## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Suprem e Court

Karbin v. Karbin , 2012 IL 112815

Caption in S upreme Court: J AN KARBI N, Appellee
, v

. M AR CI A L OVENSON KARBI N, by and throug h her guardia

n, Kar a Hibler , Appellant.

Docke t No. 112815

Filed October 4, 2012

Held ( Note : This syl l abus

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo r t er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) A gu ardia n has authority to seek permission from the court to file a marria g e dissoluti on petition on behalf of th e wa rd if such petition is found to be in the war d’s best intere s ts—remand for “best interests” hear ing and In re Marriage of Drews
, 115 I ll. 2d 201 (1986), overr uled.

Dec ision Under Review Appea l from the Appellate Court for the First District; hear d in that court

on ap p ea l fr om the C ircuit Court of C ook County
, the Hon. Wil liam S. Boyd, J udg e, pre siding.

J udg ment J udg ments reve rsed. Cause re manded.Counsel on

Appea l L eslie J. R osen, of Chica g o, for a ppellant.

J ordan B. Rifis and Andre a M. But t o n Ott, both of Oak Park, for appellee

.

Robert F. Har

ris, Charles Perez Golbert, Kass A. Plain a nd Mary Br igid Hayes, of the Offic e of the Cook County Public Guar dian, of Chicag o, for amicus curiaeCook County Public Guardian.

J ustices J USTI CE FREEMAN delivere d the judgme nt of the court, with opinion. Chief J ustice Kilbride a

nd J ustices Thomas, Garman, Karmeier
, Bur ke, and The is concurr ed in the judg ment and opinion.

OP INION

¶ 1 In this case we consider whether we should overr ule In re Marriage of Drews
, 115 I ll. 2d 201 (1986), which held that a plenar y guardia n lacks standing to institute dissoluti on of marria g e proce eding s on behalf of the war d. Fo r t h e re as o ns that follow, we believe a guardia n has the authority to seek permission from the court to file a dissoluti on petition on behalf of the wa rd if such pe tition i s found to be in the wa rd’s be st interests.

¶ 2 BA CKGROUND ¶ 3 J an and Marc ia Kar bin wer e marr i ed o n J u n e 2
, 1984. At that time, Marc ia had one daug hter, Kar a, whom J an adopted. They later had one child toge ther, J acob, who is mentally disabled and r esides in a f ull-time care fac ility

. ¶ 4 After a serious car acc ident in 1997, Marc ia s uffe red brain damag e and be came totally disabled, requiring full-time car e. J an was appointed plenar y guardia n of M a r c ia ’ s p e r s o n a

n d
estate. For the next seven y ear s, J an provided for Marc ia’s needs in their home. J an also

es t ab l ished an annuity for Marc ia’s lifetime car e out of the proce eds of a larg e personal injury settlement awa

rd re sulting fr om the car

acc ident. ¶ 5 By 2004, howeve r, J an could no longe r car e for Mar ci a du e t o h i s o wn Parkinson’s d i s ease, and transfe rre d his plenar y guardia nship of Marc ia to Kar a. At the time of thi s transfe r, the probate court a pproved a six -pag e settlement a g ree ment signe d by the par ties. This agree ment provided, inter alia
, for the distribution of funds upon the sale of the parties’ home, as well as the division of their joint ac co u n t s and persona l eff ects. After the
guardia nship transfer , Marc ia left I llinois to live with Kara in Ohio. ¶ 6 On November 9, 2007, afte r living apar t for near ly three y ear s, J an petitioned the circ uit
court of Cook County for dissoluti on of his marria g e. The petition alleg ed noncohabitation

-2-and irrec oncilable differ ences

. On M ay 19, 2008, Marc ia, throug h Kar a, filed a verifie d

counter petition, alleg ing the same ba ses as Jan. ¶ 7 Discover

y ensued. In 2009, Marc ia filed a motion to compel discovery and petitioned the court for interim attorney fee s and costs. Soon afte r, J an mo v ed for voluntary dismiss al of his petition for dissolut ion. J an allege d he had f iled the petition at Kar a’s r equest, with the understanding that “ea ch party would reta in the assets and liabiliti es in their own name.” J an further claimed it was never his wish to divorce Marc ia, but he had been willing to

acc ommodate Kar a’s wishes as Marc ia’s guardia n. J an further claimed he had provided Marc ia with a proposed marital settlement ag ree ment, which Marc ia ignor ed. J an also filed a petition for tempor ary

maintenanc e, interim attorne y fee s and costs. ¶ 8 I n re s p o n se, Marcia claimed that, based upon documents produced by J an, itappea red he was conce aling assets and income. Marc ia further claimed that other documents showed that J an had been romantica lly involved with another woman for some time, and that he and the woman wer e living toge ther in a residenc e which Marc ia believed J an purcha sed with marital funds. ¶ 9 The litigation cont i n u ed

