Docket No. 86974–Agenda 33–September 1999.

In re MARRIAGE OF BURGESS (Donald J. Burgess, Appellant,  								v. Sharron M. Burgess, Appellee).

	Opinion filed February 176, 2000.

	JUSTICE McMORROW delivered the opinion of the court:

	The issue presented in this case is whether the plenary

guardian of a disabled adult has standing to proceed with a

dissolution of marriage action filed by the ward prior to the

adjudication of the ward’s disability. We hold that a plenary

guardian may continue a dissolution action on behalf of a ward in

these circumstances.

BACKGROUND

	The relevant facts in this case are undisputed. Donald Burgess

and Sharron Burgess were married in 1978. In April 1996, Donald

filed a petition for dissolution of their marriage. In addition, he filed

a petition for an emergency order of protection against Sharron,

which the circuit court granted.

	In May 1997, Donald’s sister, Virginia Cronk (Cronk), filed a

petition for appointment of guardian for a disabled person, in which

she alleged that Donald was incapable of making or communicating

decisions regarding the care of his person and that he was unable

to manage his financial affairs. Cronk requested that the circuit

court adjudge Donald a disabled person and that she be appointed

guardian of his person and estate. In June 1997, the circuit court

appointed Cronk guardian of Donald’s person and estate.

	In July 1997, Sharron filed a motion to dismiss Donald’s

dissolution action on the ground that Cronk had no standing to

continue this action on behalf of Donald. The circuit court denied

her motion but, pursuant to Sharron’s request, certified the

following question for review by the appellate court under

Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)): “Can a

disabled adult’s plenary guardian (a guardian of both the

individual’s estate and person) continue a dissolution of marriage

action originally filed by the disabled adult prior to the filing of a petition for guardianship and prior to a finding of disability?” 302

Ill. App. 3d 807, 808.

	The appellate court answered the certified question in the

negative. 302 Ill. App. 3d at 812. The appellate court found that its holding was mandated by this court’s decision in In re Marriage of Drews, 115 Ill. 2d 201 (1986). According to the appellate court, Drews held that, absent a specific statute authorizing a guardian to initiate or maintain a dissolution of marriage proceeding for a ward,

a guardian is without standing to do so. The appellate court found

no such statutory authority and, therefore, concluded that Cronk

was without standing to prosecute Donald’s dissolution action. We

granted Donald’s petition for leave to appeal. 177 Ill. 2d R. 315.

ANALYSIS

	Section 11a–18 of the Probate Act of 1975 (755 ILCS

5/11a–18 (West 1996)) sets forth the powers of a guardian of the

estate. The powers of a guardian of the person are contained in

section 11a–17 of the Probate Act (755 ILCS 5/11a–17 (West

1996)), which describes the guardian’s authority to make personal

decisions on behalf of a ward as follows:

			“To the extent ordered by the court and under the

direction of the court, the guardian of the person shall

have custody of the ward and the ward’s minor and adult

dependent children; shall procure for them and shall make

provision for their support, care, comfort, health,

education and maintenance, and professional services as

are appropriate ***. The guardian shall assist the ward in

the development of maximum self-reliance and

independence.” 755 ILCS 5/11a–17(a) (West 1996).

	Donald argues that the appellate court erred in holding that a

guardian has no standing to continue a ward’s action for

dissolution of marriage because the authority to do so is implicit in

the language of section 11a–17. Sharron responds that, under this

court’s decision in Drews, a guardian may not initiate or continue a ward’s dissolution proceeding unless that power is specifically

enumerated in a statute. Sharron asserts that, because neither

section 11a–17 nor any other statute expressly authorizes a guardian to continue a dissolution action previously filed by a

ward, the appellate court was correct in denying Cronk standing to

pursue Donald’s dissolution action.

	Therefore, our initial inquiry in this case is whether an express

grant of statutory authority is necessary for a guardian to continue

a ward’s dissolution action. In other cases involving guardians’

authority to make personal decisions on behalf of a ward, Illinois

courts have held that the guardians may make such decisions under

section 11a–17 even though the power to do so is not specifically

enunciated. For example, courts have held that guardians may

decide on behalf of a ward to withdraw artificial nutrition and

hydration (see In re Estate of Longeway, 133 Ill. 2d 33, 45-46 (1989); In re Estate of Greenspan, 137 Ill. 2d 1, 16 (1990)), may consent to an adult ward’s adoption (In re Adoption of Savory, 102 Ill. App. 3d 276, 277-78 (1981)), and may consent to an

abortion on behalf of a disabled ward (In re Estate of D.W., 134 Ill. App. 3d 788, 791 (1985)).

