the idols to be reviewed and relied upon by the guardian guardians of the state in proposing estate plan that deviated from test to see and i would point the court to the items that the judge should have looked at  that no fees would be reasonable for the prosecution of this appeal without first reviewing the submission of any statements from counsel following appeal or even after the result of the appeal so they begin with looking at a five six which is the relevant statute if we already putting the trial court authorized the creation of a trust for the benefit of the word or others that may extend beyond his or her disability or life that is the extent of a five six importantly there is nothing in a five six that said as certain disabled persons do not get the benefit of a five sets a five six slice of the benefit of the horde and that is all that it says where ward is understood to be disabled persons which within the definition section of the probate act includes persons that become disabled over time if perhaps a dementia become disabled because of a catastrophic accident while an adult's or a doll's case were disabled at her the other thing that  there's talk about three types of people there are people like me are people that are fully able and i can do an estate plan and i don't need any court to consider one way or the other what are should or should be able to do one then there are bills that are adjudicated say it and there's different types of people that are to say that we can imagine someone introduces a bill because he or she cannot manage her affairs that's the standard for education i can't manage my affairs they only ball on a given day i have the capacity to understand how to create a state play and you can build the best person is a typically require medication they take the medication or well they don't take their medication or and so we're a long time horizon they need a guardian for their finances but a the other thing i would say is looking back more broadly at a fox he provides that the court may approve the making on behalf of the war to such agreements as the court determines to be for the board's best interest so whether this trust agreement is ultimately executed by the court or approved by the court is to be decided by the wards best interest and the under the full weight act well we're hitting that language does not wish to meet between the types of wards best interest matter in one way or a different way at the very beginning of a fight itself the poor weak or the competition of a guardian which is what we have here in the guardian of a minor reason we have that statute and after notice to all other persons interested as  disabled or majority but that is allied by the fact that a five cell in pain is a number of factors and potential recipients charities friends that would not take under i there is no rule in test a c that would allow random charities or in this case a charity that's associated with ticket award to take those terms would have to be read out of the statute for people like doubt and again  considered it and yet in each of these instances there's no limitation on who the board may be or the type of disability the word may have so certainly the nature of permanence the worst words always mean every relative that would take this case i think i think you have to consider every person that could take by intestate succession and i think fundamentally the way the process should work  court as to why you must consider this person but i'm going to tell you why or present facts to you to support my decision but that person ought not take on this particular statement and so the facts  presented and at every entry hearing and then the trial court looking at the facts can decide what's in the best interest of the war so for example in this case if we begin with donald and his mother w provisions of the statute or of these things i am only take place upon the passing of the person and they have no stated in the distribution let me ask you a question about petition that any planned disposition is consistent with the intention of the ward insofar as they can be ascertained as and if the words intentions can not be ascertained the word will be presumed to favor reduction in the incidence of various forms of taxation and the parse partial distribution of his or her estate as provided in this subsection what do you think that that is referring to as provided in th what do you think that directs us back to i think that is eighteen eighty five of which the court must consider yes and that and then in ascertaining the court ma hearing of some kind between the desire of the statute and the breath of the statute and the breath of consideration is to provide the trial  with the greatest amount of play in the garden the graceful flexibility in dealing with living human beings whose conditions make it better conditions make it worse family members make them in their lives family members when they go out of their lives so that all myriad of factors here think are in the best interest of the war that may change in the statute empowers the guarding the state to propose the change in empowers the court to appoint guardians of item to investigate changes and then ultimately empowers the court to either act on those changes or refuse to act on those changes but in the end the guardians view as to who would be excluded by the word matters and i submit to you it is always under the best interest of a ward that the guardian it doesn't say best interest there but best interest is what babs yet this takes me to the point where about this concept maybe this is what you're built best interest in seeing that it's carried out strikes me as a bit odd and what it means is is that anybody like god it doesn't necessarily have to be limited to somebody who was developmentally disable can't do any estate because estate planning is not in my best interest because i don't see that there is in your best interest is the orderly disposition of your assets that's why ordinary people that are not subject to disability to a state players they don't want to see people in probate court fighting over assets so to create an orderly disposition of their assets to maintain harmony among all sometimes to make up are many among the various recipients they do a state like so yes there a best interest but most importantly it's a right conferred by statute if it's a right conferred by the statute that says it's in the works best interest i don't see how we can take it away by saying i don't see the immediate benefit to the w new to the war is living life as close to autonomous as possible i have the right to do and say plan the war has the right to do and say the cork tropicana of the guardianship statute is designed to make people as so people it's not easy to do sometimes