Survey of illinois law: elder law

Charles A. LeFebvre* and Martin W. Siemer** Each year, it seems that new cases and statutes of relevance to the Elder Law practitioner arrive in force. The year this article was written, 2008, is nodifferent. There are cases of significance, statutory amendments (though veryfew for the year and none that will be discussed here), and general updates ofinterest.
Now, almost three years after the passage of the Deficit Reduction Act of 2005 (DRA), Illinois continues to be one of the minority of states that hasnot implemented the DRA. Illinois Elder Law practitioners are still left towonder how to best plan for clients in the face of unknown rules coming downat an unknown time with unknown consequences. Time will tell whether the2010 Survey of Illinois Law for Elder Law is to be devoted to Illinois’ DRAimplementation.
Executive Vice President, Trust & Wealth Management Division of First Mid-Illinois Bank & Trust,N.A., Mattoon, Illinois; former partner of the law firm of Thomas, Mamer & Haughey, LLP,Champaign, Illinois, graduated summa cum laude from the University of Illinois School of Law in1998; received B.S. in mathematics from the University of Illinois at Urbana-Champaign in 1992;member, Order of the Coif, 1992; current chair of the Illinois State Bar Association Elder LawSection Council. This author would like to express thanks to all the current and former members ofthe Elder Law Section Council for their contributions to his knowledge of the field. Additional thanksto Lott Thomas of Champaign, Illinois, who inspired me to contribute to the greater community andour profession, and to my current employer for supporting and encouraging those contributions.
Finally, Professor Richard A. Kaplan of the University of Illinois College of Law and the IllinoisInstitute for Continuing Legal Education deserve recognition for helping the legal communityunderstand the growing importance of this field.
Founding member of Resch Siemer Law Office, LLC, Effingham, Illinois; graduated summa cumlaude and as class valedictorian from Saint Louis University School of Law in 1994; received B.S.
in Secondary Education from the University of Illinois at Urbana-Champaign in 1991. Mr. Siemerconcentrates his practice in the areas of Elder Law, Estate Planning, Probate and Trust Administrationand civil appeals. He is a member of the National Academy of Elder Law Attorneys (NAELA), theLife Care Planning Law Firms Association, the Effingham County Bar Association, the Illinois StateBar Association and the Appellate Lawyers Association. He has served as a member of the IllinoisState Bar Association’s Elder Law Section Council since 2006, and has been a speaker for the LifeCare Planning Law Firms Association annual conference, the IICLE Elder Law Short Course, andmany local programs. He has been a member of the Board of Education for Teutopolis CommunityUnit School District No. 50 since 1997, currently serving as its president. The genesis of this articlelies with material gathered and presented for a session of the 4th Annual Elder Law Short Course, acontinuing legal education program presented by the Illinois Institute of Continuing Legal Educationin Northbrook, Illinois, on December 8, 2008.
The materials here are organized with a desk reference of numbers and statistics for use in 2009 included in Section II. Published decisions handeddown in 2008 are summarized in Section III.
Part A deductible per benefit period: $1,068 Part A daily coinsurance, days 61 through 90 (per benefit period): $267 perday Part A daily coinsurance, 60 lifetime reserve days: $534 per day Part A daily coinsurance, days 21 through 100 in skilled nursing facility (perbenefit period): $133.50 per day $244 for voluntary enrollees with 30–39 quarters of coverage$443 for voluntary enrollees with less than 30 quarters Part B monthly premium for those filing individual tax returns: $ 96.40 ($85,000 or less in AGI)$134.90 ($85,001 to $107,000 in AGI)$192.70 ($107,001 to $160,000 in AGI)$250.50 ($160,001 to $213,000 in AGI)$308.30 (over $213,000 in AGI) Part B monthly premium for those filing joint tax returns: $ 96.40 ($170,000 or less in AGI)$134.90 ($170,001 to $214,000 in AGI)$192.70 ($214,001 to $320,000 in AGI)$250.50 ($320,001 to $426,000 in AGI)$308.30 (over $426,000 in AGI) The information regarding Medicare is summarized from the official Medicare website,
Part B monthly premium for married filing separate tax returns: $ 96.40 ($85,000 or less in AGI)$250.50 ($85,001 to $128,000 in AGI)$308.30 (over $128,000 in AGI) Part D enrollment period: November 15, 2008 through December 31, 2008 Persons in family unit Poverty Limit1……………………………………………………$10,8302……………………………………………………$14,5703……………………………………………………$18,3104……………………………………………………$22,0505……………………………………………………$25,7906……………………………………………………$29,5307……………………………………………………$33,2708……………………………………………………$37,010 For family units with more than 8 persons, add $3,740 for eachadditional person.
Income limits vary for Alaska and Hawaii. Limits are effective July1, 2008 through June 30, 2009.
Community Spouse Asset Allowance:2008–$104,4002009–$109,560 Community Spouse Maintenance Needs Allowance:2008–$2,6102009–$2,739 Annual Update of the HSS Poverty Guidelines, 74 Fed. Reg. 14, 4200 (Jan. 23, 2009).
The information regarding Medicaid is summarized from the Illinois Medicaid Policy Manual, foundonline at Current web address for Policy Manual and Workers Action Guide: Irrevocable Prepaid Burial Expense Limit:$5,219, effective September 1, 2007$5,376, effective September 1, 2008 D. Maximum Deductions For Qualified Long Term Care InsurancePremiums4 Attained Age before the close of the tax year Effective January 1, 2009, the annual gift tax exclusion increases to $13,000.
A. Mental Health and Developmental Disabilities Code The trial court ordered Alaka W., a retired physician, committed to a hospital with the involuntary administration of psychotropic medication.7 Onappeal, this ruling was challenged on several grounds. The appellate court firstheld that the standard of appellate review in determining whether therespondent was examined by a psychiatrist, clinical social worker or clinicalpsychologist, as required by statute,8 turns on whether there are disputed facts.9The court determined that the underlying testimony as to the nature of an In re Alaka W., 379 Ill. App. 3d 251, 884 N.E.2d 241 (3d Dist. 2008).
Id. at 255, 258, 884 N.E.2d at 244, 246.
Id. at 259, 884 N.E.2d at 247.
examination where the respondent refused to answer was not at issue; thus,review on that issue was de novo.10 The court then determined that, under thecircumstances presented, respondent’s refusal to be interviewed by apsychiatrist did not preclude the finding of the required exam.11 The trial court ruling was reversed, though, because the state failed to establish, by clear and convincing evidence, that respondent lacked thecapacity to make a reasoned decision concerning her treatment,12 thatrespondent was unable to provide for her basic physical needs so as to guardherself from serious harm,13 or that hospitalization was the least restrictivealternative.14 Oral testimony presented was also insufficient to substitute fora dispositional report.15 Additionally, the State was required to produce evidence of the benefits of each drug sought to be administered, as well as the potential side effect ofeach drug, in order to establish that the benefits of the proposed course oftreatment outweigh the potential risks.16 The State failed in this regard.17 Pursuant to 405 ILCS 5/2–107.1, the hearing on involuntary administration must be held separate from the hearing on involuntaryadmission.18 Even though respondent failed to object in the trial court, therequirement of separate hearings is subject to strict, as opposed to substantial,compliance.19 While the trial court issued separate orders on the two petitions,evidence was presented in a single hearing.20 Andrew B. was voluntarily admitted to a treatment facility on March 26, 2007.22 He asked to be discharged on May 7 of that year.23 That requesttriggered the filing of a petition for involuntary admission on May 8.24 Thatfirst petition was dismissed on June 12, and Andrew B. was ordered Id. at 259, 884 N.E.2d at 247–48.
Id. at 261, 884 N.E.2d at 249.
Id. at 265, 884 N.E.2d at 252.
Id. at 267, 884 N.E.2d at 254.
Id. at 273, 884 N.E.2d at 259.
Id. at 270–71, 884 N.E.2d at 256–57.
Id. at 263, 884 N.E.2d at 250.
Id. at 264, 884 N.E.2d at 251.
Id. at 273, 884 N.E.2d at 259; 405 ILL. COMP. STAT. 5/2–107.1.