	In Drews, however, this court decided that, with respect to the decision to initiate dissolution of marriage proceedings, a guardian

must have specific statutory authority. The ward’s mother in Drews was named guardian of her son’s person and estate after her son

became disabled as the result of a severe head injury. Following her

appointment as guardian, the mother filed a dissolution of marriage

action on her son’s behalf. The son’s wife filed a motion to dismiss

the action on the basis that the mother did not have standing to

bring the action. Drews, 115 Ill. 2d at 202-03.

	In determining whether the mother had standing to initiate a

proceeding for dissolution of her son’s marriage, the Drews court examined case law from other jurisdictions. The court found that

a majority of jurisdictions which had considered the issue had held

that, “absent statutory authorization, a guardian cannot maintain an

action, on behalf of a ward, for the dissolution of a ward’s

marriage.” Drews, 115 Ill. 2d at 203. This court observed that, in previous cases involving different issues, it had recited this majority

rule with approval. Drews, 115 Ill. 2d at 204, citing Pyott v. Pyott, 191 Ill. 280, 288 (1901) (guardian seeking annulment of a ward’s

marriage); Iago v. Iago, 168 Ill. 339, 341-42 (1897) (guardian defending dissolution of marriage proceedings). The court concluded that Illinois follows the majority rule that, “absent

statutory authorization, a guardian cannot institute an action, on

behalf of a ward, for the dissolution of the ward’s marriage.”

Drews, 115 Ill. 2d at 205.

	The Drews court then examined sections 11a–17 and 11a–18 of the Probate Act to determine whether there is statutory

authority for a guardian to bring a dissolution action. The court

found no such authority in section 11a–18 of the Probate Act

because this provision grants guardians standing to represent a

ward only with respect to legal proceedings concerning the ward’s

estate. Likewise, there is nothing in section 11a–17 that “grants the

guardian standing to maintain or defend any legal proceeding.” (Emphasis in original.) Drews, 115 Ill. 2d at 206. This court then concluded in Drews that, given the absence of statutory authority, the mother lacked standing to “maintain an action for the

dissolution of her ward’s marriage.” Drews, 115 Ill. 2d at 207.

	Although the issue in the instant case may be similar to that in Drews, we find that the strict rule adopted in Drews, requiring express statutory authority for a guardian to act, should not be

applied in this case. Donald correctly argues that Drews is factually distinguishable from his case. In addition, the policy reasons

underlying the Drews holding do not support mandating specific statutory authority for a guardian to continue a dissolution

proceeding, rather than initiate a dissolution proceeding on behalf

of a ward.

	The issue presented in the case currently before us was not

decided in Drews. Whereas Drews involved a guardian’s power to initiate dissolution of marriage proceedings on behalf of a ward, Donald’s case concerns a guardian’s authority to continue a ward’s dissolution of marriage action. Based on references in Drews to “maintaining” a dissolution action, Sharron and the appellate court

interpret Drews as holding that a guardian may not institute or continue a dissolution action without express statutory authority. To “maintain” a legal action may mean either “to commence” or

“to continue” the action. See Black’s Law Dictionary 953 (6th ed.

1990); Amman Food & Liquor, Inc. v. Heritage Insurance Co., 65 Ill. App. 3d 140, 146 (1978). In Drews, this court used the words “initiate” and “maintain” interchangeably. In the factual context of Drews, however, it is clear that the holding in that case is limited to a guardian’s authority to commence a dissolution action on

behalf of a ward.