you can't do it all the way and in dallas case it's very difficult but we don't want to be in a position of creating second class citizens where we say because you were like this you don't have the rights of everybody else and that's affectively what saying that there is no best best interest when a state plan would do the other argument i wanted to address to this other statute are and there are other statutes that allow for the disposition or regulate disposition of property and that but that doesn't mean that they supplant the one that expressed it was designed for the purpose it was used here so the children born out of wedlock statute that applies if litigation not simplicity which is what again we're hoping to avoid by providing everyone with notice at the time of the estate planning done the probate court and the guardianship court that we don't have wholesale litigation under is in harmony with the guardian you state we use the same criteria why these people while these are people that are in his life why maybe some tax benefits this year why not these people and then he would propose that or she would propose after the evidence and the trial court would decide based upon the evidence whether those gifts are beautiful under the circumstances same factors same analysis as will apply in a trust now turning to the attorney get your attorneys fees i won't even look at your petitions i won't even assess the recent years we have in a state of approximately eleven million dollars in value we don't know what the  light of the size of the estate i think this is too much i'm going to cut it to this but we've never had that hearing from the trial truck or simply said i'm not going to loud you use the words wants to appeal because guardianship cases and there are many cases perhaps the great majority of cases where the people who are under guardianship have been happening during their adult life and now because of all or because of the for magic injury no longer are capital and so there's a distinction made between those who have expressed wishes either in writing in per liter in their lifetime and those who have never expressed a wish and the distinction that i extricating the wishes of the war that's the specific phrase which is used three times in that section and that's the distinction that's drawn most of these adults have through their life expressed wishes as to their state plan but one who as a minor had no ability to express same is no ability today to express and could never express it and therefore is not able to deviate from the to think of language have been incorporated that the legislature wanted to draw this distinction that you're making were i'm not sure i'm that the work has never had the ability to express any wishes and therefore there are no wishes to be ascertained and therefore he does not have the ability to deviate from the intestate statute that test a statute is in place by the legislature and take their those circumstances where there's no will perhaps whether the oh you don't think you're handing language i do not i believe that there's a purpose if you will know such an e t a which counsel has relied on those interviewed by people but has there ever there's never been evidence presented to the court to establish whether or not that's thou can express wishes and we heard it was very quick but we just heard it in the impellers presentation that and i don't frankly i don't believe with his or because of his limitations that he would be able to express those wishes in with the board very familiar with those boards i know how they work there was no pleading filed in conjunction with this which evidence for the court to make a finding that he can express his wishes i think that the court made that finding based on the reports it had before it and he says observation of the w talk about which was an adult who has also hers who had expressed previously wishes about the state plan and who the beneficiaries would be and in consideration of that they would have the ability to deviate from the test a statute that would be one of the considerations that a court would look at and the guardian would propose well no but i might hypothetical was where they hadn't actually indicated anything to anything else that was my this is the adult following and six is this creating for the benefit of the ward correct yes now in that the actual section where it says what the guardian shell of food in the petition and the application  have here yes all right the ward will be presumed to favor a reduction in the incidence and various forms of taxation and the partial distribution of his or her estate as provided in this subsection self that what would you say refers back to i would say that refers back to the actions that would need to be taken to have advantageous tax circumstance in this instance there's no advantage to tax wise unless there's a gift made to basically get but this reference to the partial distribution of his or her state is provided in the subsection where does that take us back to i think it takes us back to looking at the listing of things in the statute allow the court or the at the titian of the guardian to exercise any and all powers over the estate and his affairs of the ward that the warrant could exercise if present and not under disability doesn't that suggest he broad and tat that every individual every adult disabled individual should be able to have the same kind of disposition of their property as any other disabled person or a minor under the minors treated differently what you pointed out is is this one of the weaknesses of the test a statute is that it doesn't necessarily distinguish between people and their relationships and oftentimes are the intestate chechen someone who does not have a close relationship or has n fault of the intestate it's that you put in a situation where we have the guardian coming the court saying i want to put a plan in place the guardian can guard against that and so my question is the section that could go before the court and say here's my state plan here's my proposed a state when i proposed to exclude this person because this person is on the board and there could be testimony as to whether or not the person is our ward and the judge could make a decision as to whether it was u objective lea reasonable to believe that the ward with one of slippers so translating that to this case wouldn't it be appropriate to hear testimony concerning the fact that the father in this case has had no relationship with the child has never paid any child support and climate i understand has been pretty imprisoned for most of donald's life the children the eight or nine other children that are being proposed as the potential beneficiaries have had no contact with donald correct me if i'm wrong in the circumstances