Id. at 274, 884 N.E.2d at 259.
Id. at 275, 884 N.E.2d at 260.
In re Andrew B., 386 Ill. App. 3d 337, 896 N.E.2d 1067 (2d Dist. 2008).
Id. at 338, 896 N.E.2d at 1068.
Id. at 338, 896 N.E.2d at 1069.
discharged from the facility.25 Before he was discharged, a second petition forinvoluntary admission was filed the next day.26 On June 19, the secondpetition was dismissed on the State’s motion, and the court ordered thatAndrew B. be discharged from the facility.27 On June 20, prior to hisdischarge, a third petition for involuntary dismissal was filed.28 This petitionwas granted, and Andrew B. was found subject to involuntary admission forup to ninety days.29 On appeal, respondent argued that because he had been continuously confined since before the filing of the first petition, the third petition did notcomply with 405 ILCS 5/3–611.30 This section of the Mental Health andDevelopmental Disabilities Code mandates that a petition for involuntaryadmission be filed within twenty-four hours of a respondent’s admission to atreatment facility.31 The third petition was filed on June 20, more than a monthafter the first petition was filed and more than a week after the first petitionwas dismissed.
The trial court’s granting of the third petition was affirmed.32 The court reasoned that when the first petition was denied and Andrew B. was ordereddischarged, he ceased being a patient and was entitled to be treated as anyother person in the community.33 Just like any other member of thecommunity, if he exhibited symptoms subjecting him to involuntaryadmission, he could be detained for a twenty-four hour period pending thefiling of a new petition.34 Since each subsequent petition was filed withintwenty-four hours of an ordered discharge, the third petition was notuntimely.35 Respondent was found unfit to stand trial on criminal charges and was admitted to a treatment facility.37 His psychiatrist filed a petition to Id. at 340, 896 N.E.2d at 1070–71.
Id. 405 ILL. COMP. STAT. 5/3–611.
Id. at 347, 896 N.E.2d at 1076.
Id. at 342–43, 896 N.E.2d at 1072–73.
In re Atul R., 382 Ill. App. 3d 1164, 890 N.E.2d 695 (4th Dist. 2008).
Id. at 1165, 890 N.E.2d at 696.
involuntarily administer treatment to respondent.38 This petition was grantedand respondent appealed, claiming in part that his criminal defense attorneywas entitled to notice of the petition.39 Following Illinois Supreme Courtauthority, the appellate court found that 405 ILCS 5/2–107.1 requires thatwritten notice be given to the attorney or agent of a respondent.40 Respondentcame to be in a treatment facility as a result of being found unfit to stand trialin criminal proceedings, and respondent was represented by an attorney inthose proceedings.41 At the very least, the attorney is an agent entitled tonotice under this statute.42 The trial court’s granting of the petition wasreversed.43 Following a hearing on the merits, respondent was found subject to involuntary treatment.45 He appealed, arguing that the State failed to presenthim with written notice of the risks and benefits of the proposed treatment, aswell as alternatives to the treatment.46 Respondent further argued on appealthat the trial court’s order authorized dosages of psychotropic medication werenot supported by the evidence.47 The appellate court found that the written notice of risks, benefits and alternatives is required and is not subject to a harmless error analysis.48 Clearand convincing evidence of the written notice must be presented.49 Eventhough the notice was alleged in the petition, no testimony of the writtennotice was presented.50 Thus, the trial court’s order was against the manifestweight of the evidence and was reversed.51 Reversal was also warranted on separate grounds. 405 ILCS 5/2–107.1(a–5)(6) requires that the order of the court specify the medicationsand the anticipated range of doses that is authorized.52 Again, testimony in Id. at 1167, 890 N.E.2d at 697.
Id. at 1170, 890 N.E.2d at 700.
In re A.W., 381 Ill. App. 3d 950, 887 N.E.2d 831 (4th Dist. 2008).
Id. at 954, 887 N.E.2d at 835.
Id. at 956, 887 N.E.2d at 837.
Id. at 958, 887 N.E.2d at 839.
Id. at 957, 887 N.E.2d at 837–38.
Id. at 957, 887 N.E.2d at 837.
Id. at 957, 887 N.E.2d at 838.
Id. at 958, 887 N.E.2d at 839; 405 ILL. COMP. STAT. 5/2–107.1(a–5)(6).
support of the range allowed in the order was included in the petition but wasnot supported by the testimony presented at hearing.53 Respondent, who is mildly retarded, voluntarily admitted himself into a treatment facility.55 Upon requested discharge, a petition for involuntaryadmission was filed.56 This petition alleged that respondent could be expectedto inflict serious harm upon himself or others in the near future.57 At trial, the only witness to testify for the State was a licensed clinical social worker who was not directly involved in respondent’s care and did notpersonally examine respondent.58 The testimony provided no specificinstances of aggression and only indicated that respondent “could be” a dangerto himself or others.59 This witness admitted that a development disabilitiesfacility would be more appropriate than a mental health facility.60 The trial court entered an order finding that the respondent was mentally retarded and unable to meet his basic needs so as to avoid physical harm tohimself.61 Respondent appealed, and the appellate court found the case moot.62The Illinois Supreme Court denied a petition for leave to appeal but entered asupervisory order directing the appellate court to consider the appeal on itsmerits.63 On remand, the appellate court reversed.64 Inability to meet basic needs is grounds for involuntary admission except when based upon mentalretardation.65 The only basis for involuntary admission then is a reasonableexpectation of physical harm to respondent or another.66 The trial court orderdid not base the involuntary admission on proper grounds.67 Additionally, thewitness at trial did not personally examine the respondent, contrary to statutory Id. at 959, 887 N.E.2d at 839.
In re Charles G., 377 Ill. App. 3d 1127, 882 N.E.2d 597 (5th Dist. 2008).
Id. at 1128, 882 N.E.2d at 598.
Id. at 1129, 882 N.E.2d at 598.
Id. at 1129, 882 N.E.2d at 598–99.
Id. at 1129, 882 N.E.2d at 599.
Id. at 1128, 1129, 882 N.E.2d at 598, 599.
Id. at 1132, 882 N.E.2d at 601.
Id. at 1130, 882 N.E.2d at 599–600; 405 ILL. COMP. STAT. 5/4–500.
Id. at 1130, 882 N.E.2d at 600; 405 ILL. COMP. STAT. 5/4–500.
Id. at 1130–31, 882 N.E.2d at 600; 405 ILL. COMP. STAT. 5/4–607.
requirements.68 Finally, the petition did not contain sufficient allegations insupport of involuntary admission.69 The trial court granted a petition for involuntary administration of psychotropic medication.71 The order authorized use of the drug Haldol,despite uncontradicted evidence that respondent had suffered severe sideeffects from a prior administration of Haldol.72 Thus, the petition was notsupported by clear and convincing evidence that the benefits of the treatmentoutweighed the risk, as required by 405 ILCS 5/107.1.73 The appellate court reversed and further held that, even if the trial court had wanted to selectively omit Haldol from the list of approved medications,it could not have done so.74 Treatment with psychotropic medications ofteninvolves the use of multiple medications.75 The legislature did not intend fortreatment orders to authorize something less than what the treating physicianprescribes.76 A psychiatrist treating respondent petitioned for authority to involuntarily administer psychotropic mediations to respondent.78 The trial court grantedthis petition.79 The petition made no allegation that the psychiatrist made agood faith effort to determine whether respondent had a valid power ofattorney for health care or a declaration for mental health treatment.80 Thepsychiatrist, in fact, testified that she did not make any effort to determinewhether such documents exist, and she was unaware of whether anyone elsemade an effort to determine this.81 Respondent testified that she did have a Id. at 1131, 882 N.E.2d at 600.
Id. at 1131–32, 882 N.E.2d at 601.
In re C.S., 383 Ill. App. 3d 449, 890 N.E.2d 1007 (1st Dist. 2008).
Id. at 449, 890 N.E.2d at 1008.
Id. at 451, 890 N.E.2d at 1010.
Id. at 452, 890 N.E.2d at 1011.