. J an fi l ed a motion to dismiss Marc ia’s motion to compel discovery

. In his supporting aff idavit, J an stated that he believed that Marc ia did not wish to pursue dissolution of her mar riag e. ¶ 10 Marc ia moved to dismiss J an’s petition for temporar y maintenanc e. She attache d a copy of the war ranty deed and mortg ag e for the proper ty wher e J an and the woman resided, which stated that they owned the proper ty as a marrie d couple. Marc ia further alleg ed that J an had

numerous asse ts that he was attempting to conc eal. ¶ 11 On J uly 29, 2009, the circuit court gra nted J an’ s m o t i o n for voluntary dismiss al of his dissoluti on petition. The court order ed that, in light o f i t s d i s missal, the parties wer e to be

rea ligne d, with Marc ia as the petitioner and J an as the responde nt. The court also g rante d Marc ia’s motion to compel discovery

. ¶ 12 On September 15, 2009, Marc ia filed an emer g ency petition for a rule to show cause why J an should not be held in contempt for his failure to comply with the J uly 29 court order

. The
next day
, J an filed his o wn em er gency motion supported by an aff idavit which stated that Marc ia had told him that she did not wish to divorce h i m

. J an as k ed for appointment of a guardia n a d litem to deter mine whether Marc ia wished to continue with the dissoluti on proce eding s. ¶ 13 J an al s o fi l ed a re s p o n s e to Marc ia’s motion to dismiss his petition for tempor ary maintenanc e and interim attorney fee s. J an admitted he had resided with another woman, but denied they

wer e roma

ntically involved. J an cla imed the woman wa s his live-in car eg iver. He also denied that he knew the war ranty deed and the mortg ag e to the proper ty wher e they resided listed the woman as his wife. Although he admitted the couple had a joint chec king

acc ount, he explained that he was often unable to write and that the joint acc ount was simply

a conve nience

. ¶ 14 On October 7, 2009, the circ uit court ruled that J an’s motion to appoint a guardia n a d litem should be hear d in the court’s probate division

. J an t here afte r moved to dismiss Marc ia’s counter

petition, maintaining that pursuant to this court’s decision in In re Marriage

-3-o

f Drews
, 115 I ll. 2d 201 (1986), Kar a, as Marc ia’s plenar y guardia n, had no author i t y t o pursue a dissoluti on proce eding on Marc ia’s behalf

. Marc ia responde d by alleg ing that J an’s motives f or reque sting dismiss al of he r counte rpetition wer e “pure ly financ ial in nature, as J an would stand to inherit fr om Marcia ’s estate in the event of her de ath.” ¶ 15 On J anuar

y 5, 2010, the probate court held that Kar a had no standing to file a petition for dissoluti on of marriag e on Mar cia’ s behalf. T here afte r, on April 30, 2010, the j udg e in the domestic relations case ruled that under Drews
, “a gua rdian does not have the authority to litigate a dissoluti on of marria g e action as a petitioner” and g rante d J an’s motion to dismiss Marc ia’s counte rpetition. ¶ 16 Marc ia appealed. A majority of t he appellate court panel affirme d, holding that Drews controlled. 2011 I L Ap p (1st) 101545. In dissent, J ustice Cahill believed Drews to be fac tually distinguishable. Id. ¶ 34 (Cahill, J ., dissenting)

. ¶ 17 We allowed Marc ia’s petition for leave to appea l. I ll. S. Ct. R. 315 (ef f. Fe b. 26, 2010). We subsequently g rante d the Cook County public guardia n leave to submit an amicus curiae brief on Ma

rcia ’s beha lf. I ll. S. C t. R. 345 (eff. Sept. 20, 2010)

.

¶ 18 ANALYSI S 1 ¶ 19 We believe, initially
, that an overvie w of the Probate Act’s adult guardia nship provisions is helpful for a

complete unde rstandingof the issue be fore us. ¶ 20 Article 11a of the Probate Act provides for appointment of guardia ns for disabled adults. The Act define s a “disa

bled person” to inc lude anyone over the ag e of 18 who “is not f ully able to ma n a g e h is p e r son or estate” beca use of “mental deter ioration,” “phy sical incapa city ,” “mental illness,” or “deve lopmental disability .” 755 I L CS 5/11a-2 (West 2008). A court may find that a person is “disabled” if such disability has been established by clea r and convincing evidenc e. 755 I L CS 5/ 11a-3( a) ( West 2008). ¶ 21 On ce a disability is found, the court has differ ent options available under the Act

. A guardia n of the war d’s person is to be appointed whe n t h e wa rd “lac ks sufficie nt understanding or ca

p a c it y to ma k e or communicate responsible decisions conce rning the car e of his person.” Id

. A guardia n of the ward ’s estate is to be appointed when the war d is “unable to manag e his e state or financ ial aff airs.” Id

. A guardia

n of both the war d’s person and estate is to be appointed when the war d can manage n ei t h er persona l nor financ ial
matters. Id

. Whatever the court’s decision, the Probate Act direc ts that a guardia nship “shall be utiliz ed only as is ne cessa ry to pr omote the well-be ing of the disabled person, to protec t him from neg lect, exploi tation, or abuse, and to encour ag e developme n t o f h i s maxi mum

Aft er we grant ed Ma rc ia ’s pet it ion f o r l eave to app eal
, J an m oved to dis m is s Ma rc ia ’s 1
app eal on the bas is tha t she fa il ed to obt ai n per m is si on fr om the ci rc uit cou rt to pur sue thi s m at te r,

as re qui re d pur sua nt to sec ti on 11a

- 18( a- 5) (75 5 I LCS 5/1 1a- 18( a- 5) (W est 2008 )) of the Pro bat e Act of 1975 (Pr oba te Act ). T he r eco rd, howe ver, cont ai ns an orde r ent er ed b y the p rob at e c our t, d at ed Oct obe r 8, 2010
, whic h aut hor izes K ar a to pro cee d wit h the re te nti on of pro b o n o cou nse l to

comm enc e the app el la te pro ces s. T his ord er complie s wit h the re qui re m ent s of sec ti on 11a

- 18( a- 5). J an’ s motio n t o di smiss M ar ci a’ s appe al is th er ef ore den ie d.

