the next case on the called the dark it is agenda number eleven case number one one two eight one five jan carbon versus marsha levinson carbon adult had no power to initiate a dissolution proceeding on behalf of the ward that it said it wasn't applicable in every case but it seems to be a given at this time that it is in every case  and i think the drews as a rule is is outdated it's unfair and it's a particularly unfair in this case where this is a case where my client became disabled she got married in eighty four she became disabled in one nine seven her husband separated from her in two thousand and four yes about the bill twenty five forty seven yes what is it that's still pending it's pending yes but the fact that the commission is taking action  interesting lee enough the two cases that drew's relied on were from one thousand nine hundred ninety seven in one thousand one and neither of those cases did they apply the rule that they they adapted but that is the general rule that is what the probate judge is believed to be the law and it is generally the rule you cannot do it if you're a guardian and you cannot initiate a dissolution proceeding no matter well if the bill were law i wouldn't need to be here but you never know what's going to happen in the legislature i don't know if it's a priority of the legislature i don't know how people feel about that right now i i only included the act because i took the counting no well yes and no the particular facts including the counter petition frankly had i think that had the judge boyd understood the law he should have allowed the counter petition to be filed frankly at the time because it wasn't allowed but he wasn't seemingly aware of that but the bottom line is when when this case was filed by jihad he participated in the litigation for almost two years the case he didn't he answered the counter petition you know you could say that he waived his his head and i really could say it but i wouldn't go with the waiver actually because he participated in this for two years our position is that he file he participated in discovery in that really he was only it was only when things got tough for him that he pulled the plug on the divorce this is a man who's living with another woman in a different state the other woman he's living with i don't care if she's his caregiver are his lover i don't care he's living with her her name is on the mortgage i don't care if you if it is the mortgage says that it's as his wife we know she's not his wife in jail and says i didn't tell anybody to put her on this wife i don't care if he did or he didn't she's still there as his as the coal miner of his townhouse marsh's living in ohio this is not a situation that there is or it's a sham it's not a real marriage i think that is the true basis for distinguishing the case in the drews case the couple was married and the husband became disabled after one year of marriage the wife had the assets and she sought to divorce  the husband's family sought to have this divorced of the wife said no right away she didn't answer the petition she filed a motion to dismiss she didn't answer interactive tory she didn't seek support and made him go on and on it was wrongly decided from from the get go frankly i think and it's leave that it was decided more as a religious matter than a legal matter it was decided at the time that marriage was too personal of a decision well it's personal of obviously it's personal but it's also a very legal decision when you're married you can file a joint income tax when you're married you can go into the hospital room of a person who's in a coma when you're married you can collect social security death benefits if you've been married for more than ten years it's legal some people may think it's spiritual some people think it's effect crimmins there's the tear in the same city of marriage but i don't think those concepts apply i don't think they are correct here this is i consider marriage a legal contract and this is a legal contract that i think the guardian under the best interests of the disabled person should be able to dissolve yes and that's my best argument how would how do we know that a person who is incompetent wants to be well in some cases you can tell him in some cases you can't because you know disability is a wide ranging category you go and in this case if you looked at the legislation and you look at it in re k g k e j i'm sorry i'm proposing that that be the rule that's adopted if you can tell if the person can come in and testify you know some some disabled people can can testify to their wishes some some can do a state plea and it will take if they have testamentary capacity even though they're disabled the guardian can do in the state plan but some you can't and frankly in this case i would contend that my client you could  argues because jen says they love each other and they don't want to be divorced but i believe that you can determine this are the best interests of the ward in a evidentiary hearing before the probate judge the probate judge knows these people she knows this case you can put on the best interests of best interests to enter he can testify can i love her she loves me you know if he can get around the hearsay on that but but there is you can you can tell is it in her best interest is it the woman's best interest to remain married to a man who's living with another woman in another state spending marilyn come i would say no but he can make any argument he wants and the trial judge in any case not just this case if you cannot distinguish trues in this case the trial judge can make that call and we could live with there but i don't think there is if there's any fairness to having a blanket rule that this can never be the is i'm sure you read the amicus brief filed by the public guardian there are situations where people are getting terribly abused in this situation there are fists there's physical abuse there financial abuse there there's no reason for this there's no reason why it cannot be a case by case