In re Denetra P., 382 Ill.App.3d 538, 2008 WL 2058256 (4th Dist. 2008).
power of attorney with a named agent, but no document was presented asevidence in the trial court.82 On appeal, the Fourth District reversed.83 405 ILCS 5/2–107.1(a–5)(1) requires that a petition for involuntary administration include a statement thatthe petitioner has made a good faith effort to determine whether there is apower of attorney or declaration.84 The Illinois Supreme Court has held thatthe trial court shall, if possible, apply the substituted judgment test, where asurrogate decision-maker attempts to establish what decision the respondentwould have made, if able to decide.85 A power of attorney would be extremelyrelevant to the application of the substituted judgment standard, and the courtstated that this is in fact why many people execute powers of attorney.86 The record need only indicate that a power of attorney exists, even without “sufficient proof” of the document itself.87 The burden is on thepetitioner to make a good faith effort to ascertain whether the document existsand, if so, to obtain a copy of it.88 Failure to do so warrants reversal.89 Justice Cook filed a dissent, finding harmless error and stating that respondent had ample opportunity to present the alleged power of attorney andhad not done so.90 A petition to involuntarily administer psychotropic medication was granted by the trial court.92 Respondent appealed on the basis that the orderdid not name the persons authorized to administer the medication.93 The Stateconfessed the error, and the appellate court reversed.94 405 ILCS 5/2–107.1(a–5)(6) provides that an order authorizing the administration of psychotropic medication “shall designate the personsauthorized to administer the authorized involuntary treatment.”95 This is Id., 904 N.E.2d at 46; See 405 ILL. COMP. STAT. 5/2–107.1(a–5)(1).
In re Denetra P., 382 Ill. App. 3d 538, 904 N.E2d at 46 In re Jonathon P., 378 Ill. App. 3d 654, 882 N.E.2d 1054 (2d Dist. 2008).
Id. at 655, 882 N.E.2d at 1055–56.
Id. at 655, 882 N.E.2d at 1056.
Id. (citing 405 ILL. COMP. STAT. 5/2–107.1(a–5)(6)).
required so as to ensure the involvement of a “qualified professional familiarwith the respondent’s individual situation and health status.”96 Theinvoluntary administration of medication invokes important liberty issues, sostrict compliance with the statutory procedures is required.97 Even if not raisedin the trial court, the omission is plain error warranting reversal.98 Review ofthe issue is de novo.99 Respondent had a long history of placements and aggressive behaviors.101 He had been held at a mental health center since November 12, 2003.102 Apetition to maintain respondent on an involuntary commitment status was filedon August 2, 2007.103 The trial court granted the petition and orderedrespondent remain subject to involuntary admission.104 Respondent appealedand the appellate court reversed.105 While respondent raised several grounds for reversal,106 he ultimately succeeded on the argument that the State failed to present sufficient evidencein support of the petition.107 The court agreed that the required certificates andthe treatment plan attached to the petition presented ample evidencewarranting respondent’s continued hospitalization.108 However, none of thisevidence was presented at the hearing.109 The only witness to testify hadexamined respondent only once, the day prior to the hearing.110 Her testimonywas brief and consisted largely of affirmative answers to leading questions andbrief references to material contained in the certificates and treatment plan, butthose documents were not admitted into evidence.111 Explicit medical In re Jonathon P., 378 Ill. App. 3d at 655–56, 882 N.E.2d at 1056.
Id. at 656, 882 N.E.2d at 1056.
Id. at 656, 882 N.E.2d at 1056.
100. In re Phillip E., 385 Ill. App. 3d 278, 895 N.E.2d 33 (5th Dist. 2008).
101. Id. at 278–79, 895 N.E.2d at 36.
102. Id. at 279, 895 N.E.2d at 37.
103. Id.
104. Id. at 281, 895 N.E.2d at 38.
105. Id. at 281, 286, 895 N.E.2d at 38, 42.
106. Id. at 281, 895 N.E.2d at 38.
107. Id. at 286, 895 N.E.2d at 42.
108. Id. at 284, 895 N.E.2d at 40.
109. Id.
110. Id. at 280, 895 N.E.2d at 38.
111. Id. at 284, 895 N.E.2d at 40.
evidence must be presented in support of an involuntary admission, and theevidence must be established by clear and convincing evidence.112 The court, in reversing, stated several times that it was not criticizing the examinations made or the contents of the certificates and treatment plan.113Rather, the “criticism is centered on the presentation made to the court and thecourt’s reliance on less than full proof.”114 A Springfield police officer filed a petition for an emergency involuntary admission of respondent.116 The petition alleged that respondent was found ata motel “throwing rocks at the building while naked,” having “written all overherself” and “on her bathroom floor and walls.”117 The police officer statedrespondent “was making crazy statements,” including that she would “blow upa school.”118 “Respondent agreed to go to the hospital but only after taking offher clothes.”119 Based on the testimony of an examining psychiatrist, the petition was granted.120 Respondent appealed, and the appellate court reversed.121 Respondent first argued that the petition was defective for not naming her family members or stating that a diligent effort was made to locate them.122While that portion of the petition was left blank, the court found this to beharmless error.123 The psychiatrist had spoken with respondent’s mother, andan aunt was also mentioned in testimony.124 Respondent also did not object atthe hearing.125 No prejudice was suffered.126 Respondent next argued that the State failed to present clear and convincing evidence warranting involuntary admission.127 While the courtfound that sufficient evidence as to mental illness was presented, the evidence 112. Id. at 284, 895 N.E.2d at 41.
113. Id. at 286, 895 N.E.2d at 42.
114. Id.
115. In re Robin C., 385 Ill.App.3d 523, 898 N.E.2d 689 (4th Dist. 2008).
116. Id. at 525, 898 N.E.2d at 691.
117. Id.
118. Id.
119. Id.
120. Id. at 525–26, 898 N.E.2d at 691–92.
121. Id. at 526–30, 898 N.E.2d at 692–95.
122. Id. at 526, 898 N.E.2d at 692.
123. Id. at 527, 898 N.E.2d at 693.
124. Id. at 527–28, 898 N.E.2d at 963.
125. Id. at 527, 898 N.E.2d at 693.
126. Id. at 527–28, 898 N.E.2d at 693.
127. Id. at 528, 898 N.E.2d at 694.
of serious harm was lacking.128 The court found that the testimony of thepsychiatrist was based on the factual basis of the petition and was hearsay.129There was no evidence of anyone being in harm’s way, and the only firsthandknowledge included in this testimony contradicted the allegations in thepetition.130 1. Poindexter v. State, ex. rel. Department of Human Services131 Community spouses of nursing home residents filed a complaint for injunctive and declaratory relief against the State, arguing that the State wasillegally attempting to collect support from them for the support of theirinstitutionalized spouses.132 State law provides spousal support for the amountthe community spouse’s income exceeds the minimum monthly maintenanceneeds allowance established pursuant to the Medicare Catastrophic CoverageAct of 1988 (MCCA).133 It was argued by the community spouses that federallaw (MCCA) preempts the ability of a state to seek this spousal support in thatit does not distinguish between eligibility and post-eligibility support.134 TheState argued that preemption did not apply and, further, that the plaintiffs hadfailed to exhaust their administrative remedies.135 The trial court found infavor of plaintiffs.136 The State appealed.137 The appellate court held that because the issue is one of law only, it is not within the expertise of any administrative agency, and the plaintiffs were notrequired to exhaust administrative remedies.138 It was further held thatpreemption did not apply.139 The trial court was reversed.140 128. Id. at 529, 898 N.E.2d at 694.
