ILLINOIS OFFICIAL REPORTS

Supreme Court

Karbin v. Karbin, 2012 IL 112815

Caption in Supreme

Court:

JAN KARBIN, Appellee, v. MARCIA LOVENSON KARBIN, by and

through her guardian, Kara Hibler, Appellant.

 

Docket No. 112815

Filed October 4, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

A guardian has authority to seek permission from the court to file a

marriage dissolution petition on behalf of the ward if such petition is

found to be in the ward’s best interests—remand for “best interests”

hearing and In re Marriage of Drews, 115 Ill. 2d 201 (1986), overruled.

Decision Under 

Review

Appeal from the Appellate Court for the First District; heard in that court

on appeal from the Circuit Court of Cook County, the Hon. William S.

Boyd, Judge, presiding.

Judgment Judgments reversed.

Cause remanded.
Counsel on

Appeal

Leslie J. Rosen, of Chicago, for appellant.

Jordan B. Rifis and Andrea M. Button Ott, both of Oak Park, for

appellee.

Robert F. Harris, Charles Perez Golbert, Kass A. Plain and Mary Brigid

Hayes, of the Office of the Cook CountyPublic Guardian, of Chicago, for

amicus curiae Cook County Public Guardian.

Justices JUSTICE FREEMAN delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Thomas, Garman, Karmeier, Burke,

and Theis concurred in the judgment and opinion.

OPINION

¶ 1 In this case we consider whether we should overrule In re Marriage of Drews, 115 Ill.

2d 201 (1986), which held that a plenary guardian lacks standing to institute dissolution of

marriage proceedings on behalf of the ward. For the reasons that follow, we believe a

guardian has the authority to seek permission from the court to file a dissolution petition on

behalf of the ward if such petition is found to be in the ward’s best interests.

¶ 2 BACKGROUND

¶ 3 Jan and Marcia Karbin were married on June 2, 1984. At that time, Marcia had one

daughter, Kara, whom Jan adopted. They later had one child together, Jacob, who is mentally

disabled and resides in a full-time care facility.

¶ 4 After a serious car accident in 1997, Marcia suffered brain damage and became totally

disabled, requiring full-time care. Jan was appointed plenaryguardian ofMarcia’s person and

estate. For the next seven years, Jan provided for Marcia’s needs in their home. Jan also

established an annuity for Marcia’s lifetime care out of the proceeds of a large personal

injury settlement award resulting from the car accident.

¶ 5 By 2004, however, Jan could no longer care for Marcia due to his own Parkinson’s

disease, and transferred his plenary guardianship of Marcia to Kara. At the time of this

transfer, the probate court approved a six-page settlement agreement signed by the parties.

This agreement provided, inter alia, for the distribution of funds upon the sale of the parties’

home, as well as the division of their joint accounts and personal effects. After the

guardianship transfer, Marcia left Illinois to live with Kara in Ohio.

¶ 6 On November 9, 2007, after living apart for nearly three years, Jan petitioned the circuit

court of Cook County for dissolution of his marriage. The petition alleged noncohabitation

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and irreconcilable differences. On May 19, 2008, Marcia, through Kara, filed a verified

counterpetition, alleging the same bases as Jan.

¶ 7 Discovery ensued. In 2009, Marcia filed a motion to compel discovery and petitioned the

court for interim attorney fees and costs. Soon after, Jan moved for voluntary dismissal of

his petition for dissolution. Jan alleged he had filed the petition at Kara’s request, with the

understanding that “each party would retain the assets and liabilities in their own name.” Jan

further claimed it was never his wish to divorce Marcia, but he had been willing to

accommodate Kara’s wishes as Marcia’s guardian. Jan further claimed he had provided

Marcia with a proposed marital settlement agreement, which Marcia ignored. Jan also filed

a petition for temporary maintenance, interim attorney fees and costs.

¶ 8 In response, Marcia claimed that, based upon documents produced by Jan, it appeared

he was concealing assets and income. Marcia further claimed that other documents showed

that Jan had been romantically involved with another woman for some time, and that he and

the woman were living together in a residence which Marcia believed Jan purchased with

marital funds.

¶ 9 The litigation continued. Jan filed a motion to dismiss Marcia’s motion to compel

discovery. In his supporting affidavit, Jan stated that he believed that Marcia did not wish to

pursue dissolution of her marriage.

