Gitlin Law Firm 2010 Illinois Divorce and Paternity Case and ...

Here, a court has already found that it was appropriate to grant Cathy the authority to
act as the children’s guardian. This gives her a cognizable interest in their welfare.
Moreover, obviously, the court could not appoint Cathy as a guardian in the first
place unless it found that the presumption of the superior-rights doctrine was
overcome.
The appellate court closed by noting, “In addition, although a guardian has standing to oppose the
termination of a guardianship, she must still prove by clear and convincing evidence that a
continuation of the guardianship is in the children’s best interests.”
Guardianship of Disabled Adult
Karbin – Plenary Guardian Does Not Have Authority to Continue Divorce Proceedings on
Behalf of Ward Where Spouse Initiated Divorce and Guardian Filed Counter-Petition on
Behalf of Disabled Person
Karbin v. Karbin, 2011 IL App (1st) 101545 (06/30/11)
Where a husband filed a petition for the dissolution of his marriage to a disabled person and the
disabled person’s plenary guardian filed a counterpetition for dissolution, the trial court properly
dismissed the guardian’s petition after the husband voluntarily dismissed his petition and left the
guardian’s petition as the only pending dissolution petition. The appellate court reasoned that the
Illinois Supreme Court’s rulings in IRMO Drews (115 Ill. 2d 201, 203-04 (1986), and IRMO Burgess
(189 Ill. 2d 270 (2000)), that a plenary guardian does not have authority to seek a dissolution of
marriage on behalf of award applied. And the language of section 11a–17 of the Probate Act
authorizing a guardian to “maintain” a dissolution action if the ward filed a petition for dissolution
before being adjudicated a disabled person could not be construed as giving the guardian authority to
proceed with seeking a divorce. Recall that Drew had held that the plenary guardian does not have
standing to maintain a divorce action on behalf of the ward. But Burgess had ruled that the bar in
Drews did not apply to a divorce petition filed before the guardian was appointed for the petitioning
spouse.
The appellate court noted that after the Drews decision, “the legislature amended the probate statute,
effective January 1, 2000, granting a guardian the specific authority to continue a dissolution
proceeding filed prior to a plenary guardian being appointed. 755 ILCS 5/11a–17.” (Ability of ward
to “maintain” a divorce case “[i]f the ward filed a petition for dissolution of marriage *** before the
ward was adjudicated a disabled person.” 755 ILCS 5/11a–17(a–5)). The court then stated, “We
cannot read into this narrow authority to “maintain” a dissolution action the authority of a guardian
to continue with a counterpetition for dissolution after the initial petition for dissolution by the
nondisabled spouse is dismissed.” The appellate court then suggested that special language be added
to the statute to address this specific situation.
Comment: I agree with Justice Cahill’s dissent. “... I believe Drews can be limited to cases initiated
by the guardian of the disabled spouse. I would remand this case with directions to the trial court to
decide whether the counterpetition filed by the guardian is in the best interest of the ward.”
Gitlin Law Firm, P.C.
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