determination based either on the ability of the ward to testify and show or the ability the dissolution the action there unless we go forward is a permanent permanent act that requires general anesthesia it requires surgery it requires a very good the end of a fundamental right to have children in bear and to raise children this this is marriage i mean i'm sorry to to see if i seem cavalier catalyst but it's it can the relationship if it's financial if he wants to see here he can come and see her in ohio if he loves her dearly and wants to let him come but it's not right that it can never be dissolution this is this is not as personal as is the sterilization they're both legal but the sterilization is six weeks exclusively personal this i would say is primarily a legal contract and the personal is secondary i would actually think that you know because it's financial in this case it could be it could be a decision of the guardian of the estate but i don't have to go there is the guardian of the person can make this decision but i do believe it is a financial decision and that's a personal particularly in my case a moment ago you alluded to the judge weighing the and in that case they adopted the legislation they adopted a clear and convincing evidence standard of that's fine by me i think that's you know if you want to take a different approach that's fine too but i'm quite satisfied with their senses it is a very serious decision and it is a weighty decision but when you're the guardian of the person you make weighty decisions all the time it's a it's a big responsibility and guardians take it very seriously and they can do it al i think that all of jim's arguments frankly are arguments to be made to the trial judge if you says it's most likely that marshall would have wanted to remain married to him let him show the act to the trial judge let him let him talk about let him talk about the serious risks inventions in his brief about the guardian's pursuing this if there's serious risks if the bought in the guardian has a personal bias as he claims my client has let the trial judge look at it and say you know what i think you're just trying to cut him out of the inheritance no we're not going there that's fine i can't i'm just saying it cannot be a blanket prohibition against it that's that's all i was so if the trial judge were to find that i could live with it comfortably and i and i believe the attempt that's the case with all of his arguments so that's really i don't you could take that much time as to the most you took two motions with the case and i was surprised frankly about that but as to the motion to dismiss my not knowing that i didn't have permission to file a petition for leave to appeal after i had permission to file the appeal that that i find deeply offensive that i think really be a due process violation if the disabled the word the guardian of a disabled person didn't have a right to an appeal of something of this magnitude i think that would be a travesty as to the motion to strike i said in my response t act it was in reply to their argument that this is a legislative decision and i thought that you know was appropriate if you deem otherwise the mother wise thank you very much i thank you very much  appellate court decision that affirmed upheld the trial court decision to both rule on the drews case they provide under druce case to deny the guardian the right to file a petition for dissolution of marriage proceed with the dissolution of marriage this is not an arbitrary piece of legislation this is based upon the policy that has been in the state of illinois for years and years council pointed out how far back it goes so it is a decision  basically the policy that the legislature has stated in this state the legislature is clear about its interpretation of and his statements in probate act eleven a day seventeen  which empowers the guardian to do certain acts and not to do certain acts the right of the guardian to file or proceed with the dissolution of is prohibited by the drews case and by the legislature and i say by the legislature specifically because after the groom's decision the legislature did in fact have an opportunity and did in fact amend the legislation to carve out one narrow exception that's one of the burgess case relied on and continue with that divorce action that is the sole exception that the legislature in two thousand the year two thousand act of two thousand granted to a guardian since that time is that every opportunity to amend  well i think at the bigart the best interest is not the first standard that we have to go by the first test that has to be used i think the first test the first hurdle if you will is what is the intention of the word and that has been consistent in all of the cases that the supreme court has has rendered even in k j what is the intention clear intention of the of the ward before making a decision or is it best the best  interest soon and maybe come into play but not initially i'm saying that the intention the current tension of the ward is what prevails and that's what the drews policy and legislative policy decision is based upon is that only if the word has made a clear indication that they want to be divorced should that divorce be allowed if there is a defense then the defense if the nother that they capable party brings the action then the defense would be that i don't want to be divorced if there is some clear intention by the warden and counsel pointed out that there are different levels of incompetency and point of fact in the case the facts in this case and the record show that marcia has expressed the interest to not be divorced to still remain the facts of this case upon which the decision has to be made so in this case the award has stated the preference and therefore i don't think you get into what's in the best interest i mean someone can see this in the best interest that i not be married i'm i'm a workaholic i'm hardly ever home my wife actually prefers me not to be home too much and so we have an