¶ 10 Marcia moved to dismiss Jan’s petition for temporary maintenance. She attached a copy

of the warranty deed and mortgage for the propertywhere Jan and the woman resided, which

stated that they owned the property as a married couple. Marcia further alleged that Jan had

numerous assets that he was attempting to conceal.

¶ 11 On July 29, 2009, the circuit court granted Jan’s motion for voluntary dismissal of his

dissolution petition. The court ordered that, in light of its dismissal, the parties were to be

realigned, with Marcia as the petitioner and Jan as the respondent. The court also granted

Marcia’s motion to compel discovery.

¶ 12 On September 15, 2009, Marcia filed an emergency petition for a rule to show cause why

Jan should not be held in contempt for his failure to comply with the July 29 court order. The

next day, Jan filed his own emergency motion supported by an affidavit which stated that

Marcia had told him that she did not wish to divorce him. Jan asked for appointment of a

guardian ad litem to determine whether Marcia wished to continue with the dissolution

proceedings.

¶ 13 Jan also filed a response to Marcia’s motion to dismiss his petition for temporary

maintenance and interim attorney fees. Jan admitted he had resided with another woman, but

denied they were romantically involved. Jan claimed the woman was his live-in caregiver.

He also denied that he knew the warranty deed and the mortgage to the property where they

resided listed the woman as his wife. Although he admitted the couple had a joint checking

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

a convenience.

¶ 14 On October 7, 2009, the circuit court ruled that Jan’s motion to appoint a guardian ad

litem should be heard in the court’s probate division. Jan thereafter moved to dismiss

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

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of Drews, 115 Ill. 2d 201 (1986), Kara, as Marcia’s plenary guardian, had no authority to

pursue a dissolution proceeding on Marcia’s behalf. Marcia responded by alleging that Jan’s

motives for requesting dismissal of her counterpetition were “purely financial in nature, as

Jan would stand to inherit from Marcia’s estate in the event of her death.”

¶ 15 On January 5, 2010, the probate court held that Kara had no standing to file a petition for

dissolution of marriage on Marcia’s behalf. Thereafter, on April 30, 2010, the judge in the

domestic relations case ruled that under Drews, “a guardian does not have the authority to

litigate a dissolution of marriage action as a petitioner” and granted Jan’s motion to dismiss

Marcia’s counterpetition.

¶ 16 Marcia appealed. A majority of the appellate court panel affirmed, holding that Drews

controlled. 2011 IL App (1st) 101545. In dissent, Justice Cahill believed Drews to be

factually distinguishable. Id. ¶ 34 (Cahill, J., dissenting).

¶ 17 We allowed Marcia’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).

We subsequently granted the Cook County public guardian leave to submit an amicus curiae

brief on Marcia’s behalf. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶ 18 ANALYSIS

1

¶ 19 We believe, initially, that an overview of the Probate Act’s adult guardianship provisions

is helpful for a complete understanding of the issue before us.

¶ 20 Article 11a of the Probate Act provides for appointment of guardians for disabled adults.

The Act defines a “disabled person” to include anyone over the age of 18 who “is not fully

able to manage his person or estate” because of “mental deterioration,” “physical incapacity,”

“mental illness,” or “developmental disability.” 755 ILCS 5/11a-2 (West 2008). A court may

find that a person is “disabled” if such disability has been established by clear and convincing

evidence. 755 ILCS 5/11a-3(a) (West 2008).

¶ 21 Once a disability is found, the court has different options available under the Act. A

guardian of the ward’s person is to be appointed when the ward “lacks sufficient

understanding or capacitytomake or communicate responsible decisions concerning the care

of his person.” Id. A guardian of the ward’s estate is to be appointed when the ward is

“unable to manage his estate or financial affairs.” Id. A guardian of both the ward’s person

and estate is to be appointed when the ward can manage neither personal nor financial

matters. Id. Whatever the court’s decision, the Probate Act directs that a guardianship “shall

be utilized only as is necessary to promote the well-being of the disabled person, to protect

him from neglect, exploitation, or abuse, and to encourage development of his maximum

After we granted Marcia’s petition for leave to appeal, Jan moved to dismiss Marcia’s 1

appeal on the basis that she failed to obtain permission from the circuit court to pursue this matter,

as required pursuant to section 11a-18(a-5) (755 ILCS 5/11a-18(a-5) (West 2008)) of the Probate Act

of 1975 (Probate Act). The record, however, contains an order entered by the probate court, dated

October 8, 2010, which authorizes Kara to proceed with the retention of pro bono counsel to

commence the appellate process. This order complies with the requirements of section 11a-18(a-5).