129. Id. at 529, 898 N.E.2d at 695.
130. Id. at 530, 898 N.E.2d at 695.
131. Poindexter v. State, ex rel. Dep’t of Human Serv., 229 Ill. 2d 194, 890 N.E.2d 410 (2008).
132. Id. at 201–02, 890 N.E.2d at 416.
133. Id. at 200–01, 890 N.E.2d at 415.
134. Id. at 202, 890 N.E.2d at 416.
135. Id.
136. Id. at 204, 890 N.E.2d at 417.
137. Id.
138. Id.
139. Id. at 204, 890 N.E.2d at 417–18.
140. Id. at 204, 890 N.E.2d at 417.
It is useful to also consider the appellate court decision.141 In its analysis, the appellate court found that there is no express preemption.142 There is noimplied preemption in part due to the very nature of the federal Medicaid lawsbeing an example of “cooperative federalism” with both the federal and stategovernments setting policy.143 Finally, it could not be said that it is impossibleto comply with both the federal and state laws or that the state law stands asan obstacle to accomplishing the intent of Congress.144 The court relied on itsdetermination that the MCCA is for the purpose of determining eligibility (asopposed to post-eligibility issues); on pronouncements from the U.S. SupremeCourt that the Medicaid eligibility provisions do not affect familyresponsibility laws and the MCCA did not address that pronouncement exceptfor eligibility purposes; on the protections of the community spouse eligibilityrules; on the deference to be given to an agency’s interpretation of its ownregulations (and the State Medicaid Manual from CMS makes it clear thatthere was no preemption); and on determinations of other states recognizingsimilar support obligations.145 Leave to appeal was granted.146 In its decision, the Illinois Supreme Court set forth an excellent summary of relevant federal Medicaidprovisions.147 The history and purpose of community spouse protections aredetailed.148 The Court then addressed defendants’ argument that plaintiffs hadfailed to exhaust administrative remedies.149 In reviewing the exhaustiondoctrine, the Court held that a party challenging the validity of a statute on itsface is not required to exhaust administrative remedies.150 There were noallegations that the defendants misapplied the statute or regulation at issue orapplied it in an arbitrary manner.151 The complaint alleges Illinois' provisionsconflict with federal law in violation of the United States Constitution.152 Thecase falls squarely within an exception to the exhaustion requirement.153 141. Poindexter v. State, ex rel. Dep’t of Human Serv., 372 Ill. App. 3d 1021, 869 N.E.2d 139 (4th Dist.
142. Id. at 1027, 869 N.E.2d at 145.
143. Id. at 1027, 869 N.E.2d at 146.
144. Id.
145. Id. at 1028–35, 869 N.E.2d at 146–52.
146. Id. at 204, 890 N.E.2d at 418.
147. Id. at 196–201, 890 N.E.2d at 413–16.
148. Id.
149. Id. at 205, 890 N.E.2d at 418.
150. Id. at 207, 890 N.E.2d at 419.
151. Id. at 208, 890 N.E.2d at 419.
152. Id.
153. Id.
The Court next considered plaintiffs’ arguments of preemption.154 Under the supremacy clause of the United States Constitution, state law is preemptedunder three circumstances: (1) when the express language of a federal statuteindicates an intent to preempt state law; (2) when the scope of a federalregulation is so pervasive that it implies an intent to occupy a field exclusively;and (3) when state law actually conflicts with federal law.”155 The Court didnot seriously consider the first two circumstances, stating that plaintiffsaddressed these issues in their brief with “little more than one sentenceconclusions” when the court is entitled to have issues clearly defined withrelevant authority cited.156 The Court focused on the argument that the state law actually conflicts with federal law.157 Plaintiffs claimed that the relevant federal statute, 42U.S.C. §1396r–5(b)(1), prohibits the collection of spousal support.158Defendants argued that this statute only applies to determinations of Medicaideligibility, not to the collection of support from a community spouse.159 The Court found that the federal provisions on community spouse protections consistently refer to language of eligibility and circumstances ofwhen the income of the community spouse falls below the minimum monthlymaintenance needs allowance.160 The Court concluded that the state lawprovisions were not preempted.161 The appellate court decision wasaffirmed.162 By the time the Illinois Supreme Court had issued its opinion in this matter, Mark W. had been a part of the juvenile court system for more thaneight years.164 Mark’s mother, Delores, was the ward in a guardianshipproceeding.165 Delores’ mother, Amy, was appointed her plenary guardian in 154. Id. at 209, 890 N.E.2d at 420.
155. Id. at 210, 890 N.E.2d at 421.
156. Id.
157. Id. at 211, 890 N.E.2d at 421.
158. Id.
159. Id.
160. Id. at 214, 890 N.E.2d at 423.
161. Id. at 216, 890 N.E.2d at 424.
162. Id. at 216–17, 890 N.E.2d at 424.
163. In re Mark W., 228 Ill. 2d 365, 888 N.E.2d 15 (2008).
164. Id. at 367–68, 888 N.E.2d at 16–17.
165. Id. at 367, 888 N.E.2d at 16.
1997.166 Mark was born to Delores in 1998 and was taken into DCFS custodyin 1999.167 Following the filing of a petition for adjudication of wardship andvarious proceedings and delays, the petition came before the court for hearingin October 2000.168 Responding to statements that Amy had been unable toretain private counsel for Delores, the trial court announced its intent toappoint attorney Ray Morrissey as both attorney and guardian ad litem forDelores.169 Morrissey interviewed Delores and Amy and then reported back to the court, indicating that upon telling Amy that there may be a conflict betweenwhat he felt was in Delores’ best interest and what Amy felt was in her bestinterest, Amy stated she did not want Morrissey representing Delores.170 Thetrial court proceeded to appoint Morrissey as GAL for Delores, grantingadditional time for Amy to hire an attorney for Delores.171 After various other proceedings and delays, an adjudicatory hearing was held in January 2003.172 Mark was found abused and neglected.173 After adispositional hearing in March 2003, Mark was made a ward of the court andthe DCFS guardian administrator was appointed as guardian for Mark.174 In2004, the state petitioned for appointment of a guardian with the right toconsent to adoption.175 At the termination hearing in November 2004,Morrissey informed the court that he felt it would be in Delores’ best intereststo have her parental rights terminated.176 Parental rights were terminated bywritten order in July 2005.177 Amy, as plenary guardian, appealed.178 She raised four issues on appeal.179 The appellate court did not address any of these issues and insteadraised, sua sponte, the issue of whether the appointment of Morrissey as GALwas appropriate.180 The appellate court concluded that it was not, becauseMorrissey revealed confidential information from his initial conversation with 166. Id.
167. Id. at 367, 888 N.E.2d at 17.
168. Id. at 368, 888 N.E.2d at 17.
169. Id.
170. Id. at 369, 888 N.E.2d at 17.
171. Id.
172. Id. at 370, 888 N.E.2d at 18.
173. Id.
174. Id. at 370–71, 888 N.E.2d at 18.
175. Id. at 371, 888 N.E.2d at 18.
176. Id. at 371–72, 888 N.E.2d at 19.
177. Id. at 372, 888 N.E.2d at 19.
178. Id.
179. Id.
180. Id. at 373, 888 N.E.2d at 19.
Amy and Delores and because he had an actual conflict of interest.181 Leaveto appeal to the Supreme Court was granted.182 The Supreme Court addressed two issues: (1) whether the circuit courts have the authority to appoint a guardian ad litem for a mentally disabled parentduring a termination of parental rights hearing, when the parent already has aplenary guardian of the person; and (2) whether the trial court order must bereversed because Morrissey revealed confidential information and wasoperating under a conflict of interest.183 As to the first issue, the Court concluded that while there was no direct statutory authority on the issue, it had “little difficulty concluding that thecircuit court had the authority to appoint a guardian ad litem to make arecommendation to the court as to what was in Delores' best interests.”184 Theward remains under the jurisdiction of the court, even after a plenary guardianis appointed.185 Since the court has a duty to step in if a guardian is about todo something of harm to a ward, the court’s authority is not limited to expressstatutory authority.186 Further, there was no need to first revoke the plenaryguardian’s letters of office.187 Just because a court feels it necessary to appointa GAL for a recommendation of a ward’s best interests, it does not necessarilyfollow that the guardian is unfit or must be discharged.188 As to the second issue, the Court disagreed that Morrissey must necessarily have obtained protected information during his initial interviewwith Amy and Delores.189 Further, Amy did not object to Morrissey’sappointment in the circuit court.190 He did not have an actual conflict, as hewas never actually appointed as Delores’ attorney.191 With nothing in therecord to establish an attorney-client relationship, there was no conflict.192 The Supreme reversed the decision of the appellate court, remanding to the appellate court to address the issues originally raised by Amy.193 181. Id. at 373, 888 N.E.2d at 19–20.
