J.H. v. Ada S. McKinley Community Services, Inc.

FIFTH DIVISION

December 29, 2006

No. 1-05-2132

J.H. and J.D., ) Appeal from the

) Circuit Court of

Plaintiffs-Appellants, ) Cook County

)

v. )

)

ADA S. McKINLEY COMMUNITY SERVICES, INC., )

RALPH BURLINGHAM, KENNETH HONDERICH, ) Honorable

MARGARET ORTINAU, CLAUDINE ROBINSON, ) James S. Quinlan,

GALE SPENCER, VICTORIA LAWSON, CAROL ) Judge Presiding

WINN, WALTER C. McCRONE, GILBERT GAVLIN, )

URSULA HOWARD, MARY A. KLINGENBERGER, )

ROBERT S. MOORE, GREGORY McLAUGHLIN, )

MICHAEL T. HEALY, ANNA R. LANGFORD, )

SAMUEL PANAYOTOVICH, BOBBY RUSH, JESSIE C. )

WHITE, MARGARET SMITH, BYRON E. WINTON, )

RON BEAN, WILLIAM C. CAMPBELL, DEBRA )

McGEE, DRENDA LAKIN, BRODIE WESTBROOKS, )

MARIE BOYD, GLORIA BASHER, JESSICA CONNER, )

a/k/a Jessica Chambers, CHERI SMITH, GWENDOLYN )

R. GILL, MELANIE SCOTT, THERESA SPEARS, a/k/a )

Theresa Lockett, ETHEL HYLTON, RUBY E. )

ROBERTSON, BEVERLY BROWN, TOLEDA RICE, )

CHERYL DREAKFORD, CASSANDRA BOWDEN, )

JOCELYN NICHOLS, LISA L. MALTBIA, FREDDIE )

RAINEY, BEVERLY GORDON, JACQUELINE BONDS, )

MYRA HOLMES, LETHA HOLLEY, CASSANDRA )

DALE, BETTY COBBS, WILLIAM WHITE, and )

RICHARD HILL, )

)

Defendants-Appellees. )

JUSTICE GALLAGHER delivered the opinion of the court:

The issue in this case is whether a trial court has the authority to sua sponte appoint a

guardian ad litem for competent adult plaintiffs, without a hearing, where plaintiffs are already

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represented by counsel who objects to the appointment on their behalf.

BACKGROUND

This case was previously before this court, but was dismissed for lack of jurisdiction.1 It is

now properly before this court pursuant to Supreme Court Rule 304(a). 155 Ill. 2d R. 304(a).

Plaintiffs, J.H. and J.D., competent adults, appeal from an award of fees and expenses in the

amount of $120,585.98, to be paid by them out of the proceeds of the settlement obtained for

them by their counsel, to a guardian ad litem who was appointed sua sponte by the trial judge,

over the objection of plaintiffs' counsel. Plaintiffs ask this court to decide the following issues:

(1) Whether the trial court had inherent authority to appoint a guardian ad

litem for plaintiffs who had allegedly suffered permanent and severe physical and

psychological injury, where plaintiffs were competent adults already represented by

counsel at the time of the appointment;

(2) Whether plaintiffs, as competent adults already represented by counsel,

were denied substantive and procedural due process in connection with the trial

court's appointment of a guardian ad litem;

(3) Whether the trial court had improper ex parte contacts with its

appointed guardian ad litem; and

(4) What must a guardian ad litem prove in a fee petition and is a

1

J.H. and J.D. v. Ada S. McKinley Community Services, Inc., No 1-03-3787 (2005)

(unpublished order under Supreme Court Rule 23 (166 Ill. 2d R. 23)).

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respondent entitled to a trial?2

The action below was a personal injury case. Plaintiffs, represented by counsel, sought

damages for injuries that they suffered as a result of the care they received in Illinois's foster care

system. In 1995, plaintiffs, by and through their father and next friend, Todd Higgin, filed their

action against defendants for injuries that plaintiffs suffered while wards of the Illinois Department

of Children and Family Services (DCFS), as a result of abuse plaintiffs received from their

respective foster fathers, Richard Hill and William White, both of whom were pedophiles.