	The factual differences between Drews and the instant case are important because the policy reasons underlying the Drews holding are particular to the facts in that case and are inapposite in the

circumstances presented by the instant case. In Drews, this court adopted the strict rule, followed by a majority of jurisdictions, that

express statutory authority is necessary for a guardian to initiate

dissolution proceedings on behalf of a ward. Although the rationale

for this rule is not discussed in Drews, it is explained by other courts deciding cases involving this rule. According to these

courts, the need for express statutory authority is based on policy

reasons. These policy reasons are primarily premised on the

personal nature of the decision to terminate a marriage (see, e.g., In re Jennings, 187 N.J. Super. 55, 59, 453 A.2d 572, 574 (1981); Mohrman v. Kob, 291 N.Y. 181, 188, 51 N.E.2d 921, 924 (1943) and the inability to determine with certainty that the ward would

have wanted to end the marriage (see Jennings, 187 N.J. Super. at 59, 453 A.2d at 574; Boyd v. Edwards, 4 Ohio App. 3d 142, 146, 446 N.E.2d 1151, 1156 (1982). In In re Marriage of Drews, 139 Ill. App. 3d 763, 775-76 (1985), the court noted the absence of any

facts indicating that the ward would have wanted to seek a

dissolution of his marriage. As one court observed, “majority

jurisdictions choose an absolute bar as the lesser of two evils,

protecting the possibility that the incompetent spouse might elect

to remain married if competent, even if it effectively prevents the

incompetent spouse from ending the marriage while under the

adjudication of incompetency.” Nelson v. Nelson, 118 N.M. 117, 120, 878 P.2d 335, 338 (App. 1994).

	While the risk that a guardian may be acting contrary to a

ward’s wishes may support the rule that a guardian’s power to

initiate a dissolution proceeding must be specified by the

legislature, this policy consideration does not justify requiring

express statutory authority for a guardian to continue a ward’s

dissolution proceeding. When the ward has filed an action for

dissolution of his or her marriage, the ward’s desire and intention

to end the marriage is clear. In the case at bar, the record reflects that Donald filed a petition to dissolve his marriage 14 months

prior to his being adjudicated incompetent. Thus, the added

protection afforded by the rule requiring specific statutory

authority for a guardian to represent a ward in a dissolution

proceeding is not necessary. Because the facts and analysis in

Drews demonstrate that it is inapplicable to the circumstances of the instant case, we determine that Drews does not prohibit a guardian from continuing a ward’s dissolution proceeding absent

specific statutory authorization.

	Courts in other jurisdictions have also refused to require that

a guardian’s power to continue a dissolution action filed by a ward

be enumerated in a statute. Instead, our research indicates that

those courts that have considered this issue have held that a

guardian’s authority to continue a dissolution action on behalf of

a ward may be implied from state statute. See, e.g., In re Parmer, 755 S.W.2d 5 (Mo. App. 1988); In re Ballard, 93 Or. App. 463, 466, 762 P.2d 1051, 1052 (1988); Wahlenmaier v. Wahlenmaier, 750 S.W.2d 837, 839 (Tex. Ct. App. 1988). For example, in

Wahlenmaier, the court held that a guardian could continue a dissolution action on behalf of a ward based on a state statute that

gave mentally ill individuals the same constitutional and statutory

rights as the nondisabled. The Wahlenmaier court concluded that

		“since this statutory provision gives every person who has

a mental incapacity every right and privilege guaranteed by

our constitution and laws, it must include a right to obtain

a divorce. It follows that, since the person may not be able

to act for themselves, a court appointed guardian ad litem

or next friend must be able to exercise those rights for a

mentally ill person.” Wahlenmaier, 750 S.W.2d at 839.

Similarly, the court in Ballard relied on a general statute that provided that, in any court proceeding in which an incapacitated

person was a party, that person should appear by his or her

conservator or guardian. The Ballard court decided that, because no different procedure is specified for dissolution proceedings, a

guardian has the authority to continue a dissolution proceeding on

behalf of a ward. Ballard, 93 Or. App. at 465, 762 P.2d at 1052.

	Like the courts in Ballard and Wahlenmaier, we find in the case at bar that a guardian’s authority to continue a dissolution action on behalf of a ward may be implied from section 11a–17. In

construing a statute, we must ascertain and give effect to the

intention of the legislature. See Zekman v. Direct American Marketers, Inc., 182 Ill. 2d 359, 368 (1998). In performing this inquiry, we begin with the language of the statute. See Texaco- Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262, 270 (1998).