182. Id. at 373, 888 N.E.2d at 20.
183. Id.
184. Id. at 375, 888 N.E.2d at 21.
185. Id.
186. Id.
187. Id. at 377, 888 N.E.2d at 22.
188. Id.
189. Id. at 379, 888 N.E.2d at 23.
190. Id.
191. Id. at 380, 888 N.E.2d at 24.
192. Id.
193. Id. at 381, 888 N.E.2d at 24.
On remand from the Illinois Supreme Court, the First District appellate court provided a comprehensive factual summary of the trial courtproceedings195 before concluding that the trial court’s decision termination ofDelores’ parental rights was not against the manifest weight of the evidence.196 Amy also raised an issue that had not been previously raised.197 Amy claimed that the trial court lacked jurisdiction to terminate Delores’ parentalrights because, as plenary guardian, it was she who had legal custody of Markpursuant to section 11a–17 of the Probate Act.198 The court declined to applythe waiver issue and instead addressed this new issue.199 The court rejected Amy’s argument that she gained legal custody of Mark upon appointment as Delores’ guardian.200 Section 11a–17 begins with thephrase “to the extent ordered by the court” before stating that a guardian haslegal custody of the ward’s minor children.201 As a rule of statutoryconstruction, this language must be given its plain meaning and, because thetrial court never entered an order granting Amy legal custody of Mark (theonly custody order entered appointed the DCFS guardianship administrator),there is no basis to her claim that she was entitled to a temporary custodyhearing.202 The guardian petitioned the court, seeking authority for an involuntary sterilization of her ward.204 The guardian claimed that the ward was sexuallyactive but unable to appreciate the risk and consequences of pregnancy.205With negative side effects from contraception injections, the guardian allegedthat a tubal ligation was the best means to prevent a pregnancy.206 194. In re Mark W., 383 Ill. App. 3d 572, 895 N.E.2d 925 (1st Dist. 2008).
195. Id. at 574–83, 895 N.E.2d at 927–34.
196. Id. at 583–87, 895 N.E.2d at 934–38.
197. Id. at 587–88, 895 N.E.2d at 938.
198. Id.; 755 ILL. COMP. STAT. 5/11a–17.
199. Id. at 588, 895 N.E.2d at 938.
200. Id. at 589, 895 N.E.2d at 939.
201. Id. at 588, 895 N.E.2d at 938–39.
202. Id. at 588–89, 895 N.E.2d at 939.
203. In re Estate of K.E.J., 382 Ill. App. 3d 401, 887 N.E.2d 704 (1st Dist. 2008).
204. Id. at 403, 887 N.E.2d at 708.
205. Id. at 404, 887 N.E.2d at 709.
206. Id.
Following an extensive hearing, the petition was denied.207 The guardian appealed on the merits and as to various rulings on the award of attorney feesfor both trial and appellate work.208 In a case of first impression in Illinois, the court emphasized the privacy rights at stake: the right to bear children and the right of personalinviolability.209 These rights are not absolute, however.210 Relying on casesfrom other states, section 11a–17(a) and (e) of the Probate Act, and priorIllinois case law on substituted judgment, the court set forth guidelines fordetermining whether a ward could be involuntarily sterilized.211 The sameguidelines are to apply whether the ward is male or female.212 The court is to first look for clear and convincing evidence of whether the ward, if competent, would have wished to be sterilized.213 If such evidenceexists, then those wishes control.214 If there is no such evidence, then the courtmay grant the petition for involuntary sterilization only if it is proven by clearand convincing evidence that the sterilization is in the ward’s best interest.215 In the present case, the court did not find sufficient evidence as to the ward’s wishes, if competent.216 Thus, the court turned to a review of theward’s best interests.217 The court is to consider six factors in making adetermination as to best interests: the possibility of psychological damage ortrauma from either childbirth or sterilization; the ward’s level of sexualactivity; the ward’s understanding of reproduction and contraception; thelikelihood of improvement of the ward’s cognitive condition; the ability of theward to take care of a child; and the good faith of the petitioner.218 The courtdid not find clear and convincing evidence that the sterilization was in theward’s best interests.219 The trial court’s decision was affirmed based on thepresence of less intrusive and less psychologically harmful alternatives to atubal ligation.220 207. Id. at 405–10, 887 N.E.2d at 710–14.
208. Id. at 411, 887 N.E.2d at 714.
209. Id. at 411, 887 N.E.2d at 715.
210. Id. at 413, 887 N.E.2d at 716.
211. Id. at 415–17, 887 N.E.2d at 717–719; 755 ILL. COMP. STAT. 5/11a–17(a) and (e).
212. Id. at 418, 887 N.E.2d at 720.
213. Id. at 418–19, 887 N.E.2d at 720.
214. Id.
215. Id. at 419, 887 N.E.2d at 720–21.
216. Id. at 420–21, 887 N.E.2d at 722.
217. Id. at 421, 887 N.E.2d at 722.
218. Id. at 416–17, 421, 887 N.E.2d at 718–19, 722.
219. Id. at 422, 887 N.E.2d at 723.
220. Id.
The appellate court affirmed the trial court’s denial of attorney fees on appeal and remanded on the issue of trial court attorney fees, directing the trialcourt to conduct a cost-benefit analysis.221 The decedent died in 2006, survived by three minor children.223 The mother of the children and the decedent were never married.224 Decedent’ssister filed a petition seeking appointment as independent administrator of theestate and was subsequently appointed as administrator to collect.225 Themother was then appointed as guardian for the children.226 The mother wasgranted leave to file a cross-petition for appointment as administrator.227 Thesister objected, arguing that under section 9–3 of the Probate Act, the motheras guardian may have a preference to nominate an administrator on behalf ofthe children, but the person nominated must be on the preference list.228 Thecourt granted the guardian’s cross-petition and appointed the guardian asadministrator. The sister appealed.229 Section 9–3 lists categories of persons entitled to preference in obtaining appointment as administrator of an estate.230 The third category in line is “thechildren or any person nominated by them.”231 The sixth category is “thebrothers and sisters or any person nominated by them.”232 Section 9–3 thengoes on to state that the guardian of a person “who is not qualified to act asadministrator solely because of minority * * * may nominate on behalf of theminor * * * in accordance with the order of preference set forth in thisSection.”233 The court concluded that the guardian, representing the minorchildren, was entitled to nominate an administrator, including herself.234 There 221. Id. at 426, 887 N.E.2d at 726.
222. In re Cage, 381 Ill. App. 3d 110, 885 N.E.2d 477 (1st Dist. 2008).
223. Id. at 111, 885 N.E.2d at 477.
224. Id.
225. Id. at 111, 885 N.E.2d at 477–78.
226. Id. at 111, 885 N.E.2d at 478.
227. Id.
228. Id. at 112, 885 N.E.2d at 478; 755 ILL. COMP. STAT. 5/9–3.
229. In re Cage, 381 Ill. App. 3d at 112, 885 N.E.2d at 478.
230. Id. at 113, 885 N.E.2d at 479; 755 ILL. COMP. STAT. 5/9–3.
231. In re Cage, 381 Ill. App. 3d at 113, 885 N.E.2d at 479.
232. Id.
233. Id.
234. Id. at 113–14, 885 N.E.2d at 479–80.
was nothing in the plain language of the statute requiring that the personnominated fall within one of the categories of Section 9–3.235 Grace Ellis died at age eighty-six, leaving a multi-million dollar estate.238 A 1964 will named her now deceased parents as primary beneficiaries and herdescendants and Shriners Hospital as contingent beneficiaries.239 She left nodescendants.240 A 1999 will omitted the prior beneficiaries and namedrespondent, James Bauman, as sole beneficiary and executor.241 The 1999 willwas admitted to probate.242 Notice was given to two cousins of Ellis and twelve of the cousins’ children and grandchildren.243 Two cousins sued but settled with the estate.244Shriners initiated a will contest almost three years after the will was admittedto probate.245 The will contest alleged, in relevant part, tortious interferencewith an expected inheritance.246 Bauman moved to dismiss that will contestas being time barred pursuant to the six month limitations period of section8–1 of the Probate Act, and the motion was granted.247 Shriners appealed.248 Shriners claimed on appeal that, as a tort, its claim was not barred as a will contest under section 8–1.249 The appellate court disagreed, finding nobasis to bar a claim that could be brought as a will contest while allowing it ifframed as a tort.250 Regardless of how styled, Shriners’ claim was at heart awill contest.251 235. Id. at 114, 885 N.E.2d at 480.