-4-self-r eliance and independe nce

. ” 7 5 5 I L CS 5/11a-3(b) (West 2008). In all instances, the

guardia n is to act in the war d’s “best interests.” 755 I L CS 5/11a-17(e ) (West 2008). Finally
, in all matters, the provisions of the Act are to be “libera lly construed t o t h e end that
controve rsies and the rig hts of the parties may be speedily and finally deter mined.” 755 I L CS 5/1-9 (West 2008). ¶ 22 Her e, Kar a serve s both as guardia n of Marc ia’s person and her estate. Gene rally
, a per son serving in such dual capa cities is ref err ed to as a “plena

ry” guardia

n, meaning that she “ca

n make decisions about both the war d’s estate and the war d’s person.” Bla ck’s L aw Dictionary 776 (9th ed. 2009). Thus, Kar a is empower ed under the Probate Act to make d ec i s ions
reg arding Marc ia’s “support, car e, comfort, health, educat i o n and maintenanc e, and profe ssional service s as are appropriate” (755 I L CS 5/11a-17(a ) (West 2008)), as well as with respe ct t o t h e ca re and manag ement of her financ es (755 I L CS 5/11a-18(a ) (West 2008)). ¶ 23 I t was ag ainst this statutory backdr op that In re Marriage of Drews
, 1 1 5 I l l

. 2 d 2 0 1 (1986), was decide d. There
, we held that a plenar y guardia n of a disabled adult does not have standingto initi ate a

n action for the di ssolution of a w ard’ s marria g e. Id . at 203. That c ase involved a mot her who was named as pl enar y guardian fo r h er s o n afte r he had suffere d a head injury

. After the son was abandone d by his wife, his guardia n petitioned for dissoluti on of marr iag e, which the son’s wife oppose d. Id

. ¶ 24 In ruling ag ainst the guardia n, the court noted that a strong “majority rule” exis ted which held that “abse nt statutory authorization, a guardia n cannot institute an action, on behalf of

a wa rd, for the dissolution of the ward’ s marria g e.” Id. at 205. ¶ 25 The court looked to whether the Gene ral Assembly expli citly authorized the guardia n of

a p er s on to so act. Section 11a-17 of the Probate Act states that such a guardia n’s du t i es include providing for the war d’s “support, car e, comfort, health, education and maintenanc e, and profe ssional service s as are appropr iate.” 755 I L CS 5/11a-17(a ) (West 2008). The provision also direc ts the guardia n to assist the war d in “the development of maxi mum selfrelianc e and inde pendenc e.” (Interna l quotation marks omitted.) Drews , 115 I ll. 2d at 206. The co urt conclude d that nothing in section 11a-17 provided the expli cit authorization require d under the traditional rule for a guardia n to c ommence dissoluti on proce eding s. Id. ¶ 26 The court also looked to section 11a-18, which specifie s the duties of the guardia n of the estate, inc luding “ the ca

re, ma nag ement and investment of t he estate.” 755 I L CS 5/ 11a-18 (W es t 2 008). The court also found no expli cit authorization in that provision. Indeed, t h e court conclude d that when rea d toge ther, both sections 11a-17 and 11a-18 “grant only li mited standing related solely to matters direc tly bear ing on the manag ement of the war d’s estate.” Drews , 115 I ll. 2d at 206. ¶ 27 Marc ia argues t h at s o o n af t er Dr ew s was decide d, this court abandone d the strict construction of sections 11a-17 and 11a-18 that had been embra ced in that decision. Be cause that construction is inconsistent with our more rec ent interpre tation of the same provisions, Marc ia sug g ests that the usual stare dec is is conce rns are less compelling in this case and should not serve to pre vent this court from ove rruling Drews

. ¶ 28 The stare decisis doctrine expresses the policy of the c ourts to sta nd by prec edents and

-5-not to disturb settled points. People v. Colon
, 225 I ll. 2d 125, 145 (2007); Vitro v. Mihelcic
,

209 I ll. 2d 76, 81 (2004); W akulich v. Mraz
, 203 I ll. 2d 223, 230 (2003). The doctrine is not

so rig id, howeve r, that it will preve nt a court from o v er ru l ing prior decisions when g ood

cause exis ts to do so. People v. Sharpe
, 216 I ll. 2d 481, 520 (2005); Colon
, 225 I ll. 2d at 146. ¶ 29 One of th e t en et s o f stare decisis is that the law will not chang e err atically
, but will develop in a principled, intelligent manner

. See, e.g. , Colon
, 225 I ll. 2d at 146. As we explain below, howeve r, our case law conce rning the construction of sections 11a-17 and 11a-18 has not been c onsistent with the narrow c onstruction g iven to those provisions in Drews