	Section 11a–17 of the Probate Act authorizes a guardian to

provide for the “support, care, comfort, health, education and

maintenance” of a ward and requires the guardian to “assist the

ward in the development of maximum self-reliance and

independence.” 755 ILCS 5/11a–17(a) (West 1996). Under this

language, guardians have been permitted to make very personal

decisions for wards. See, e.g., In re Estate of D.W., 134 Ill. App. 3d 788, 791 (1985) (guardian has authority to consent to abortion

on behalf of ward); In re Adoption of Savory, 102 Ill. App. 3d 276, 277-78 (1981) (guardian has authority to consent to adoption of

adult ward). We find that a guardian’s authority to continue a

dissolution proceeding on behalf of a ward is also encompassed

within this broad description of a guardian’s powers. The status of

a ward’s marriage impacts the ward’s support, care, comfort, and

development of self-reliance and independence. These are areas in

which a guardian may be empowered to act under subsection (a).

	The language of a 1997 amendment to section 11a–17 also

indicates that the legislature intended a guardian to have the

authority to continue a dissolution proceeding filed by a ward prior

to an adjudication of disability. This amendment requires guardians

to make decisions on behalf of a ward in accordance with the

ward’s previously expressed wishes:

			“Decisions made by a guardian on behalf of a ward shall

be made in accordance with the following standards for

decision making. Decisions made by a guardian on behalf

of a ward may be made by conforming as closely as

possible to what the ward, if competent, would have done

or intended under the circumstances, taking into account

evidence that includes, but is not limited to, the ward’s

personal, philosophical, religious and moral beliefs, and

ethical values relative to the decision to be made by the

guardian. Where possible, the guardian shall determine how the ward would have made a decision based on the

ward’s previously expressed preferences, and make

decisions in accordance with the preferences of the ward. If the ward’s wishes are unknown and remain unknown

after reasonable efforts to discern them, the decision shall

be made on the basis of the ward’s best interests as

determined by the guardian. In determining the ward’s

best interests, the guardian shall weigh the reason for and

nature of the proposed action, the benefit or necessity of

the action, the possible risks and other consequences of

the proposed action, and any available alternatives and

their risks, consequences and benefits, and shall take into

account any other information, including the views of

family and friends, that the guardian believes the ward

would have considered if able to act for herself or

himself.” (Emphasis added.) 755 ILCS 5/11a–17(e) (West

1998).

By requiring guardians to act in accordance with their wards’

desires in making personal decisions, subsection (e) contemplates

that a guardian will have the authority to carry out the ward’s

wishes, including those expressed by a ward who filed a petition

for dissolution of marriage. Based on the legislative intent

contained in section 11a–17, we find that this statute authorizes a

guardian to continue a dissolution of marriage action on behalf of

a ward.

	Our interpretation of section 11a–17 is supported by recent

decisions in which Illinois courts have held that guardians must

make personal decisions for their wards in accordance with the

wards’ wishes. In In re Estate of Greenspan, 137 Ill. 2d 1 (1990), for example, the guardian petitioned the court for permission to

withdraw life-sustaining artificial nutrition and hydration being

administered to the ward. This court stated that the ward had a

right to refuse such life-sustaining medical treatment and that the

guardian could exercise this right on the ward’s behalf. Greenspan, 137 Ill. 2d at 16; see also In re Estate of Longeway, 133 Ill. 2d 33, 45-46 (1989). In addition, this court held that the guardian’s

exercise of the ward’s right should be governed by the ward’s

previously expressed wishes on the subject. The Greenspan court stated that, generally, a guardian is required to act in the ward’s

best interests. If, however, there is clear and convincing proof that

the ward would have chosen to have life-support withdrawn, the

guardian must act in accordance with these wishes, irrespective of

the guardian’s own judgment as to the ward’s best interests.

Greenspan, 137 Ill. 2d at 17-18. To do otherwise, the Greenspan court explained, would be to elevate “other parties’ assessments of

the meaning and value of life–or, at least, their assessments of what

a reasonable individual would choose–over the affected individual’s

own common law right to refuse medical treatment.” Greenspan, 137 Ill. 2d at 18; see also, e.g., In re C.E., 161 Ill. 2d 200 (1994) (a guardian may consent to the administration of psychotropic

medication on behalf of a ward if a court finds, after considering

the wishes of the recipient, that there is clear and convincing proof

that the administration of the medicine outweighs its potential

harmful effects); In re Estate of Austwick, 275 Ill. App. 3d 769 (1995) (a guardian may authorize the administration of

electroconvulsive therapy to a ward upon a clear and convincing

showing that the ward would have wanted this treatment).