Jan’s motion to dismiss Marcia’s appeal is therefore denied.

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self-reliance and independence.” 755 ILCS 5/11a-3(b) (West 2008). In all instances, the

guardian is to act in the ward’s “best interests.” 755 ILCS 5/11a-17(e) (West 2008). Finally,

in all matters, the provisions of the Act are to be “liberally construed to the end that

controversies and the rights of the parties may be speedilyand finally determined.” 755 ILCS

5/1-9 (West 2008).

¶ 22 Here, Kara serves both as guardian of Marcia’s person and her estate. Generally, a person

serving in such dual capacities is referred to as a “plenary” guardian, meaning that she “can

make decisions about both the ward’s estate and the ward’s person.”Black’s Law Dictionary

776 (9th ed. 2009). Thus, Kara is empowered under the Probate Act to make decisions

regarding Marcia’s “support, care, comfort, health, education and maintenance, and

professional services as are appropriate” (755 ILCS 5/11a-17(a) (West 2008)), as well as

with respect to the care and management of her finances (755 ILCS 5/11a-18(a) (West

2008)).

¶ 23 It was against this statutory backdrop that In re Marriage of Drews, 115 Ill. 2d 201

(1986), was decided. There, we held that a plenary guardian of a disabled adult does not have

standing to initiate an action for the dissolution of a ward’s marriage. Id. at 203. That case

involved a mother who was named as plenary guardian for her son after he had suffered a

head injury. After the son was abandoned by his wife, his guardian petitioned for dissolution

of marriage, which the son’s wife opposed. Id.

¶ 24 In ruling against the guardian, the court noted that a strong “majority rule” existed which

held that “absent statutory authorization, a guardian cannot institute an action, on behalf of

a ward, for the dissolution of the ward’s marriage.” Id. at 205.

¶ 25 The court looked to whether the General Assembly explicitly authorized the guardian of

a person to so act. Section 11a-17 of the Probate Act states that such a guardian’s duties

include providing for the ward’s “support, care, comfort, health, education and maintenance,

and professional services as are appropriate.” 755 ILCS 5/11a-17(a) (West 2008). The

provision also directs the guardian to assist the ward in “the development of maximum selfreliance and independence.” (Internal quotation marks omitted.) Drews, 115 Ill. 2d at 206.

The court concluded that nothing in section 11a-17 provided the explicit authorization

required under the traditional rule for a guardian to commence dissolution proceedings. Id.

¶ 26 The court also looked to section 11a-18, which specifies the duties of the guardian of the

estate, including “the care, management and investment of the estate.” 755 ILCS 5/11a-18

(West 2008). The court also found no explicit authorization in that provision. Indeed, the

court concluded that when read together, both sections 11a-17 and 11a-18 “grant onlylimited

standing related solely to matters directly bearing on the management of the ward’s estate.”

Drews, 115 Ill. 2d at 206.

¶ 27 Marcia argues that soon after Drews was decided, this court abandoned the strict

construction of sections 11a-17 and 11a-18 that had been embraced in that decision. Because

that construction is inconsistent with our more recent interpretation of the same provisions,

Marcia suggests that the usual stare decisis concerns are less compelling in this case and

should not serve to prevent this court from overruling Drews.

¶ 28 The stare decisis doctrine expresses the policy of the courts to stand by precedents and

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

209 Ill. 2d 76, 81 (2004); Wakulich v. Mraz, 203 Ill. 2d 223, 230 (2003). The doctrine is not

so rigid, however, that it will prevent a court from overruling prior decisions when good

cause exists to do so. People v. Sharpe, 216 Ill. 2d 481, 520 (2005); Colon, 225 Ill. 2d at 146.

¶ 29 One of the tenets of stare decisis is that the law will not change erratically, but will

develop in a principled, intelligent manner. See, e.g., Colon, 225 Ill. 2d at 146. As we explain

below, however, our case law concerning the construction of sections 11a-17 and 11a-18 has

not been consistent with the narrow construction given to those provisions in Drews.