. ¶ 30 As noted, Drews held that the guardia nship provisions of the Probate Act “gra n t only limit ed standing related solely to matters direc tly bear ing on the manag ement of the war d’s estate.” Drews
, 115 I ll. 2d at 206. Neve rtheless, this court some three y ear s later abandone d the notion that decisions which fall outside this limit ed are a must be expressly authorized by the leg islature. In In re Estate of Longeway
, 133 I ll. 2 d 3 3
, 4 5 -4 6 (1989), this court rea d section 11a- 17 expansively to authorize a plenary guardia n to make the de cision on behalf

o f t h e wa rd reg arding the use of life-sustaining measure s. The following y ear , this court

rea ffirme d the rea soning of Longeway in In re Estate of Gree nspan , 137 I ll. 2d 1, 16 (1990). In both case s, the court reje cted arguments that under Drews
, the Probate Act did not provide

a gu ardian with the authority to consent to remova l of life support. In siding wi t h t h e guardia n, this court offe red no explanation as to why the provisions of the Probate Act which

wer e narr owly construed in Drews wer e now broadly viewed as empower ing a guardia n “to perf orm an act which is within the implied authority g rante d by the Probate Act.” Longeway
, 133 I ll. 2d at 46; Gree nspan , 137 I ll. 2d at 13. The court thus relied on the notion of “implied authority” rathe r than requiring only expli cit authority in d e termining the power of a guardia n to act under

the Probate A ct. ¶ 31 This court’s next opportunity t o i n t erp re t t h es e s ame guardia nship provisions of the Prob at e Ac t ca m e in In re Marriage of Burgess
, 189 I ll. 2d 270 (2000). There
, afte r the husband had filed a petition for dissoluti on, he was adjudicate d to be disabled, and his sister

was appointed h is plenar y guardia n. Id

. at 271. The wife then moved to dismiss the dissoluti on action pursuant to Drews

. Id

. By way of a cer tified question, the appellate court, relying on Drews
, held that the guardia n could not maintain the husband’s action. Id

. at 271- 72. ¶ 32 This court, howeve r, found Drews fac tually distinguishable on the basis that in that case the guardia

n petitioned to institute the dissoluti on action on the war d’s behalf
, wher eas in Burgess the guardia

n mere ly continued a dissoluti on action previously begun by a war d prior
to incapa city

. Id

. at 271. Notwithstanding the fac tual distinction, the court’s analy sis did not end there
, but went further

. Commenting o n the broad power s g iven to a guardia n under sections 11a-17 and 11a-18 of the Probate Ac t , t he court construed these provisions in a

manner opposite the construction aff orded the identical provisions in Dr ew s

. Rather than

acc epting Drews ’ interpre tation of the power s confe rre d to guardia ns under the Probate Act as beingexclusive or limit ing, the court interpre ted those power s broadly
, concluding that, althoug h not specific ally stated in the statute, a guardia n’s authority to maintain a dissoluti on action on behalf of a war d “may be implied” from these provisions. Id

. at 277. Wit h respe ct to section 11a-17( a), the court deter mined that the statute provided a “broa d descr iption of

-6-a guardia n’s power s” ( id. at 2 7 8 ), from which the authority of a guardia n to continue a dissoluti on action on behalf of a war d may be implied. In direc t contra st to Drews
, the court acknow ledg ed that “[t] he s t at u s o f a war d’s marria g e impacts the war d’s support, car e, comfort, and development of self-r eliance and independence, ” which we held were “are as in wh i ch a gu ar d ian may be empower ed to act under [section 11a-17](a) .” Id. at 278. In

rec og nizi ng that the status of a war d ’s m ar riag e was an are a that conce rned the war d’s person, the court relied on both Longeway and Gree nspan , which held that guardia ns have the authority to “make such decisions under section 11a-17 even though the power to do so is not specific ally enunciated.” Id

. at 273 (citing In re Estate of Longeway
, 133 I ll. 2d at 45- 46, and In re Estate of Gre enspan , 137 I ll. 2d at 16-18). ¶ 33 Since Burgess
, our appellate court has also applied the “implied authority” construc tion of the guardia

nship statute rathe r than Drews ’ narr ow construction. Fo r ex am p le, in In re Estate of K.E.J.
, 382 I ll. App. 3d 401 (2008), the court held th at u n der the provisions of section11a- 17(a) of the Probate Act, a guardia n may seek to have a war d underg o involuntary sterilization. ¶ 34 This revie w of the case law conce rning t h e co n s t ru ct i o n o f these provisions of the Pr obate Act confirms that the court has moved awa y from requiring expli cit g rants of
statutor y authority in order for a guardia n to act, instead allowing “implied authority” to suffice

. The decisions, as noted, do not explain what cause d the court to depar t from the view embra ced in Drews