236. Id. at 115, 885 N.E.2d at 480.
237. In re Estate of Ellis, 381 Ill. App. 3d 427, 887 N.E.2d 467 (1st Dist. 2008).
238. Id. at 428, 887 N.E.2d at 468.
239. Id.
240. Id.
241. Id.
242. Id. at 428–29, 887 N.E.2d at 468.
243. Id. at 429, 887 N.E.2d at 468.
244. Id.
245. Id.
246. Id. at 429, 887 N.E.2d at 468–69.
247. Id. at 429, 887 N.E.2d at 469; 755 ILL. COMP. STAT. 5/8–1.
248. In re Estate of Ellis, 381 Ill. App. 3d 427, 429, 887 N.E.2d 467, 469 (1st Dist. 2008).
249. Id. at 430, 887 N.E.2d at 470.
250. Id. at 431, 887 N.E.2d at 470–71.
251. Id. at 435, 887 N.E.2d at 473.
Max and Erla Feinberg established trusts prior to their deaths in 1986 and 2003, respectively.253 They were survived by two children and fivegrandchildren.254 All five grandchildren were married, but only one wasmarried to a person of the Jewish faith, by birth or conversion.255 Max’s truststated that a “descendant of mine other than a child of mine who marriesoutside the Jewish faith (unless the spouse of such descendant has convertedor converts within one year of the marriage to the Jewish faith) and his or herdescendants shall be deemed to be deceased for all purposes of this instrumentas of the date of such marriage.”256 Multiple cases involving the trusts and Max and Erla’s estates were consolidated in the trial court, and during the course of the litigation, thevalidity of the marriage clause was called into question.257 The trial court ruledthat the clause was invalid as against public policy.258 The appellate courtconsidered the question on interlocutory appeal.259 The appellate court noted that Illinois courts have repeatedly affirmed the principle that testamentary provisions that discourage marriage or encouragedivorce are invalid.260 After reviewing several of these prior cases and thesimilarities with the present case, the court then observed that other states arenot uniform in invalidating these provisions.261 With the Restatement Thirdof Trusts and significant Illinois authority behind it, though, the appellate courtaffirmed the ruling of the trial court.262 Justice Quinn specially concurred, pointing out the age of cases allowing “partial restraint” of marriages, the more recent authority of the Restatement,and the practical issues that could result from enforcing such marriageclauses.263 Acknowledging that a majority of jurisdictions allow partialrestraint of marriage if reasonable, the concurring opinion seems concernedwith where that slippery slope might lead.264 252. In re Estate of Feinberg, 383 Ill. App. 3d 992, 891 N.E.2d 549 (1st Dist. 2008).
253. Id. at 993, 891 N.E.2d at 549.
254. Id. at 993, 891 N.E.2d at 549–50.
255. Id. at 994, 891 N.E.2d at 550.
256. Id.
257. Id.
258. Id.
259. Id.
260. Id. at 994–95, 891 N.E.2d at 550–51.
261. Id. at 995–96, 891 N.E.2d at 551–52.
262. Id. at 996–97, 891 N.E.2d at 552.
263. Id. at 997–98, 891 N.E.2d at 553 (Quinn J., specially concurring).
264. Id. at 997–1000, 891 N.E.2d at 553–55.
Justice Greiman dissented.265 Seeing the marriage clause as a way of preserving a 4,000 year old heritage, the dissent criticizes the majority forrelying on Illinois cases where descendants would be disinherited if remainingmarried to their current spouse (thereby encouraging divorce).266 Afterreviewing cases from other jurisdictions, the dissent concludes that “the greatweight of authority as to cases which have considered this subject have heldsuch provisions as it appears in the case at bar to be reasonable and notcontrary to the state's public policy.”267 The Illinois Supreme has granted a Petition for Leave to Appeal in this case, so further developments can be expected.268 Claimants filed a statutory custodial claim for $200,000 against Hale’s estate, pursuant to 755 ILCS 5/18–1.1.270 Following a hearing, the trial courtawarded claimants, the daughter and son-in-law of decedent, $100,000 less$50,000 paid to claimants during decedent’s life as guardian fees.271 On appeal, claimants contend that the trial court erred in only considering three years of care provided to Hale.272 Testimony indicated that claimantscared for Hale for 9½ years.273 755 ILCS 5/18–1.1 provides minimum awards(based on the percentage of decedent’s disability) when a defined familymember lives with and personally cares for the decedent for at least threeyears.274 The amount of the claim award is based on the nature and extent ofdisability and is in addition to any other claims, including claims for nursingcare.275 The trial court misinterpreted the statute in considering only threeyears of the care provided in making the award.276 This is not in the nature ofa statute of limitations but is just a minimum prerequisite to eligibility for theaward.277 265. Id. at 1000; 891 N.E.2d at 555 (Greiman, J., dissenting).
266. Id.
267. Id. at 1004, 891 N.E.2d at 558.
268. In re Estate of Feinberg, 229 Ill. 2d 667, 900 N.E.2d 1118 (2008) (cert. granted).
269. In re Estate of Hale, 383 Ill. App. 3d 559, 890 N.E.2d 1244 (1st Dist. 2008).
270. Id. at 560, 890 N.E.2d at 1245.
271. Id. at 561, 890 N.E.2d at 1245.
272. Id.
273. Id. at 560–61, 890 N.E.2d at 1244–45.
274. Id. at 562, 890 N.E.2d at 1246–47; 755 ILL. COMP. STAT. 5/18–1.1.
275. Hale, 383 Ill. App. 3d at 562, 890 N.E.2d at 1246–47.
276. Id. at 563–64, 890 N.E.2d at 1247–48.
277. Id.
As the statute specifically states that the statutory custodial claim is in addition to all other claims, it was also error to offset the award by the amountof fees received as guardians.278 The trial court was reversed and remanded.279 Charles Ray Hoch died in New Orleans, survived by his mother and several siblings.281 His brother, Michael, was appointed independentadministrator of Charles’ estate based on a petition filed in Louisiana thatacknowledged the existence of a purported will but claimed it was not valid.282The purported will left Charles’ estate to his companion, Michelle Girardin.
Girardin subsequently filed a petition for letters testamentary in ChampaignCounty, Illinois.283 The purported will was admitted to probate and Girardinwas appointed as executor.284 The Louisiana proceedings were not referencedin the petition.285 Michael filed for a temporary restraining order and preliminary injunction, for revocation of Girardin’s letters of office, and for the vacatingof the order admitting the will to probate.286 The trial court granted themotions, sua sponte relying on 735 ILCS 5/2–619(a)(3) to dismiss the orderadmitting the will and revoke the letters of office.287 On appeal, Girardinclaims that the sua sponte dismissal deprived her of her due process rights tonotice and an opportunity to present her case.288 The appellate court affirmed, relying on Section 2–619(a)(3) of the Code of Civil Procedure.289 This provision allows dismissal of a cause if there isanother action pending between the same parties for the same cause.290 Toavoid duplicative litigation, the court is to consider factors such as comity, theprevention of multiplicity, vexation, and harassment, the likelihood of 278. Id. at 564–65, 890 N.E.2d at 1248. 279. Id.
