Plenary Guardian May File Divorce Petition For Disabled Adult With Court Approval

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This morning, the Illinois Supreme Court filed its unanimous opinion in Karbin v. KarbinIn an opinion by Justice Charles E. Freeman, the Court overruled its twenty-six year old decision in In re Marriage of Drews and held that the plenary guardian of a disabled adult may file a divorce petition on the ward’s behalf.

Following a 1997 car accident, appellee wife suffered brain damage and became totally disabled. Her husband was initially appointed plenary guardian of her person and estate, but he was ultimately forced to relinquish the position due to the onset of Parkinson’s disease. After the guardianship transfer, the wife left Illinois to live with her new guardian. A few years later, the husband filed a petition for divorce, and the wife subsequently filed a verified counterpetition. Some time after that, the husband moved for voluntary dismissal of his own petition, alleging that he had never wanted the divorce, and filed only upon the request of the wife’s guardian. He then successfully moved to dismiss the wife’s petition, arguing that under In re Marriage of Drews, the wife’s guardian had no standing to initiate a divorce petition on her behalf. The Appellate Court affirmed based upon Drews, with Justice Cahill dissenting.

The Supreme Court began its analysis with the decision in Drews. There, the Court had noted a strong “majority rule” holding that absent statutory authorization, a guardian could not institute a divorce proceeding. The Drews Court then analyzed the relevant provisions of the Probate Act, finding no express authorization in either. Reading all of the relevant provisions together, the Court concluded that the Probate Act confers only limited standing on the guardian in connection with matters directly related to the ward’s estate.

The Supreme Court found, however, that beginning only a few years after Drews, it had abandoned its strict construction of the Probate Act and the powers of the guardian. In both In re Estate of Longeway and In re Estate of Greenspan, the Court found expansive implied authority for guardians conferred in the Act. In In re Marriage of Burgess, the Court authorized a guardian to continue a divorce action began before the ward became disabled (although a guardian could still not initiate a divorce), noting the “broad” description of the guardian’s powers found in the Act.

The Court then turned to the history of the old majority rule, concluding that it was founded on the idea that divorce was a uniquely personal matter, often involving religious and moral precepts, and courts had accordingly been reluctant to let another speak for an incompetent adult. Given the State’s enactment of no-fault divorce, however, the Court concluded that divorce was no more uniquely personal a decision than a host of other decisions indisputably entrusted to a guardian. Further, the Court noted, denying an incompetent adult any avenue to seek divorce risked putting the ward “at the mercy of a competent spouse,” a situation incompatible with the policy of the State towards disabled persons. Accordingly, the Court unanimously overruled Drews. As an additional safeguard for disabled adults, the Court held that before filing a divorce petition, guardians must prove by clear and convincing evidence to the satisfaction of the Circuit Court that such a filing was in the best interest of the ward.

 

Topics:  Disability, Divorce, Guardians, No-Fault Divorce

Published In: Civil Procedure Updates, Family Law Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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