. This survey further reve als a shift in the court’s views reg arding the eff ect of the status of the war d’s marria g e on the war d. In Burgess
, we rec ognized the direc t impact that status has on numerous persona l aspec ts of the war d, including her support, car e, comfort, and development of self-r eliance and independe nce, all which trig g er the authority of the guardia

n to act on the war d’s behalf

. Burgess thus contra dicted Drews ’ view that the
guardia n was empowere d only

to act on beha lf of the ward in matters of the ward’s estate. Ag ain, the decisions supply no explanation for this shift. Thus, we ag ree with Marc ia that inconsistencies e x ist and that no principled re ason for these inconsistenc ies is appar ent. ¶ 35 J an concede s that the case l aw interpreting the guar dian’s pow er s relating to decisions

o f a p er s onal nature is inconsistent. He asser ts, howeve r, there are leg itimate rea sons that support maintaining the traditional rule that a plenar y guardia n may not bring dissoluti on proce eding s on behalf of the war d. He argues that a guardia n can never be sure that divorce confor ms to the disabled spouse’s true wish es an d i t is for this rea son alone that Drews should be rea ffirme d. ¶ 36 Al t h o u gh Drews cited to I llinois ’ rec og nition of the “majority rule,” the court did not speak t o the rule’s orig in or the rationale underpinning it. Rather, the court cited with
approva l sever al decisions from other states, two of which best express the rule’s rationale

. In W ood v. Beard
, 107 So. 2d 198 (F la. Dist. Ct. App. 1958), th e court explained that the majority rule “is deeply embedde d in the conce pt that a marria g e rela tionship is exclusively
persona l and that it may be dissolved only by the voluntary consent and the compre hending exercise of the will of an injured spouse.” (Emphasis added.) Id

. at 199. The court provided further detail for the basis of the rule : “No mat t er what the nature and the number of g rievous wrong s committed by one

-7-s p ouse ag ainst another
, these of themselves cannot wre ak the destruction of th e marria g e status. The marital wrong s cre ate only the basis for the divorce action. I t is the will and the decision of the injured one that invokes the judicial proce ss. *** [T] here i s wo v en into the marria g e fabr ic, reg ardle ss of the marital g rieva nce, the rig ht by the ag g rieve d spou s e t o fo rgive or condone ***. For condonation to be eff ecte d, since the marria g e status is so completely persona l, the fre e exercise of the injured spouse’s will and the prer equisite of compre hension are require d.” Id

. at 199- 200. ¶ 37 Simi larly
, in Mohrmann v. K o b
, 5 1 N.E.2d 921 (N.Y. 1943), the New York Court of Appea ls explained that the m ajority rule wa s g rounded in the volit ion of t he parties to end the marria g e. Us i n g as an example an instance wher e one spouse is unfaithful, the court stated that it is a “matter of choice by the innocent party *** whether the judicial proce ss will be set in motion to bring about a sever ance of t he marriag e ti e because of such infidelity .” Id

. at 924. The court observe d that the injured spouse may choose to rema in in the marria g e “bec ause of rel i gi o u s aff iliation or for other rea sons which satisfy the demands of g ood conscie nce.” Id

. Acc ording ly
, wh ere the injured spouse is incompetent and cannot intelligently make that choice
, the rule provides that no other person—including a guardia n—can exercise that option. Id

. at 926 (Thac her, J
., dissenting, joined by Rippey
, J .). ¶ 38 Thus, beca

use the decision t o d i v o rc e wa s v i ew ed as a uniquely persona l matter, oftentimes involving relig ious and moral prec epts, courts wer e reluc tant to have others speak for an incompetent adult in such situation s

. The rule ref lected the view that “mar riag e is

sacr ed and that only the m o s t s erious of marital offe nses should be g rounds for divorce .” Kurt X. Metzmeier, Note, The Power of an Incom petent Adu l t to Petition for Divorce Through a Guardian or N ext Friend
, 33 U. L ouisvill e J

. Fam. L

. 949, 951-52 (1995) . This view also we nt hand-in-ha nd with the policy

that endinga mar

riag e re quired a

leg al injury in which the court would assig n blame or fault to a s p ec i fi c s p o u s e. The rule, there fore
, comported with those states in which the sole g rounds for divorce laws wer e predic ated upon

conce pts of fault and injury
, as was the case in I llinois prior to the enac tment of the no-fa ult provisions of the I llinois Marr iag e and Dissolution of Marr iag e Act. In such states, only the injured spouse c ould seek a divorce

. ¶ 39 Wit h the enactment of the no-fault provisions in 1984, the Genera l Assembly signa led a shift in the policy reg arding the g rounds which must existin order f or a dissolution to be
g rante d. The passag e of the no-fa ult provisions ref

lected a dissatisfaction with the traditional require ments of proving fault to obtain a divorce

. Indeed, the comments of the leg islation’s
sponsor at the time reve al that the conce pt of fault in divorce actions had led to a wide varie ty of problems, including parties “perj u r[ i n g] themselves on the stand in order to find fault
g rounds, when in fac t, they just want to g et out [of the marria g e].” See 83d I ll. Gen. Assem., Senate Proc eeding s, May 27, 1983, at 226 (statements of S enator Marovitz). Acc ordingto the sponsor, I llinois ’ enac tment of no-fa ult divorce allowed people “to part with dignity .” Id

. at 226-27. ¶ 40 Although Drews was decide d in 1986, our revie w of the appellate court’s decision in that

case reve als that the dissoluti on petition at issue was filed prior to the enac tment of the new no-fa ult law. See In re Marriage of Drews
, 139 I ll. App. 3d 763, 765-66 (1985); see also 750