280. In re Estate of Hoch, 382 Ill. App. 3d 866, 892 N.E.2d 30 (4th Dist. 2008).
281. Id. at 867, 892 N.E.2d at 32.
282. Id.
283. Id.
284. Id. at 868, 892 N.E.2d at 32–33.
285. Id. at 868, 892 N.E.2d at 32.
286. Id. at 868, 892 N.E.2d at 33.
287. Id.
288. Id.
289. Id. at 869–71, 892 N.E.2d at 34–35; 735 ILL. COMP. STAT. 5/2–619(a)(3).
290. In re Estate of Hoch, 382 Ill. App. 3d 866, 869, 892 N.E.2d 30, 33 (4th Dist. 2008).
obtaining complete relief in a foreign jurisdiction, and the res judicata effectof a foreign judgment in the local forum. These factors favored dismissal.291 Girardin argued that Section 2–619 should not override the provisions of the Probate Act concerning the place of probate and administration ofestates.292 The court found that application of the Probate Act was notmandated under the circumstances presented here.293 In part due to the factthat Michael’s Louisiana action was filed first, the Illinois proceedings wereproperly dismissed.294 Petitioner, the mother of decedent’s two minor children, filed for child’s awards pursuant to the Probate Act,296 and for unpaid and future child supportpursuant to the Marriage and Dissolution of Marriage Act.297 The trial courtallowed the child’s awards in the minimum amount required of $20,000($10,000 for each child).298 The trial court found that decedent owed $3,299in past due child support as of date of death, and that future support of $19,656would be due through emancipation.299 The court then held that the respectiveprovisions of the Probate Act and the Marriage and Dissolution of MarriageAct are to be applied “without duplication,” effectively allowing an offset forthe child’s award against the future support.300 The appellate court reversed.301 While the trial court apparently found the two statutory provisions to be duplicative and conflicting, the use of theterm “support” in the child’s award statute is not the same as “child support”under the Marriage and Dissolution of Marriage Act.302 The child’s award iscompletely independent of any dissolution of marriage or lifetime award ofsupport, and an offset is not required under these statutes.303 291. Id.
292. Id. at 870, 892 N.E.2d at 34.
293. Id.
294. Id. at 870–71, 892 N.E.2d at 35.
295. In re Estate of Hudson, 385 Ill. App. 3d 1112, 896 N.E.2d 1123 (5th Dist. 2008).
296. Id. at 1113, 896 N.E.2d at 1124; 755 ILL. COMP. STAT. 5/15–2(b).
297. Hudson, 385 Ill. App. 3d at 1113, 896 N.E.2d at 1124; 750 ILL. COMP. STAT. 5/510(d).
298. Hudson, 385 Ill. App. 3d at 1114, 896 N.E.2d at 1125.
299. Id.
300. Id.
301. Id. at 1117, 896 N.E.2d at 1127.
302. Id. at 1115–16, 896 N.E.2d at 1126.
303. Id. at 1116, 896 N.E.2d at 1126.
The record before the appellate court was incomplete, however, in determining whether equity might call for an offset.304 The cause wasremanded to the trial court to determine whether to enforce, modify, revoke,or commute child support as equity may require.305 Herbert Landheer died in 2003, survived by his three sons, Warren, Mark and Arlyn.307 Herbert and his spouse had signed a joint revocable trust in 1996which would distribute 320 acres of real estate to Warren upon his payment tohis brothers of two-thirds of the appraised value of the farm.308 Shortly beforeHerbert’s death, after a discussion between Herbert and Warren, a purportedtrust amendment was prepared and typed by Warren and his wife.309 Thedocument, entitled a “Last Will and Testament,” set a purchase price for thereal estate and named Warren as sole executor.310 Testimony from Warren indicated that he prepared this document at his father’s request, though he admitted that his father had not requested theappointment of Warren as sole executor.311 Warren stated that this wasintended as an amendment to the trust, but he just did not know what to callthe document.312 Cross-petitions for declaratory judgment were filed, with Mark and Arlyn as plaintiffs and Warren as defendant.313 Plaintiffs moved for dismissal ofdefendant’s cross-petition on the basis that the purported amendment violatedsection 2BB of the Consumer Fraud and Deceptive Business Practices Act.314The trial court granted this motion.315 Section 2BB provides that the “assembly, drafting, execution, and funding of a living trust document or any of those acts by a corporation or anonlawyer is an unlawful practice within the meaning of this Act.”316 Warrenargued that this did not apply to an amendment of a living trust, but the 304. Id. at 1117, 896 N.E.2d at 1127.
305. Id.
306. Landheer v. Landheer, 383 Ill. App. 3d 317, 891 N.E.2d 975 (3d Dist. 2008).
307. Id. at 318–19, 891 N.E.2d at 976–77.
308. Id. at 318, 891 N.E.2d at 977.
309. Id. at 318–19, 891 N.E.2d at 977.
310. Id.
311. Id. at 319–20, 891 N.E.2d at 977–78.
312. Id. at 319, 891 N.E.2d at 978.
313. Id. at 318, 891 N.E.2d at 976.
314. Id.; 815 ILL. COMP. STAT. 505/2BB.
315. Landheer, 383 Ill. App. 3d at 318, 891 N.E.2d at 976.
316. Id. at 321, 891 N.E.2d at 978; 815 ILL. COMP. STAT. 505/2BB.
appellate court disagreed; the plain language of the statute applies toamendments.317 Warren also argued that he was just serving as a scrivener for his father.318 Since the prohibitions of section 2BB do not prohibit someone fromdrafting their own living trust documents (a proposition with which theappellate court agreed), and since he was just following his father’s directions,Warren argued, the preparation of the amendment did not fall within theprohibitions of section 2BB.319 The appellate court disagreed, as Warrenadmitted his father had never mentioned the provisions of section 2BB, and hedid more than just act as a scrivener.320 The trial court’s dismissal wasaffirmed.321 Decedent bequeathed to Donald and Virginia Wolland her two residences “and the contents thereof,” including all “personal and chattel property.”323The executor sought instructions from the court regarding what should be doneabout stock certificates found in one of decedent's homes, as well as paymentof the 2005 and 2006 real estate taxes on the residences.324 The trial courtruled that the proceeds from the stock certificates would not go to theWollands and that the Wollands were responsible for paying the real estatetaxes.325 While no Illinois court has construed the phrase “personal and chattel property,” these terms have been individually and consistently construed torefer to tangible property only.326 This is especially true when the property isdescribed by location, as was done here.327 Based on the plain language of thisbequest, then, the trial court was correct in its ruling as to the stockcertificates.328 317. Landheer, 383 Ill. App. 3d at 321–22, 891 N.E.2d at 978–79.
318. Id. at 322, 891 N.E.2d at 979–80.
319. Id.
320. Id.
321. Id. at 322, 891 N.E.2d at 980.
322. In re Estate of Light, 385 Ill. App. 3d 196, 895 N.E.2d 43 (3d Dist. 2008).
323. Id. at 197, 895 N.E.2d at 44.
324. Id.
325. Id. at 198, 895 N.E.2d at 45.
326. Id. at 199, 895 N.E.2d at 46.
327. Id. at 200, 895 N.E.2d at 46.
328. Id. at 200, 895 N.E.2d at 47.
Decedent’s will also directed that “all taxes assessed or imposed against my estate or against a beneficiary of my estate” be paid by the executor.329Real estate taxes are assessed against the real estate, not against the estate ora beneficiary.330 Thus, the trial court correctly held that the Wollands wereresponsible for the real estate taxes assessed against the residences theyreceived.331 Wife filed suit against decedent husband’s estate for breach of contract and an accounting, all related to terms of a pre-nuptial agreement deeming thehusband’s lifetime earnings as joint funds.333 The estate moved for dismissalbased on a two year statute of limitations.334 The trial court granted themotion.335 The Illinois Probate Act imposes a two year statute of limitations on claims against a decedent’s estate.336 The wife argued that her suit was not aclaim against the estate as a creditor but merely a suit seeking enforcement ofrights granted under the will.337 Thus, she argued, the statute of limitations didnot apply.338 However, the Probate Act defines a claim to include any causeof action.339 Since the wife’s complaint stated a cause of action (for breach ofcontract and for accounting), the limitations period was applicable.340 Thewife argued that she was just seeking to enforce rights under the will (whichincorporated the pre-nuptial agreement by reference).341 However, she did notframe her complaint as a claim under the will.342 Further, a letter directed tothe attorney for the estate prior to the expiration of the statute of limitations,threatening to file a claim, did not meet the requirements for the filing of aclaim.343 329. Id. at 201, 895 N.E.2d at 47.