ideal marriage and that's not the basis upon which my marriage should stay in existence as whether it was in the best interests  her daughter may decide that there's somebody else out there much better suited for my wife or for her mother than myself the best interest he really has to come in way after the first standard which is what is the intention of the party it is so person medical decisions so i'm not prepared to argue that best should be the case but this is different whether a person should be married or not married or with should remain married or not marry is so personal i mean i think we've all had such what are the facts medical conditions and i'm not going to argue whether or not i thought the alternatives were a better approach or not a better approach but they did address that issue in a i think they found that it wasn't as good that they had try certain countries cept of methods and  that they didn't think it was as permanent and as useful to her and the risk of a pregnancy was so disastrous or could potentially disastrous that they felt that the sterilization was the only remedy i mean i could no or want to are not prepared to really argue whether  the guardian to make i don't think when an interview situation although the physical abuse could exact result in something physically happening to the ward that the guardian would have to make a medical decision do i do i have an operation do i so there is really i would have to take exception to that one i find it somewhat offensive for counsel to point out that the ward is living in a different state than is jan carbon the word or at the guardian moved t ward from the home the marital home with jane cover to be taken care of her but in terms of whether or not there is a murder relationship i think everybody in this room knows there are thousands of the serial couples who are living separately whether they're living in different households they remain married or there's a living in the same household and they remain married they could be living in the same household never talk to one another they could be living in the same household and are you gaily with each other and the marriage sustains there are situations where one of the marital partners infidelity i don't think that the fact that one party lives in a different household or different state changes the fact that they love each other that they were a loving family couple for fourteen years before the disability that he lovingly cared to lovingly cared for his wife even though she was in a disabled state twenty four seven for seven years until his disability his own personal disability the parkinson's got so severe that he was no longer physically able to do so so that to say that he didn't have a loving marital relationship because they weren't conjugal mated weekly or monthly or even the end really i don't think that's the basis of the definition of what a marriage or a good marriage is i think a marriage can exist and it's a feeling it's a feeling of wanting to be committed to the other person and i don't think there's been any showing whatsoever i mean i know there's been no showing whatsoever that this marriage should not continue so i think that the policy that was set by the legislature in this case is the policy that is appropriate in this state and that therefore this court although it doesn't target statute it shouldn't be amending statutes and when the statute is clear by by the legislature that this court can interpret it but i don't think you can change i think that's exactly and the drews state's what the law is what the quickest legislature and tens of what the policy is and in fact as i as i said before the legislature continues their policy since reference to it in a reply brief for the very first time i think it was appropriate fair because i didn't have an opportunity to provide a written response to it in the briefs and came in after a brief i think for that reason not to be stricken but the point is it's still pending it's been pending for quite a while so we don't know if it's going to pass or in what form it's going to pass if in fact this court were to in my opinion mistakenly said some standards and allow a guardian to file a  will and the situation so i think that for practical reasons i think it is something that the legislature should decide to trim and whether or not the policy has changed i don't know that it's a religion has any showing that this is a religious basis for the rule in the drews case in that and the legislative statute in terms of it being prohibiting the guardian i think it's because it's a such a personal nature that a marriage is such a personal decision i think we all know that there's probably family members and friends of a christian who say don't marry that person or why are you still married to that person and yet the individual decides for whatever value and purpose it serves now i'm to remain married or  we do it and so it's not for a third person or third people to make this decision it's something so personal that only the individual can make it and i don't think that it's appropriate to give the third party or the particular situation the right to make that decision the statute for power of attorney for health gives the individual the right to a delegate the end of life situations because that something is a medical health situation to be allowed to do there's no provision in the statute that allows for a person to delegate the right to remain married or to get married in the section so it i so personal that it's not even delegate all it's only to make that decision i think that it is appropriate to continue to not allow did not permit a guardian a third person to make that decision for award i do think  that part of the argument by the appellants is to really kind of malign g m to make him look like the bad guy here you know when they talk about the fact that he participated for two years he did file the petition there's no question about it initial position it's clear why he did it he did it to ameliorate the