¶ 30 As noted, Drews held that the guardianship provisions of the Probate Act “grant only

limited standing related solely to matters directly bearing on the management of the ward’s

estate.” Drews, 115 Ill. 2d at 206. Nevertheless, this court some three years later abandoned

the notion that decisions which fall outside this limited area must be expressly authorized by

the legislature. In In re Estate of Longeway, 133 Ill. 2d 33, 45-46 (1989), this court read

section 11a-17 expansively to authorize a plenary guardian to make the decision on behalf

of the ward regarding the use of life-sustaining measures. The following year, this court

reaffirmed the reasoning of Longeway in In re Estate of Greenspan, 137 Ill. 2d 1, 16 (1990).

In both cases, the court rejected arguments that under Drews, the Probate Act did not provide

a guardian with the authority to consent to removal of life support. In siding with the

guardian, this court offered no explanation as to why the provisions of the Probate Act which

were narrowly construed in Drews were now broadly viewed as empowering a guardian “to

perform an act which is within the implied authority granted by the Probate Act.” Longeway,

133 Ill. 2d at 46; Greenspan, 137 Ill. 2d at 13. The court thus relied on the notion of “implied

authority” rather than requiring onlyexplicit authorityin determining the power of a guardian

to act under the Probate Act.

¶ 31 This court’s next opportunity to interpret these same guardianship provisions of the

Probate Act came in In re Marriage of Burgess, 189 Ill. 2d 270 (2000). There, after the

husband had filed a petition for dissolution, he was adjudicated to be disabled, and his sister

was appointed his plenary guardian. Id. at 271. The wife then moved to dismiss the

dissolution action pursuant to Drews. Id. By way of a certified question, the appellate court,

relying on Drews, held that the guardian could not maintain the husband’s action. Id. at 271-

72.

¶ 32 This court, however, found Drews factually distinguishable on the basis that in that case

the guardian petitioned to institute the dissolution action on the ward’s behalf, whereas in

Burgessthe guardian merely continued a dissolution action previously begun by a ward prior

to incapacity. Id. at 271. Notwithstanding the factual distinction, the court’s analysis did not

end there, but went further. Commenting on the broad powers given to a guardian under

sections 11a-17 and 11a-18 of the Probate Act, the court construed these provisions in a

manner opposite the construction afforded the identical provisions in Drews. Rather than

accepting Drews’ interpretation of the powers conferred to guardians under the Probate Act

as being exclusive or limiting, the court interpreted those powers broadly, concluding that,

although not specificallystated in the statute, a guardian’s authority to maintain a dissolution

action on behalf of a ward “may be implied” from these provisions. Id. at 277. With respect

to section 11a-17(a), the court determined that the statute provided a “broad description of

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a guardian’s powers” (id. at 278), from which the authority of a guardian to continue a

dissolution action on behalf of a ward may be implied. In direct contrast to Drews, the court

acknowledged that “[t]he status of a ward’s marriage impacts the ward’s support, care,

comfort, and development of self-reliance and independence,” which we held were “areas

in which a guardian may be empowered to act under [section 11a-17](a).” Id. at 278. In

recognizing that the status of a ward’s marriage was an area that concerned the ward’s

person, the court relied on both Longeway and Greenspan, which held that guardians have

the authority to “make such decisions under section 11a-17 even though the power to do so

is not specifically enunciated.” Id. at 273 (citing In re Estate of Longeway, 133 Ill. 2d at 45-

46, and In re Estate of Greenspan, 137 Ill. 2d at 16-18).

¶ 33 Since Burgess, our appellate court has also applied the “implied authority” construction

of the guardianship statute rather than Drews’ narrow construction. For example, in In re

Estate of K.E.J., 382 Ill. App. 3d 401 (2008), the court held that under the provisions of

section11a-17(a) of the Probate Act, a guardian may seek to have a ward undergo involuntary

sterilization.