-8-I L CS 5/401(a)( 2) (West 2008) (re flec ting that the no-fa ult amendment beca

me eff ective J uly 1, 1984). Thus, the cou rt i n Drews did not have to rec oncile what impact, if any , the new leg islation had on the continued a pplication of the tra ditional rule. ¶ 41 That question, howeve r, is square ly prese nted in this case

. I llinois ’ rec o gn it io n o f n o

- f a ult divorce place s it among st those jurisdictions which, while acknow ledg ing the state’s interest in the stability of marria g e, eliminated “the tr ad i t i o n al concept that divorce is a reme dy
g rante d to an innocent spouse.” Uniform Marr iag e and Divorc e Ac t , P ref atory Note, 9A U.L .A. 147, 148 (1987); see also Mark Schwarz, Note, The Marriage Trap: How Guardianship Divorce B a n s A b et Spousal Abuse
, 13 J .L

. & Fam. Stud. 187, 191 (2011) (noting the “broad social destig matizati o n o f d ivorce ” accomplished t hroug h the adoption of “no- fault statutes and/or va stly broade r g rounds for divor ce” ). ¶ 42 Wit h the concept of “injury” remove d from divorce in I llin o i s , i t i s difficult for us to

acc ept the view that the dec ision to divorce is qua litatively differ ent from any other deeply
persona l decision, such as the decision to ref use life-support treatment or the decision to underg o involuntary s t er iliz ation. Eac h of t hese latter decisions can rare ly be undone. The
same cannot be said for the decision t o divorce —if the di sabled adul t re gains competenc y and disag ree s with the guardia n’s decision, rema

rriag e to the former spouse may be possible. T h u s , there is no rea son why the guardia n should not be allowed to use the substi t u t ed

judgme nt provisions found in section 11a-17( e) of the Probate Act to m ak e al l ty pes of uniquely persona l decisions t hat are in the wa rds’s best intere sts, including the decision t o seek a dissoluti on of marria g e. Under our moder n l eg al framework, “[i] f one party to a marria g e need not be ‘at fault,’ and divorce is arguably more ‘ac cepta ble’ in Am er i can society
, it is not inconce ivable that elder ly
, mentally incapa citated, or mentally ill individuals could want or need to institute divorce proce eding s, wher e historically their wants or needs

wer e leg ally irrele vant or dismiss ed as unasce rtainable .” ( E mp h a s e s in orig inal.) Diane Snow Mills, C omment, “But I L ove W hat’s-His-Name”: I

nherent Dange rs in the Changing Role of the Guardian in Divorce Actions on Behalfof Incom petents , 16 J

. Am. Aca d. Matrimonial L aw, 527, 528- 29 (2000). ¶ 43 I n l ight of the above, we cannot ag ree with J an that policy considerations regar d i n g divorce compel our rea ffirmation of Drews

. As is appar ent, the traditional rule espoused in Drews is no longe r consistent with curr ent I l l i n o i s policy on divorce as ref lected in the I llinois Marr iag e and D issoluti on of Mar riag e Ac t. ¶ 44 We a lso note that the continued application of the traditional rule r esults in a n inequity
to disabled spouses that conflicts with the policy underly ing our Probate Act. Under the traditional rule, a disabled spouse unde r a guardia nship “ is he lpless to chang e the situation if his or her competent spouse does not want a divorce

. The incompetent, vulnera ble spouse is trappe d in an unwanted, potentially abusive, marria g e.” Schwarz, supra , at 1 8 8. As another
commenta t o r has observe d: “To provide a mentally competent spouse with [t he power to b ri n g a divorce action ag ainst an incompetent spouse] in the absenc e of a corr espond i n g power to the incompetent to seek divorce (throug h a guardia n) is to g rant the competent spouse ‘absolu t e, final control over the marria g e,’ leaving ‘an incompetent spouse completely at the merc y of a competent spouse’ to the marria g e contra ct. Principles of equity demand equal treatment and equal acc ess to the courts for all individuals, not just those who

-9-are sane ***.” Mills, supra , at 548-49.

¶ 45 Acc ording ly
, if we wer e to ag ree with J an and rea ffirm Drews
, we would be allowingthe law to u n fa i rl y trea

t incompetent spouses, leaving them at the complete merc y of the competent spouse without considera tion of their best interests. This situation stands in direc t contravention of the p olicy of our state, which provides that once a person is found to be “disabled” under our

Probate Ac t, he or she is view ed as “ ‘a f avore d person in the e y es of the law’ and is entitled to vigilant protec tion.” In re Mark W

. , 228 I ll. 2d 365, 374-75 (2008) (quoting In r e E

s t a t e of W

ellman
, 174 I ll. 2d 335, 348 (1996))

