a petition for thepayment of Mary's expenses, including expenses for her stay atArbor. On February 17, 2000, Fritz, as guardian of the estate,filed his response to the petition for the payment of Mary'sexpenses. His response asserted, inter alia, that neither he norMary, prior to her adjudication of disability, consented to herplacement at Arbor or the medical care she received there. Fritzprayed that the petition for the payment of Mary's expenses bedenied and that any person or entity having a claim against theestate be required to file a claim and furnish proof as to thenecessity and value of the goods and services provided. On March24, 2000, Arbor, the appellee, filed its appearance and its claimfor $8,049.08 plus costs and attorney fees against Mary's estate.

On April 13, 2000, Fritz filed a motion to dismiss Arbor'sclaims on the grounds that the order of May 28, 1999, appointingPierotti as the temporary plenary guardian was void and that thecontract underlying the claim of Arbor was equally void. On June1, 2000, the court entered an order denying Fritz's motion todismiss the claim of Arbor, and on June 29, 2000, the trial courtentered an order allowing the claim of Arbor against the estate. Fritz filed a timely notice of appeal pursuant to Supreme CourtRule 304 (155 Ill. 2d R. 304), praying that the orders of June 1,2000, and June 29, 2000, be vacated and held for naught.

Fritz argues that the court was without jurisdiction toappoint Pierotti because Mary was not personally served with a copyof the petition and summons pursuant to section 11a--10(e) of theAct (755 ILCS 5/11a--10(e) (West 1998)). Fritz also argues thatnothing in the record establishes the service of notice required bysection 11a--10(f) (755 ILCS 5/11a--10(f) (West 1998)) on any ofthe relatives of Mary named in either Pierotti's petition orFritz's own petition. Fritz cites In re Estate of Steinfeld, 158Ill. 2d 1 (1994), and In re Guardianship of Sodini, 172 Ill. App.3d 1055 (1988), for the proposition that compliance with sections11a--10(e) and (f) is jurisdictional.

However, as the foregoing chronology demonstrates, Pierottientered into the contract with Arbor in his capacity and during histenure as the temporary plenary guardian of Mary, i.e., before hisand Fritz's appointments as Mary's guardians. Section 11a--4provides, inter alia, that prior to the appointment of a guardian"the court may appoint a temporary guardian upon a showing of the necessity therefor for the immediate welfare and protection of thealleged disabled person or his estate on such notice and subject tosuch conditions as the court may prescribe." 755 ILCS 5/11a--4(West 1998).

Sections 11a--10(e) and (f) specify the notice requirements tothe respondent and the respondent's relatives regarding petitionsfiled pursuant to section 11a--8 of the Act (755 ILCS 5/11a--8(West 1998)). Section 11a--8 concerns petitions for theadjudication of disability and for the appointment of a guardian,as opposed to section 11a--4, which relates to the appointment ofa temporary guardian. The express language of section 11a--10limits its application to petitions filed pursuant to section 11a--8. Thus, by virtue of the plain language of the statute, thenotice requirements of section 11a--10 do not apply to proceedingsconducted pursuant to section 11a--4 for the appointment of atemporary guardian. In addition, the plain language of section11a--4 requires such notice as the court may prescribe, as opposedto the specific statutory notice requirements contained in section11a--10. Moreover, section 11a--4 provides, "[T]he court mayappoint a temporary guardian upon a showing of the necessitytherefor for the immediate welfare and protection of the allegeddisabled person." (Emphasis added.) 755 ILCS 5/11a--4 (West 1998).Section 11a--10 requires notice to certain parties 14 days beforea section 11a--8 hearing. Requiring such notice in connection witha section 11a--4 appointment of a temporary guardian wouldundermine the clear purpose of the provisions regarding temporaryguardians, which is to attend to the immediate needs of the allegeddisabled person.

The orders of June 1, 2000, denying the motion to dismiss theclaim of Arbor and June 29, 2000, allowing the claim of Arbor areaffirmed, and this matter is remanded for further proceedingsconsistent with this opinion.

Affirmed and remanded.

GEIGER and GROMETER, JJ., concur.