but couldn't there be an evidentiary hearing to flesh out those stats and for the court to determine whether it was objective we were reasonable to determine that the ward would not want to give strangers his money the answer is yes there could be evidentiary hearing  is perhaps something that should be looked at in terms of the intestate statute and whether or not that should be altered or changed whether or not just as there is a slater statute whether or not there ought to be exceptions to contest the statute of certain actions of her but in this case we're bound by this statute with this plain language of directing us what to do and making a difference when one and not well in iraq though that actually there in the children born out of wedlock stitching aren't there some provisions that allow for that for not when he's twenty three and and there's questions surrounding what kind of access these families had to all of it's supposed to be determined at the time of his death and that's very specifically the languages and that's that you get once again we're sidestepping clearer it says that the will or trust must make distributions only to the persons who would be entitled to distributions of were to die intestate and it would have been a simple simple simple matter for the legislator to have included this language that has been incorporated by the court into a specific section of the probate act which relates to develop and to say persons it could've easily have included this language and it didn't them all together and when it uses to exclude the provision from one section there's an indication they're under general rules step story structure that they never intended or the interpretation that has been orchestrated here i believe there's statute and i don't i don't see that suggestion the intent to work but there was there one if you will in this portion because they are adults under the guardianship statute and therefore they're under that statute the legislature has specifically in this say something like i believe he did i believe he did all right what is what is your interpretation of the national natural object of one's property i think it's it's first and foremost disagreement is between mom and dad it involves the siblings and that's why this was prophetess to get all the way up here because there's a dispute as to who might get this money if that is how passes away that's the sole issue don't i just i i understand your argument but i don't understand is how you go from other words wishes to the extent they can be asked to then incorporate a lawsuit in testing i don't know that that's really here martin you've been working awfully hard this morning so maybe you want to take a couple minutes and talk about fees on appeal i would be happy for you i would i would say that my position sole disagreement is distribution that's a fight between my dad it's part of a continuing back and forth between them which involves many issues and has nothing to do with that all out why should  carry through the litigation of the trial court over this issue i think for two reasons one that in good faith fish was brought in and i think the court was struck by that and number two there was a benefit to golf how ultimately the mother and the father as to the distribution of funds so if those if that was paid and what's the difference i mean if it's especially if if there's no case like controls the situ and appeals not  with regard to the litigation over the objection that was paid for the fees were paid for it's the same issue that's before us so i all saying is your argument if it's if it's wrong it's equally a strong with regard said my client believes that a hearing into his eligibility as a parent should take place as a statute has intended  in the event that he survives the war probably it's unlikely that will occur given that the orders here is to be physically healthy young man who might live another fifty years and his father is much older the the reason for inducting at hearing after the death the war is a reason that events changed relationships over time as a matter of fact mr howell my client did have a close relationship with the ward prior to the time that the big money came in and he has exercised great effort to try to maintain a relationship so subsequent the possibility that there would be another person caring for the war during his life i think that one of the reasons for making it termination in all of human history there has been as there's a lot of evidence that matriarchs patriarchates se lors have been treated with respect and concern of what looks like a passes for love because there's just lots of references literature in the bible that sort of thing and there isn't any there isn't any reason there's not a good reason to conduct that hearing prior to the death of the  this case is all about who gets the money if there's any left upon the death of the lord and you when you cut through all the verbiage it's all about the money and who gets mama wants the money and mom's friend would take pursuant to her wishes if  some reason mom wasn't available that's really what that's really what it's about the  the statute is not an adequate you've heard over and over again that that this ward has the petitioners pleadings that well maybe if we had a hearing we could determine that maybe there's if we work at it if we if we use the board if we really wor try to s maybe we can find something there isn't any there's no of there's no reference anywhere to any possibility of it is i believe clearly in the best interest of the ward that the at any argument over the eligibility of his parents takes place  with respect to fees is young man who could live for a long time at the rate of the wasting of this estate it won't survive if he lives a normal life expectancy this estate will be gone before he annually are wasting for the state and an attorney's feeding frenzy dealing with the issue helpless war state you don't get any of the money it's about our duty under the statute it's about the rights afforded to donald under the statute is a human being he has dignity the statute affords him certain and in good conscience will present evidence to the court that says why the growing of the state would not so provide to these beneficiary it is not about northern trust giving the money to mom we're taking the money away from  fight about money it's about doing something consistent with him donald is a human being consistent with who are the people that show him dignity and respect those are the people that an evil body person would look at what is objective levy reasonable under the facts and circumstances that do study here whether or not dial sr is being frustrated whether access is being denied by the rehab relationship really doesn't have a relationship all those are