¶ 34 This review of the case law concerning the construction of these provisions of the

Probate Act confirms that the court has moved away from requiring explicit grants of

statutory authority in order for a guardian to act, instead allowing “implied authority” to

suffice. The decisions, as noted, do not explain what caused the court to depart from the view

embraced in Drews. This survey further reveals a shift in the court’s views regarding the

effect of the status of the ward’s marriage on the ward. In Burgess, we recognized the direct

impact that status has on numerous personal aspects of the ward, including her support, care,

comfort, and development of self-reliance and independence, all which trigger the authority

of the guardian to act on the ward’s behalf. Burgess thus contradicted Drews’ view that the

guardian was empowered only to act on behalf of the ward in matters of the ward’s estate.

Again, the decisions supply no explanation for this shift. Thus, we agree with Marcia that

inconsistencies exist and that no principled reason for these inconsistencies is apparent.

¶ 35 Jan concedes that the case law interpreting the guardian’s powers relating to decisions

of a personal nature is inconsistent. He asserts, however, there are legitimate reasons that

support maintaining the traditional rule that a plenary guardian may not bring dissolution

proceedings on behalf of the ward. He argues that a guardian can never be sure that divorce

conforms to the disabled spouse’s true wishes and it is for this reason alone that Drews

should be reaffirmed.

¶ 36 Although Drews cited to Illinois’ recognition of the “majority rule,” the court did not

speak to the rule’s origin or the rationale underpinning it. Rather, the court cited with

approval several decisions from other states, two of which best express the rule’s rationale.

In Wood v. Beard, 107 So. 2d 198 (Fla. Dist. Ct. App. 1958), the court explained that the

majority rule “is deeply embedded in the concept that a marriage relationship is exclusively

personal and that it may be dissolved only by the voluntary consent and the comprehending

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 matter what the nature and the number of grievous wrongs committed by one

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spouse against another, these of themselves cannot wreak the destruction of the

marriage status. The marital wrongs create only the basis for the divorce action. It is

the will and the decision of the injured one that invokes the judicial process. ***

[T]here is woven into the marriage fabric, regardless of the marital grievance, the

right by the aggrieved spouse to forgive or condone ***. For condonation to be

effected, since the marriage status is so completely personal, the free exercise of the

injured spouse’s will and the prerequisite of comprehension are required.” Id. at 199-

200.

¶ 37 Similarly, in Mohrmann v. Kob, 51 N.E.2d 921 (N.Y. 1943), the New York Court of

Appeals explained that the majority rule was grounded in the volition of the parties to end

the marriage. Using as an example an instance where one spouse is unfaithful, the court

stated that it is a “matter of choice by the innocent party *** whetherthe judicial process will

be set in motion to bring about a severance of the marriage tie because of such infidelity.”

Id. at 924. The court observed that the injured spouse may choose to remain in the marriage

“because of religious affiliation or for other reasons which satisfy the demands of good

conscience.” Id. Accordingly, where the injured spouse is incompetent and cannot

intelligently make that choice, the rule provides that no other person—including a

guardian—can exercise that option. Id. at 926 (Thacher, J., dissenting, joined byRippey, J.).

¶ 38 Thus, because the decision to divorce was viewed as a uniquely personal matter,

oftentimes involving religious and moral precepts, courts were reluctant to have others speak

for an incompetent adult in such situations. The rule reflected the view that “marriage is

sacred and that only the most serious of marital offenses should be grounds for divorce.”

Kurt X. Metzmeier, Note, The Power of an Incompetent Adult to Petition for Divorce

Through a Guardian or Next Friend, 33 U. Louisville J. Fam. L. 949, 951-52 (1995). This

view also went hand-in-hand with the policy that ending a marriage required a legal injury

in which the court would assign blame or fault to a specific spouse. The rule, therefore,

comported with those states in which the sole grounds for divorce laws were predicated upon

concepts of fault and injury, as was the case in Illinois prior to the enactment of the no-fault

provisions of the Illinois Marriage and Dissolution of Marriage Act. In such states, only the

injured spouse could seek a divorce.

¶ 39 With the enactment of the no-fault provisions in 1984, the General Assembly signaled

a shift in the policy regarding the grounds which must exist in order for a dissolution to be

granted. The passage of the no-fault provisions reflected a dissatisfaction with the traditional

requirements of proving fault to obtain a divorce. Indeed, the comments of the legislation’s

sponsor at the time reveal that the concept of fault in divorce actions had led to a wide variety

of problems, including parties “perjur[ing] themselves on the stand in order to find fault

grounds, when in fact, they just want to get out [of the marriage].” See 83d Ill. Gen. Assem.,

Senate Proceedings, May 27, 1983, at 226 (statements of Senator Marovitz). According to

the sponsor, Illinois’ enactment of no-fault divorce allowed people “to part with dignity.” Id.

at 226-27.