. Indeed, guardia nship is intended to “promote the well-be ing of the disabled person, [and] to protec t him from
neg lect, exploi tation, or abuse.” 755 I L CS 5/11a-3(b) (West 2008). I t is for these rea sons that

we disag ree with J an’s contention that Drews comports with curr ent I llinois policy ref lected in the Probate Ac t conce rningdisabled spouses. ¶ 46 We note that, in s o h o l d i n g, we re j ec t J an’s asser

tion that the Gene ral Asse mbly ’s amendment in 2000 of section 11a-17 indicates the leg islature’s reje ction of the notion that

a guardia n may also institute dissoluti on proce eding s on the war d’s behalf

. J an contends that 2 this amendment indicates that the narr ow construction g iven t o section 11a-17 in Drews comports wit h the l eg islature’s intent that implied authority under the p ro v i s i o n s does not exis t. 3 ¶ 47 J an o v er l o o k s t h at section 11a-17 was amende d by the Gene ral Assembly befor e our decision in Burgess was announce d. As noted, Burgess broadly construed the provisions of section 11a-17. I f the leg islature had a disag ree ment with our st at u t o ry construction in Burgess
, it could have there afte r amende d the statute in the manner that J an sug g ests. I t did

n o t

. M o reover, in the time since Burgess was announce d, In re K.E.J. was decide d by t h e appellate court. In that decision, the court used the notion of sect i o n 11a-17’ s implied authority to provide a guardia n with t h e p o we r t o reque st sterilization of the war d. In the
y ear s that foll o we d
, t h e leg islature has not taken action to indicate its disapproval of the

We not e tha t dur ing the bri ef ing of thi s m at te r, J a n f

i l e d a m oti on, pur sua nt to Supr eme 2 Cour t Rule 341( h)( 7), to st ri ke cer ta in p a ra graphs of Ma rc ia ’s re ply bri ef whic h re la te d to his le gisla ti ve ar gum ent

. T he cha ll enged par agraph s in Ma rc ia ’s bri ef re fe re nce d the n- pen din g Sena te Bil l 2547
, whic h pro pos ed to amend sec ti on 11a

- 17 of the Pro bat e Act to al low a guardi an to fi le a dis sol uti on pet it ion and the ci rc uit cou rt to det er m ine
, on a cas e- by- cas e bas is
, whet her dis sol uti on of m ar ri age is in the bes t int er est s of the war d. Ma rc ia al so at ta che d a cop y of the pro pos ed sta tut e to her bri ef

. We too k J an’ s m oti on to st ri ke wit h thi s cas e and now den y it

. Rule 341( h)( 7) pro vides tha t poi nts not ar gued in the app el la nt’ s ini ti al bri ef sha ll not be ra is ed in the re ply bri ef

. However, Ma rc ia ’s re fe re nce to the pro pos ed le gisla ti on was onl y in re spo nse to J an’ s ar gum ent ra is ed in his
app el le e’ s bri ef

. Fur the r, thi s cou rt m ay ta ke j udi ci al not ic e of the fa ct tha t le gisla ti on was pen din g at th e t ime of b ri ef

ing.

T he amendm ent pro vided the guardi an of the per son the aut hor it y to “maint ai n” a 3 dis sol uti on act ion “[ i] f the war d fi le d a pet it ion for dis sol uti on of m ar ri age *** bef ore the war d was adj udi cat ed adi sab le d pe rs on.” 755 I LCS 5/ 11a

- 17( a- 5) (W est200 8).

-10-judiciary ’s broad construction. Indeed, it codified the K.E.J. decision, just as it codified our 4 decision in Longeway

. Acc ording ly
, the leg islature acquie sced in this broad interpre tation. 5 See R

. D. Ma s o n r

y, Inc. v. Industrial Comm’n
, 215 I ll. 2d 397, 404 (2005) (whe re the leg islature chooses not to amend terms o f a statute afte r judicial construction, it will be presumed that it has acquiesc ed in the cour t’s statement of leg islative intent). ¶ 48 We there fore reject an y n o t ion that policy
, as reflec ted i n either the Probate Act or the Marr iag e and Dissolution of Mar ri age Ac t, compels the continued application of the traditio n al ru le cited in Drews

. To do otherwise would mean that a guardia n would be
preve nted from seeking permission from the court to bring an action for dissoluti on on behalf of an incompetent war d, even if the war d was in dang er as a result of being in the marria g e. Given that the purpose of the Probate Act is to protect the w ard, w e would contravene that
purpose if we wer e to prohibit the exercise of the guardia n’s power in the best interest of the

war d while endorsing a power imbalance ag ainst the incompetent spouse which could result in phy sical or emotional abuse, financ ial exploi tation, or neg lect of the incompetent spouse by the “compe tent” partne r. By construing the Probate Act to prohibit a guardia n from being able to seek permission from the court to bring a dissoluti on action on behalf of the war d, we would be improperly car

ving an exception to the broad power s of a guardia n set forth by the Gene ral Assembly in the Probate Act. In our view, it is only by g iving these provisions their full meaning that we can acc omplish the leg i s l at u re ’s intent to protec t the vulnera ble members of

our society

and to ensure their saf

ety

. ¶ 49 Whether a guardia n is initiating, responding to, or co n t i n u ing a dissoluti on action, the interests of the war d that may requ ir e p r o tection rema in constant, reg ardle ss of the proce dural posture of the case