Defendant, Ada S. McKinley Community Services, Inc., was a private child-welfare agency (the

McKinley agency) that DCFS had assigned to monitor plaintiffs' foster placements. The

McKinley agency knew that Richard Hill, the foster father with whom J.D. was placed, was a

prior multiple pedophilic sex offender and active alcoholic. Hill severely sexually abused J.D. for

2½ years while he was in Hill's home. The McKinley agency also knew that William White, the

foster father with whom J.H. was placed, had psychiatric infirmities precluding placement of

children in his home. White severely sexually abused J.H. for eight months while she was in

White's home. Both White and Hill were subsequently convicted of aggravated criminal sexual

assault. The McKinley agency subsequently forfeited its child-welfare agency license in

connection with these incidents of abuse and neglect. The other defendants in the case were

McKinley employees, officers and directors. At the time plaintiffs filed their action, they were

minors. During the pendency of this case, plaintiffs reached the age of majority.

2

We have summarized and rearranged the order of these issues to coincide with the order

in which we have chosen to address them.

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An initial settlement offer totaling $20,000 to both plaintiffs was made on behalf of the

defendants. That offer was not accepted. The maximum amount that was eventually offered to

plaintiffs while they were minors was a total of $1 million to be divided between the two. That

offer was also not accepted.

The case was assigned to Judge Susan Zwick on the complex case management call,

during which time she held several settlement conferences and recommended a settlement in the

sum of $6 million. The case was also pretried before Judge Donald P. O'Connell before his

retirement, and he also recommended settlement of $6 million.

After the minor plaintiffs became adults, defendants' insurer offered the sum of $2 million

to settle the claim of J.H. only. No offer was made with respect to J.D. This offer was not

accepted.

After the complex case management call was discontinued, plaintiffs' case was assigned in

early 2002 to Judge James S. Quinlan for trial. The trial judge held one pretrial conference early

in his involvement. He never made any recommendations with respect to settlement. On October

27, 2003, the trial judge, without notice to plaintiffs and without a hearing, appointed former

judge Brian L. Crowe to be plaintiffs' guardian ad litem. Subsequently, plaintiffs moved to vacate

the October 27, 2003, order. On December 1, 2003, after a hearing on the motion to vacate, the

trial judge denied the motion. In so doing, the trial judge refused to hold a hearing on plaintiffs'

legal competency or the presumed lack thereof.

Plaintiffs were adults when the trial judge sua sponte decided to appoint the guardian ad

litem. The trial judge apparently relied on medical records provided by defense counsel which had

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indicated that J.D. was in a nursing home and may have been suffering from schizoaffective

disorder. Despite the speculation engaged in by one of the defense counsel that J.D. might

therefore be a person who could not make decisions for herself, defense counsel acknowledged

that she was an attorney, not a psychiatrist. Nevertheless, no expert opinion was ever produced

by anyone that either plaintiff was disabled. No petition was filed by defense counsel to find

plaintiffs disabled. The record indicates, however, one of the defendant's counsel, although not

taking a position regarding plaintiffs' motion to vacate the appointment of a guardian ad litem,

reviewed the law “to aid and assist” the trial court and opined that the trial court “on [its] own

motion file a petition or just make [its] own motion to adjudge a person to be disabled.” Despite

plaintiffs' request, the trial judge never followed any such procedure and further asserted that it

was appointing the guardian ad litem outside of the provisions of the Probate Act of 1975 (755

ILCS 5/1-1 et seq. (West 2004) (the Probate Act).

The trial judge refused to hold a hearing on plaintiffs' competency or disability. Although

voicing his personal opinion that plaintiffs were disabled by virtue of their being abused by a foster

father, the trial judge refused to make any finding of disability. Additionally, although the trial

judge ordered that plaintiffs be examined by another psychiatrist, the trial judge refused to allow

plaintiffs' counsel to be present, other than generally stating that he was doing it to “protect”

plaintiffs, and noting plaintiffs' allegations of mental and psychological damages as part of their

personal injury claim, the trial judge refused to specify the purpose of the appointment of the

guardian ad litem. Moreover, in a written order entered on December 2, 2003, the trial judge

granted the guardian ad litem's request to clarify that members of his firm, in addition to himself,

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could assist him in undertaking his duties3 as guardian ad litem.

On December 30, 2003, plaintiffs filed their notice of appeal in case No. 1-03-3787

purporting to initiate an appeal from the October 27, 2003, order appointing the guardian ad

litem, the December 1, 2003, order denying their motion to vacate the October 27, 2003, order,

and the December 2, 2003, order which once again appointed Judge Crowe as plaintiffs' guardian

ad litem and allowed the assistance of Judge Crowe's law firm. As noted earlier, we dismissed the

appeal for lack of jurisdiction.