¶ 40 Although Drews was decided in 1986, our review of the appellate court’s decision in that

case reveals that the dissolution petition at issue was filed prior to the enactment of the new

no-fault law. See In re Marriage of Drews, 139 Ill. App. 3d 763, 765-66 (1985); see also 750

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ILCS 5/401(a)(2) (West 2008) (reflecting that the no-fault amendment became effective July

1, 1984). Thus, the court in Drews did not have to reconcile what impact, if any, the new

legislation had on the continued application of the traditional rule.

¶ 41 That question, however, is squarelypresented in this case. Illinois’ recognition of no-fault

divorce places it amongst those jurisdictions which, while acknowledging the state’s interest

in the stability of marriage, eliminated “the traditional concept that divorce is a remedy

granted to an innocent spouse.” Uniform Marriage and Divorce Act, Prefatory Note, 9A

U.L.A. 147, 148 (1987); see also Mark Schwarz, Note, The Marriage Trap: How

Guardianship Divorce Bans Abet Spousal Abuse, 13 J.L. & Fam. Stud. 187, 191 (2011)

(noting the “broad social destigmatization of divorce” accomplished through the adoption

of “no-fault statutes and/or vastly broader grounds for divorce”).

¶ 42 With the concept of “injury” removed from divorce in Illinois, it is difficult for us to

accept the view that the decision to divorce is qualitatively different from any other deeply

personal decision, such as the decision to refuse life-support treatment or the decision to

undergo involuntary sterilization. Each of these latter decisions can rarely be undone. The

same cannot be said for the decision to divorce—if the disabled adult regains competency

and disagrees with the guardian’s decision, remarriage to the formerspouse may be possible.

Thus, there is no reason why the guardian should not be allowed to use the substitutedjudgment provisions found in section 11a-17(e) of the Probate Act to make all types of

uniquely personal decisions that are in the wards’s best interests, including the decision to

seek a dissolution of marriage. Under our modern legal framework, “[i]f one party to a

marriage need not be ‘at fault,’ and divorce is arguably more ‘acceptable’ in American

society, it is not inconceivable that elderly, mentallyincapacitated, or mentallyill individuals

could want or need to institute divorce proceedings, where historically their wants or needs

were legallyirrelevant or dismissed as unascertainable.” (Emphases in original.) Diane Snow

Mills, Comment,“But I Love What’s-His-Name”: Inherent Dangers in the Changing Role

of the Guardian in Divorce Actions on Behalf of Incompetents, 16 J. Am. Acad. Matrimonial

Law, 527, 528-29 (2000).

¶ 43 In light of the above, we cannot agree with Jan that policy considerations regarding

divorce compel our reaffirmation of Drews. As is apparent, the traditional rule espoused in

Drews is no longer consistent with current Illinois policy on divorce as reflected in the

Illinois Marriage and Dissolution of Marriage Act.

¶ 44 We also note that the continued application of the traditional rule results in an inequity

to disabled spouses that conflicts with the policy underlying our Probate Act. Under the

traditional rule, a disabled spouse under a guardianship “is helpless to change the situation

if his or her competent spouse does not want a divorce. The incompetent, vulnerable spouse

is trapped in an unwanted, potentiallyabusive, marriage.” Schwarz, supra, at 188. As another

commentator has observed: “To provide a mentally competent spouse with [the power to

bring a divorce action against an incompetent spouse] in the absence of a corresponding

power to the incompetent to seek divorce (through a guardian) is to grant the competent

spouse ‘absolute, final control over the marriage,’ leaving ‘an incompetent spouse

completely at the mercy of a competent spouse’ to the marriage contract. Principles of equity

demand equal treatment and equal access to the courts for all individuals, not just those who

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

¶ 45 Accordingly, if we were to agree with Jan and reaffirm Drews, we would be allowing the

law to unfairly treat incompetent spouses, leaving them at the complete mercy of the

competent spouse without consideration of their best interests. This situation stands in direct

contravention of the policy of our state, which provides that once a person is found to be

“disabled” under our Probate Act, he or she is viewed as “ ‘a favored person in the eyes of

the law’ and is entitled to vigilant protection.” In re Mark W., 228 Ill. 2d 365, 374-75 (2008)

(quoting In re Estate of Wellman, 174 Ill. 2d 335, 348 (1996)). Indeed, guardianship is

intended to “promote the well-being of the disabled person, [and] to protect him from

neglect, exploitation, or abuse.” 755 ILCS 5/11a-3(b)(West 2008). It is for these reasons that

we disagree with Jan’s contention that Drews comports with current Illinois policy reflected

in the Probate Act concerning disabled spouses.