his adopted daughter kara hibbler who made the request and we don't why didn't she found ohio when she found in michigan where she lives where kyra lives you know clearly those until the jans motion to ask for the appointment of a guardian ad litum to prove what he knew that marshall was in fact not wanting to get this divorce that's what he wanted to guardian eleven point because he wasn't until it went to the probate court that they found out about drew's but up until that point in time jan had repeatedly filed pleadings and affidavits asking for this case to be dismissed because she did not want to be divorced he did not want to be divorced yes he filed it at the time included a reference to the fact that there were a loving couple they still love each other during the proceeding and she did not want to be divorced that was never denied it isn't back to the facts of this case upon which is court has to make a decision can't presume other facts that are not in evidence and those effects are in evidence if he makes an allegation many times affidavit many times and she doesn't deny it in point of fact it is the law it is the facts in this case in which this court has to make a that divorce action but other than that i don't think this court should find that a third party has the right to make that decision and therefore should uphold the legislature and the supreme court in it rebuttal just a few points first of all the legislation is not clear nowhere in the legislation does it say that a guardian cannot initiate a divorce it's silent so this court has to interpret it and the court interpreted that legislation hundred ninety six eighty six and said that that's what it meant so you can look at it again and say no i don't think that that's what it means in light of today's world i don't know that you don't have to go so far as to say he didn't mean your decision and they just the appellate court the justices said that in their opinion as i noted in my reply brief the first words out of justice garcia's mouth when i spoke stood up to the podium where well mr rosen i suppose this is an intermediary stop for you because everybody knew i had to come here to get relief that there had just escaped hell did me a favor by writing a dishonest saying well we could we could distinguish and let's go based on facts but but i had to come here so it's not as though the appellate court felt that this had to be this was wrong and it's not as though the legislation stated otherwise it's just like you can't take any meaning from the fact that  legislature chose not to amend in two thousand and add some change about this is it's like saying that you can take some meaning out of the fact that a p l a is tonight you can't do the at this is that that they didn't amend the statute in two thousand to change this  is irrelevant to that doesn't say anything i don't know what was before the legislature i don't know what people were thinking they had a situation in the era of the burgess case and justice breyer the question is very interesting about burgess to me because you say what's the know if they don't want to be married you know you can't keep them married so that that's the that's the difference is ultimately if it is unable to person wants to divorce if jen had wanted to persist with the petition that he had filed ultimately it wouldn't have mattered what my client if she'd wanted to remain married or not she has a right to be divorced if the law they did initiate this and he did say it irreconcilable differences by the way that's that's relevant to this loving couple if you can think for yourselves if an able bodied man would initiate a divorce because his daughter says too i mean that that's to me highly incredible but  in terms of initiating and defending the divorce if the person if a person who's not disabled initiated divorce and then becomes disabled the guardian is allowed to pursue it how do you know that to get them disabled person wouldn't have changed her mind or his m you don't know people i mean that's why you know in any divorce situation there's always the chance of reconciliation and so that until you're divorced you know that marital income is merely common i mean it is a legal decisions but you  cases what's going to happen so if burgess is an exception to drew's that it's really to be just something different than drew's it's not rational that that's the case but it doesn't fit with truth because you don't really know that they had disabled person would have maintained the same intent throughout the proceedings she could have changed her mind but you're allowed to the guardian is allowed in that case to proceed with the best interest so i think that should be it should be the same analysis here that that there's the best interest it can be i just want to go to a few quick things reference to the power of attorney act to me is irrelevant that there is no provision in the power of attorney for health care to allow for  solution yes to be irrelevant we're not talking about the power of attorney act and mr is this crisis is a statement that he there were repeated pleadings about he didn't want this is just not accurate he filed one motion to dismiss and even when he was after he filed the motion to dismiss he was still seeking money from her for us support and maintenance and to the question justice somebody who's abusing somebody to stay married and potentially inherit from the person because you can separate them i don't think that's right it's not necessary to deem it medical or not if somebody is abusive like they at you can say that they have bonds of matrimony is broke in done and there's no reason to maintain a fiction of marriage and there's no reason to insist on something less drastic than divorce divorce should be an option in the right circumstances only in the right circumstances when the trial court hearing the probate case is familiar with the parties and from the year with the situation it can rely on a guardian ad litum to make to assist could make their decision based on