. Be cause under the Probate Act the guardia n must alway s act in the best interests of the war d, when a guardia n decide s that those best interests require that t he marria g e be dissolved, the guardia n must have the power to take appropr iate leg al action to

acc omplish that end. We there fore find no compelling rea son to tr eat a guardia n’s decision
to seek court permission to institute a dissoluti on action on behalf of a war d any differ ently from the multit ude of other innately persona l decisions which may be made by guardia ns on behalf of their war ds, including unde rg oing involuntary sterilization or ending life-support

measure s. All of these decisions made by guardia ns without knowing a war d’s wi shes are just as persona l—if not more so—than the decision to seek a divorce

. All also may implicate the war d’s moral and relig ious beliefs. The provisions of our Probate Act cannot be so arbitra ry as to empower a plenar

y guardia n to make decisions with respe ct to all these matters except for the decision to end a marria g e. Either the guardia n can act in the best interests of the war d for a ll personal matter s, or for none at all. ¶ 50 This ensure s that the most vulnera ble members of our society are aff orded fundame ntal fairne ss, equal protec tion of the laws (U.S. Const., amend. XIV; I ll. Const. 1970, art. I
, § 2) and equal acc ess to the courts (U.S. Const., amend. I ; I ll. Const. 1970, art. I
, § 12). There fore
,

755 I LCS 5/ 11a

- 17.1 (W est 201 0). 4

755 I LCS 40/ 1 et

se q. (W est 200 8). 5

-11-In re M arriage of Drews , 115 I ll. 2d 201 (1986), is here by overr uled. ¶ 51 By overr

uling Drews
, we alig n I llinois with those states which allow a guardia n to se ek
court permission to bring a dissoluti on action on behalf of a war d wher e not expressly barr ed

or allowed by statute. See Schwar z, supra , at 188. We find persua sive opinions fr om othe r jurisdictions which have so held. See, e.g ., In re Marriage of Ruvalcaba
, 850 P.2d 674 (Ariz. Ct. App. 1993); Nelson v. Nelson
, 878 P.2d 335 (N.M. Ct. Ap p

. 1 9 9 4 ); In re Marriage of Ballard
, 762 P.2d 1051 (Or. Ct. App. 1988); W ahlenmaier v. W

ahlenmaier
, 750 S.W .2d 837 (Tex. Ct. App. 1988); In re Marriage of Gannon
, 702 P.2d 465 (Wash. 1985) ( en banc ); see also David E

. R i gn ey , Annotation, Power of Incom petent Spouse’s Guardian or Represe ntative to Sue for Granting or Vacation of Divorce or Annulment of Marriage, or to MakeCompromise or Settlement in Such Suit
, 32 A.L .R.5th 673, § 3(a) (1995) ( collecting

case s). ¶ 52 We there fore reve rse the judgme nts of both the circ uit and appellate courts and hold that Marc ia’s petition should b e al l o we d t o be filed. On rema nd, we direc t the circ uit court to hold a “best interests” hearing (see 755 I L CS 5/11a-17(e ) (West 2008) (setting forth fac tors to be considere d in deter

mining the best interests of the war d)) in order to deter mine whether it is in Marc ia’s best interests to seek the dissoluti on of her marria g e. In this reg ard, we note that under section 11a- 17, the ac tions of the guardia n are alway s subject to the supervision of the circ uit court. 755 I L CS 5/11a-17(a ) (West 1996); Burgess
, 189 I ll. 2d at 281. Indeed,

a “guardia

n only acts as the hand of the court and is at al l t i m es s ub j ec t to the court’s direc tion in the manner in which the guardia n p rovi des for the car e and support of the disabled per son.” In re W ellman , 174 I ll. 2d at 347. ¶ 53 In our view, the circ uit court’s assessment o f t h e p et i t i o n fo r d i ssolution filed by a guardia n on behalf of a war d pursuant to the standards set forth in section 11a-17( e) provides the neede d proce dural and substantive safe guards to ensure that the best interests of the war d

are achie ved while preve nting a guardia n from pursuing a dissoluti on of marria g e for his or her own financ ial benef

it, or beca use of the guardia

n’s persona l antipathy toward the war d’s
spouse. To further safe guard the interests of all parties involved, we ag ree with Marc ia that the guardia

n must satisfy a clea

r and convincing burden of proof that the dissoluti on is in the

war d’s best interests. We believe a heig htened burden is appropr iate becau s e “[c]ases involving the dissoluti on of an incompetent spouse’s marria g e *** prese nt issues involving
persona l interest s m ore complex and important than those ty pically prese nted in a civil lawsuit.” Ruvalcaba
, 85 0 P

. 2 d at 683; cf. In re Longeway
, 133 I ll. 2d at 51 (re quiring
guardia n to adduce clea

r and convincing evidenc e in deter mining a war d’s intent reg arding ref usal or withdrawa l of artificia l sustenance ); In re Estate of K.E.J.
, 382 I ll. App. 3d at 415 (cle ar and convincing standard of proof require d for guardia n to establish sterilization is in

war d’s best intere s t s beca use of the fundame ntal rig hts involved and to preve nt abuse of judicial authority

).

¶ 54 CONCLUSI ON ¶ 55 For the fore g oing rea sons, w e reve rse the judgme nts of the appellate and circ uit courts. This cause is rema

nded to the circ uit court for further proce ed i n gs co nsistent with this

-12-opinion.

¶ 56 J udg ments reve rsed. ¶ 57 Cause re manded.

-13-