¶ 46 We note that, in so holding, we reject Jan’s assertion that the General Assembly’s

amendment in 2000 of section 11a-17 indicates the legislature’s rejection of the notion that

a guardian may also institute dissolution proceedings on the ward’s behalf. Jan contends that 2

this amendment indicates that the narrow construction given to section 11a-17 in Drews

comports with the legislature’s intent that implied authority under the provisions does not

exist.3

¶ 47 Jan overlooks that section 11a-17 was amended by the General Assembly before our

decision in Burgess was announced. As noted, Burgess broadly construed the provisions of

section 11a-17. If the legislature had a disagreement with our statutory construction in

Burgess, it could have thereafter amended the statute in the manner that Jan suggests. It did

not. Moreover, in the time since Burgess was announced, In re K.E.J. was decided by the

appellate court. In that decision, the court used the notion of section 11a-17’s implied

authority to provide a guardian with the power to request sterilization of the ward. In the

years that followed, the legislature has not taken action to indicate its disapproval of the

We note that during the briefing of this matter, Jan filed a motion, pursuant to Supreme 2

Court Rule 341(h)(7), to strike certain paragraphs of Marcia’s reply brief which related to his

legislative argument. The challenged paragraphs in Marcia’s brief referenced then-pending Senate

Bill 2547, which proposed to amend section 11a-17 of the Probate Act to allow a guardian to file a

dissolution petition and the circuit court to determine, on a case-by-case basis, whether dissolution

of marriage is in the best interests of the ward. Marcia also attached a copy of the proposed statute

to her brief. We took Jan’s motion to strike with this case and now deny it. Rule 341(h)(7) provides

that points not argued in the appellant’s initial brief shall not be raised in the reply brief. However,

Marcia’s reference to the proposed legislation was only in response to Jan’s argument raised in his

appellee’s brief. Further, this court may take judicial notice of the fact that legislation was pending

at the time of briefing.

The amendment provided the guardian of the person the authority to “maintain” a

3

dissolution action “[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) (West 2008).

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

decision in Longeway. Accordingly, the legislature acquiesced in this broad interpretation. 5

See R.D. Masonry, Inc. v. Industrial Comm’n, 215 Ill. 2d 397, 404 (2005) (where the

legislature chooses not to amend terms of a statute after judicial construction, it will be

presumed that it has acquiesced in the court’s statement of legislative intent).

¶ 48 We therefore reject any notion that policy, as reflected in either the Probate Act or the

Marriage and Dissolution of Marriage Act, compels the continued application of the

traditional rule cited in Drews. To do otherwise would mean that a guardian would be

prevented from seeking permission from the court to bring an action for dissolution on behalf

of an incompetent ward, even if the ward was in danger as a result of being in the marriage.

Given that the purpose of the Probate Act is to protect the ward, we would contravene that

purpose if we were to prohibit the exercise of the guardian’s power in the best interest of the

ward while endorsing a power imbalance against the incompetent spouse which could result

in physical or emotional abuse, financial exploitation, or neglect of the incompetent spouse

by the “competent” partner. By construing the Probate Act to prohibit a guardian from being

able to seek permission from the court to bring a dissolution action on behalf of the ward, we

would be improperly carving an exception to the broad powers of a guardian set forth by the

General Assembly in the Probate Act. In our view, it is only by giving these provisions their

full meaning that we can accomplish the legislature’s intent to protect the vulnerable

members of our society and to ensure their safety.