330. Id.
331. Id.
332. Polly v. Estate of Polly, 385 Ill. App. 3d 300, 896 N.E.2d 350 (1st Dist. 2008).
333. Id. at 300–01, 896 N.E.2d at 351–52.
334. Id. at 301, 896 N.E.2d at 352.
335. Id.
336. Id.; 755 ILL. COMP. STAT. 5/18–12.
337. Polly, 385 Ill. App. 3d at 302, 896 N.E.2d at 352.
338. Id.
339. Id.; 755 ILL. COMP. STAT. 5/1–2.05.
340. Polly, 385 Ill. App. 3d at 303, 896 N.E.2d at 353.
341. Id.
342. Id.
343. Id. at 304, 896 N.E.2d at 354.
William and Dolores Ranger executed a joint trust prior to William’s death.345 Dolores, as trustee, sought declaratory relief in interpreting thetrust.346 At issue was a “special directive” of the trust that primarily addressedWilliam’s business.347 The business, with various conditions or restrictions,was to pass to one of William’s sons.348 That son contended the distributionwas to take place immediately, while Dolores proposed that the businessinterest be held in trust, and through the trust she would receive the income ofthe business.349 The trial court granted a motion for summary judgment filedby the son.350 The appellate court construed the language of the trust and concluded that the relevant provisions do not take effect until Dolores’ death as survivingsettlor.351 The matter was reversed and remanded.352 Pamela and Edward had two children prior to their divorce.354 Their marital settlement agreement required each of them to maintain their childrenas beneficiaries of all retirement plans, pension plans and death benefits.355Pamela died in 2006, leaving her entire estate in trust for her children.356 Shewas also insured under a life insurance policy that still named Edward asbeneficiary.357 The policy paid $100,000 as what the policy termed a deathbenefit.358 Pamela’s executor sought a constructive trust on the proceeds infavor of the children.359 344. Ranger v. Ranger, 379 Ill. App. 3d 752, 883 N.E.2d 750 (4th Dist. 2008).
345. Id. at 754, 883 N.E.2d at 751.
346. Id. at 752, 883 N.E.2d at 751.
347. Id.
348. Id. at 755, 883 N.E.2d at 753.
349. Id. at 754–55, 883 N.E.2d at 752–53.
350. Id. at 755, 883 N.E.2d at 753.
351. Id. at 758–59, 883 N.E.2d at 755–56.
352. Id. at 759, 883 N.E.2d at 756.
353. In re Estate of Trevino, 381 Ill. App. 3d 553, 886 N.E.2d 530 (2d Dist. 2008).
354. Id. at 554, 886 N.E.2d at 532.
355. Id. at 554–55, 886 N.E.2d at 532.
356. Id. at 555, 886 N.E.2d at 532.
357. Id.
358. Id.
359. Id.
The trial court ruled that the proceeds constituted a “death benefit” covered by the marital settlement agreement provision.360 The insurer wasordered to pay the proceeds to the guardian of the children.361 Edwardappealed.362 While the imposition of a constructive trust is normally within the discretion of the trial court, the controlling issue was one of interpreting themarital settlement agreement; that issue was reviewed de novo.363 Theappellate court concluded that the language of the agreement unambiguouslyrequired the parties to name their children as beneficiaries of their lifeinsurance policies, as the term “death benefit” is commonly understood toapply to the proceeds of life insurance policies and the agreement referred to“any and all” death benefits.364 The decision of the trial court was affirmed.365 Ward was convicted of theft and ordered to pay restitution to the estate in the amount of $320,000.367 The estate brought a citation proceeding againstWard’s former fiancé, seeking to recover property he held of Ward’s, sinceWard was in turn indebted to the estate.368 The record did not clearly reflectwhether the citation proceedings were brought pursuant to section 2–1402 ofthe Code of Civil Procedure369 or section 16–1 of the Probate Act.370 The trialcourt ordered the property turned over to the sheriff for sale.371 On appeal, the court concluded that, regardless of which section governed the citation proceedings filed, the trial court order was in error.372 Ifproceeding under section 2–1402, the underlying judgment must beenforceable.373 Here, the restitution order was not enforceable because it didnot specify a time for repayment as required.374 360. Id. at 555–56, 886 N.E.2d at 532–33.
361. Id.
362. Id.
363. Id. at 556, 886 N.E.2d at 533.
364. Id. at 556–57, 886 N.E.2d at 533–34.
365. Id. at 557, 886 N.E.2d at 534.
366. In re Estate of Yucis, 382 Ill. App. 3d 1062, 890 N.E.2d 964 (2d Dist. 2008).
367. Id. at 1063, 890 N.E.2d at 966.
368. Id. at 1063–64, 890 N.E.2d at 966.
369. Id. at 1064, 890 N.E.2d at 966; 735 ILCS 5/2–1402.
370. Id.; 755 ILL. COMP. STAT. 5/16–1.
371. In re Estate of Yucis, 382 Ill. App. 3d at 1064, 890 N.E.2d at 966.
372. Id. at 1069, 890 N.E.2d at 970.
373. Id. at 1067, 890 N.E.2d at 968.
374. Id. at 1067, 890 N.E.2d at 968–69.
Section 16–1 of the Probate Act also was not a proper proceeding, as these proceedings for recovery of assets are not a general collection tool forthe estate.375 A debt to the estate does not make the debtor’s property theestate’s property, and citation proceedings under section 16–1 are notappropriate.376 The trial court order was vacated and remanded withinstructions.377 In addressing section 16–1, this court urged caution in relying on cases suggesting that the citation proceedings can still be used to recover assets heldby a fiduciary or obtained by a person while acting in a fiduciary capacity.378This court hinted that this fiduciary exception still does not apply to thecollection of a debt.379 The parents of the grandchild were married but divorced.381 The mother was granted custody.382 Paternal grandparents filed a petition for grandparentvisitation pursuant to the Illinois Marriage and Dissolution of Marriage Act.383The parties agreed to allow visitation, but there was disagreement as to whenit should occur.384 Paternal grandparents wanted it to occur during themother’s custodial time, so as not to diminish the father’s visitation.385Relying on 750 ILCS 5/607(a–5)(1)(B), which states that grandparentvisitation must not reduce the visitation of the parent who is not related to thegrandparent, the trial court ordered visitation during the father’s visitationtimes.386 The grandparents argued on appeal that the use of the term “visitation” in section 607(a–5)(1)(B), as opposed to “custody”, indicates the intent thatgrandparent visitation not impose on the visitation rights of a non-custodial 375. Id. at 1068, 890 N.E.2d at 969.
376. Id.
377. Id. at 1072, 890 N.E.2d at 972.
378. Id. at 1068 n.1, 890 N.E.2d at 969 n.1.
379. Id.
380. In re Pfalzgraf, 378 Ill. App. 3d 1107, 882 N.E.2d 719 (5th Dist. 2008).
381. Id. at 1108, 882 N.E.2d at 720.
382. Id.
383. Id.; 750 ILL. COMP. STAT. 5/607(a–5).
384. In re Pfalzgraf, 378 Ill. App. 3d at 1108, 882 N.E.2d at 720.
385. Id.
386. Id. at 1108–09, 882 N.E.2d at 720; 750 ILL. COMP. STAT. 5/607(a–5)(1)(B).
parent.387 The mother argued that this statute means that the parent who is notrelated to the grandparent should not be forced to give up their time with thegrandchild.388 The appellate court disagreed with both interpretations, as each would require the court to read into the statute words that are not there.389 Instead, thecourt relied on the presumption of section 607(a–5)(3) that a fit parent’sdecisions regarding grandparent visitation are not harmful to the grandchild(and thus are in that grandchild’s best interests).390 The paternal grandparentsdid not overcome this presumption, and the trial court decision was affirmedon this basis.391 387. Pfalzgraf, 378 Ill. App. 3d at 1109, 882 N.E.2d at 720; 750 ILL. COMP. STAT. 5/607(a–5)(1)(B).
388. Pfalzgraf, 378 Ill. App. 3d at 1109, 882 N.E.2d at 720.
389. Id. at 1109–10, 882 N.E.2d at 721.
390. Id. at 1110, 882 N.E.2d at 721.
391. Id. at 1110–11, 882 N.E.2d at 722.


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