	Our decision in Greenspan supports Cronk’s standing to continue Donald’s dissolution action in this case. Like the decision

to withdraw life-sustaining nutrition and hydration, a spouse’s

decision to terminate a marriage is intensely personal. By filing a

petition for dissolution of marriage 14 months prior to his being

adjudicated a disabled person, Donald made a clear and convincing

showing of his choice to end his marriage. Greenspan requires that, when there is such proof of the ward’s preferences, a guardian

must act in accordance with those preferences. To deny Cronk

standing to continue Donald’s dissolution action would be to

elevate other parties’ assessments as to the value of Donald’s

marriage over his own expressed desire to end that marriage.

Based on section 11a–17 and Illinois case law involving the scope

of a guardian’s authority, we hold that Cronk has standing to

continue Donald’s action to dissolve his marriage.

	We observe that our holding is consistent with an amendment

to section 11a–17 that became effective while this appeal was

pending. After the appellate court issued its opinion in this case,

the legislature amended section 11a–17 to specifically permit a guardian to continue a dissolution of marriage action on behalf of

a ward in the circumstances presented here. Section 11a–17 now

provides:

			“If the ward filed a petition for dissolution of marriage

under the Illinois Marriage and Dissolution of Marriage

Act before the ward was adjudicated a disabled person

under this Article, the guardian of the ward’s person and

estate may maintain that action for dissolution of marriage

on behalf of the ward.” Pub. Act 91–139, eff. January 1,

2000 (amending 755 ILCS 5/11a–17 (West 1996)).

Neither party has argued, however, that this new section should

have any application to the facts before us. Accordingly, we do not

address whether amended section 11a–17 would apply to the

instant case. See Reed v. Farmers Insurance Group, 188 Ill. 2d 168, 172-73 (1999); Schirmer v. Bear, 174 Ill. 2d 63, 69 n.1 (1996).

	Finally, we emphasize the limited nature of our holding. We

decide only that Cronk has standing to continue a dissolution of

marriage proceeding filed by Donald. Under section 11a–17, her

actions are still subject to the supervision of the circuit court. See

755 ILCS 5/11a–17(a) (West 1996); see also In re Estate of Wellman, 174 Ill. 2d 335, 347 (1996) (“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 addition, we express no

opinion as to the merits of Donald’s action for dissolution of

marriage. Whether a dissolution should be granted is a matter for

the circuit court to determine after appropriate proceedings under

the Illinois Marriage and Dissolution of Marriage Act (750 ILCS

5/101 et seq. (West 1996)).

CONCLUSION

	For the foregoing reasons, we hold that a guardian has

standing to pursue a dissolution of marriage action on behalf of a

ward when the ward has filed the action prior to being adjudicated

disabled. Accordingly, we reverse the judgment of the appellate court and remand the cause to the circuit court for further

proceedings consistent with this opinion.

Appellate court judgment reversed;

cause remanded.

	JUSTICE RATHJE, specially concurring:

	I agree with the majority that a plenary guardian of a disabled

adult has standing to proceed with a dissolution of marriage action

filed by the ward prior to the adjudication of the ward’s disability.

I cannot, however, join the majority’s analysis, which is wholly

unnecessary and irrelevant.

	The majority spends 24 paragraphs resolving a simple issue

that already has been decided. The molehill beneath the majority’s

mountain is section 11a–17(a–5) of the Probate Act of 1975 (Pub.

Act 91–139, eff. January 1, 2000 (amending 755 ILCS 5/11a–17

(West 1998)), which provides that:

			“If the ward filed a petition for dissolution of marriage

under the Illinois Marriage and Dissolution of Marriage

Act before the ward was adjudicated a disabled person

under this Article, the guardian of the ward’s person and

estate may maintain that action for dissolution of marriage

on behalf of the ward.”

This amendment was added by the legislature while this appeal was

pending. The provision has an effective date of January 1, 2000. 