¶ 49 Whether a guardian is initiating, responding to, or continuing a dissolution action, the

interests of the ward that mayrequire protection remain constant, regardless of the procedural

posture of the case. Because under the Probate Act the guardian must always act in the best

interests of the ward, when a guardian decides that those best interests require that the

marriage be dissolved, the guardian must have the power to take appropriate legal action to

accomplish that end. We therefore find no compelling reason to treat a guardian’s decision

to seek court permission to institute a dissolution action on behalf of a ward any differently

from the multitude of other innately personal decisions which may be made by guardians on

behalf of their wards, including undergoing involuntary sterilization or ending life-support

measures. All of these decisions made by guardians without knowing a ward’s wishes are

just as personal—if not more so—than the decision to seek a divorce. All also may implicate

the ward’s moral and religious beliefs. The provisions of our Probate Act cannot be so

arbitraryas to empower a plenary guardian to make decisions with respect to all these matters

except for the decision to end a marriage. Either the guardian can act in the best interests of

the ward for all personal matters, or for none at all.

¶ 50 This ensures that the most vulnerable members of our society are afforded fundamental

fairness, equal protection of the laws (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2)

and equal access to the courts (U.S. Const., amend. I; Ill. Const. 1970, art. I, § 12). Therefore,

755 ILCS 5/11a-17.1 (West 2010). 4

755 ILCS 40/1 et seq. (West 2008). 5

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In re Marriage of Drews, 115 Ill. 2d 201 (1986), is hereby overruled.

¶ 51 By overruling Drews, we align Illinois with those states which allow a guardian to seek

court permission to bring a dissolution action on behalf of a ward where not expressly barred

or allowed by statute. See Schwarz, supra, at 188. We find persuasive opinions from other

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. App. 1994); In re Marriage of

Ballard, 762 P.2d 1051 (Or. Ct. App. 1988); Wahlenmaier v. Wahlenmaier, 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. Rigney, Annotation, Power of Incompetent Spouse’s Guardian or

Representative to Sue for Granting or Vacation of Divorce or Annulment of Marriage, or to

Make Compromise or Settlement in Such Suit, 32 A.L.R.5th 673, § 3(a) (1995) (collecting

cases).

¶ 52 We therefore reverse the judgments of both the circuit and appellate courts and hold that

Marcia’s petition should be allowed to be filed. On remand, we direct the circuit court to

hold a “best interests” hearing (see 755 ILCS 5/11a-17(e) (West 2008) (setting forth factors

to be considered in determining the best interests of the ward)) in orderto determine whether

it is in Marcia’s best interests to seek the dissolution of her marriage. In this regard, we note

that under section 11a-17, the actions of the guardian are always subject to the supervision

of the circuit court. 755 ILCS 5/11a-17(a) (West 1996); Burgess, 189 Ill. 2d at 281. Indeed,

a “guardian only acts as the hand of the court and is at all times subject to the court’s

direction in the manner in which the guardian provides for the care and support of the

disabled person.” In re Wellman, 174 Ill. 2d at 347.

¶ 53 In our view, the circuit court’s assessment of the petition for dissolution filed by a

guardian on behalf of a ward pursuant to the standards set forth in section 11a-17(e) provides

the needed procedural and substantive safeguards to ensure that the best interests of the ward

are achieved while preventing a guardian from pursuing a dissolution of marriage for his or

her own financial benefit, or because of the guardian’s personal antipathy toward the ward’s

spouse. To further safeguard the interests of all parties involved, we agree with Marcia that

the guardian must satisfy a clear and convincing burden of proof that the dissolution is in the

ward’s best interests. We believe a heightened burden is appropriate because “[c]ases

involving the dissolution of an incompetent spouse’s marriage *** present issues involving

personal interests more complex and important than those typically presented in a civil

lawsuit.” Ruvalcaba, 850 P.2d at 683; cf. In re Longeway, 133 Ill. 2d at 51 (requiring

guardian to adduce clear and convincing evidence in determining a ward’s intent regarding

refusal or withdrawal of artificial sustenance); In re Estate of K.E.J., 382 Ill. App. 3d at 415

(clear and convincing standard of proof required for guardian to establish sterilization is in

ward’s best interests because of the fundamental rights involved and to prevent abuse of

judicial authority).

¶ 54 CONCLUSION

¶ 55 For the foregoing reasons, we reverse the judgments of the appellate and circuit courts.

This cause is remanded to the circuit court for further proceedings consistent with this

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opinion.

¶ 56 Judgments reversed.

¶ 57 Cause remanded.

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