	When the legislature changes the law while an appeal is

pending, a reviewing court will apply the new law unless to do so

would interfere with a vested right. First of America Trust Co. v. Armstead, 171 Ill. 2d 282, 289 (1996); see also Dardeen v. Heartland Manor, Inc., 186 Ill. 2d 291, 295 (1999) (McMorrow, J., writing). Vested rights are interests protected from legislative

interference by the due process clause (Ill. Const. 1970, art. I, §2). Armstead, 171 Ill. 2d at 289. A right has not vested until it is “so far perfected that it cannot be taken away by legislation,” and so

“complete and unconditional” that it “may be equated with a

property interest.” Armstead, 171 Ill. 2d at 290-91.

	Clearly, no vested right is impaired by application of the

amended statute. The legislature merely clarified that the scope of

a guardian’s powers includes maintaining dissolution suits that

were filed before the ward became disabled. Donald had a valid

dissolution action pending against Sharron for over a year before

he was adjudicated disabled. The legislation simply allows

Donald’s guardian to continue this action. Further, Sharron has not

identified any vested right with which application of the new

statute would interfere. Although the statute was not yet effective

when the parties filed their appellate briefs, Donald noted in his

brief that the legislature had proposed amendments to the statute

and that applying the new statute would not interfere with a vested

right. Sharron could have addressed this argument in her response

brief but chose to ignore it. Sharron has not argued that a vested

right would be impaired by application of the current law, and I am

unable to discern one.

	Nor is this the situation presented in In re Marriage of Cohn, 93 Ill. 2d 190 (1982), where the legislature violated separation of

powers principles by passing legislation to overrule a decision of a

reviewing court. In Cohn, we explained that, although the legislature may change the law as interpreted by the courts

prospectively, it cannot retroactively alter a statute in such a way

that the statute itself overrules a decision of a reviewing court. In

that case, the legislature sought to validate a bifurcated judgment

in a divorce case by passing a statute allowing for such judgments.

The statute was passed following the appellate court’s decision

vacating the judgment and included a provision that said, “  ` ‘All

judgments for dissolution of marriage reserving any such questions

entered prior to the effective date of this amendatory Act of 1981

are declared to be valid as of the date of entry.'’ ” Cohn, 93 Ill. 2d at 201, ciquoting Ill. Rev. Stat. 1981, ch. 40, par. 401(3). Thus, the

legislation itself would have changed the appellate court’s decision.

This court held that the legislature “invaded the province of the

judiciary by retroactively overruling a decision of a reviewing

court.” Cohn, 93 Ill. 2d at 204.

	Here, by contrast, the legislature did not attempt to change the

decision of the appellate court. Although the amendment might

have been proposed in response to the appellate court’s decision, the legislature made no attempt to apply the statute to pending

cases and gave the statute an effective date of January 1, 2000. In Cohn, we reiterated that the legislature can enact legislation for prospective application in pending cases so long as it does not

attempt to tell a court how to apply the new law to the facts of a

particular case. Cohn, 93 Ill. 2d at 205-06. What the legislature cannot do is attempt “to attribute to a statute, at the time of the

reviewing court’s opinion, a meaning different than that declared

in the opinion.” Cohn, 93 Ill. 2d at 206.

	This case was argued at the September 1999 term of court. If

the opinion had been issued before the end of the year, the new

statute would not have been applicable. The case was not decided

until January 2000, and by that time the new statute was in effect.

The legislature did not try to attempt to alter the meaning of the

statute at the time the appellate court’s opinion was issued  and did

not try to dictate to the courts how to apply the new law to

pending cases. Accordingly, there is no separation of powers

problem in applying the current law.

	The majority’s only reason for failing to apply the current law

is that “Neither party has argued ***, however, that this new section should

have any application to the facts before us.” Judge’s proofs at 23Slip opl. at 10.. I am

unaware of any rule which holds that this state’s highest court can

apply the controlling law only if the parties cite it in their briefs.

There never has been, and hopefully never will be, such a rule.

	In sum, I concur with the majority’s conclusion that a plenary

guardian of a disabled adult has standing to maintain a dissolution

action filed by the ward prior to the adjudication of the ward’s

disability. I do so not for the reasons stated in the majority opinion,

but because a controlling statute specifically answers this question.