Thus, although plaintiffs' pleadings alleged that plaintiffs had suffered severe, irreparable

and permanent psychological and emotional harm from which they will never recover, plaintiffs

were never found to be incompetent or disabled. Indeed, it was later acknowledged by the

guardian ad litem, in a report submitted to the court on July 13, 2004, that plaintiffs were

functional adults who were aware of what was entailed in a trial and that they were willing to

testify and would make “strong witnesses.” The guardian ad litem further reported that they

trusted their counsel and were fully cooperating with him. Additionally, the guardian ad litem

reported that their counsel was adequately representing them. The guardian ad litem opined that

plaintiffs were not disabled and were capable of settling their case. Nonetheless, the guardian ad

litem continued to remain involved in the case.

It is disputed as to whether plaintiffs' counsel or the guardian ad litem suggested4 the use

3

The guardian ad litem has acknowledged that the trial judge informed him of his

appointment, ex parte, in the trial judge's chambers.

4

We note that although the competence and performance of the guardian ad litem may be

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of private mediators but the parties agreed to private mediation of both claims. J.H.'s case was

mediated before retired judge Anthony Bosco. This resulted in a settlement to J.H. in the sum of

$2,150,000. J.D.'s case was mediated before attorney Case Ellis. There was no settlement of

J.D.'s case.

On January 18, 2005, Judge Quinlan granted summary judgment to all of the defendants,

with the exception of Richard Hill. Thereafter, the insurer of the defendants offered the sum of $1

million to J.D. conditioned upon the summary judgment standing. J.D. accepted the offer.

In awarding the sum of $120,585.985 to the guardian ad litem, the trial judge, who

previously had refused plaintiffs' request for an explanation of the guardian ad litem's role and

refused to clearly define the scope of his appointment of the guardian ad litem, stated that his

reason for the appointment of the guardian ad litem was his concern about whether the attempt to

settle the case was being “conducted properly” by plaintiffs' counsel. Judge Quinlan also stated

that the guardian ad litem was appointed by him only to observe and report to the court, and that

the guardian ad litem was not to participate in the negotiations. One of the attorneys from the

guardian ad litem's law firm confirmed that it was her understanding that they were there to

“observe and report,” not to participate.

relevant to the issue of the reasonableness of its fees and expenses of $120,585.98, it has

absolutely no bearing on the issue of the trial court's authority to appoint a guardian ad litem over

competent adults.

5

The guardian ad litem reduced his request for expenses from $5,157.44 to $1,942.98

after conceding that the photocopy and facsimile charges were not proper.

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Plaintiffs now appeal from the order appointing the guardian ad litem and from the trial

court's order requiring them to pay what they characterize as a “magnificent sum” for the guardian

ad litem.

ANALYSIS

The first issue we address is whether the trial court had inherent authority to appoint a

guardian ad litem for plaintiffs who had allegedly suffered permanent and severe physical and

psychological injury, but where plaintiffs were competent adults already represented by counsel at

the time of the appointment. There is no dispute that plaintiffs were neither minors nor had they

been adjudicated as disabled pursuant to the Probate Act. This issue presents a question of law

and involves statutory construction; thus, our review is de novo. In re Mark W., No. 1-05-3370,

slip op. at 10 (June 16, 2006).

Not surprisingly, we have found no case involving the situation with which we are faced.

Specifically, this case involves the situation where the trial court, sua sponte, without a hearing

and without notice, appointed a guardian ad litem, for competent adult plaintiffs – plaintiffs who

were already represented by counsel who objected on their behalf to the appointment of the

guardian ad litem, whose role was not defined by the court and whose substantial fees were

subsequently approved by the trial judge to be paid by the competent adult plaintiffs.

It is axiomatic that, under Illinois law, an adult is presumed to be competent to manage his

or her legal affairs until the contrary is shown. In re Barbara H., 183 Ill. 2d 482, 495, 702 N.E.2d

555, 561 (1998); In re Phyllis P., 182 Ill. 2d 400, 401, 695 N.E.2d 851, 852 (1998); People ex

rel. Drury v. Catholic Home Bureau, 34 Ill. 2d 84, 95, 213 N.E.2d 507, 512 (1966); In re

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Lawrence S., 319 Ill. App. 3d 476, 481, 746 N.E.2d 769, 774 (2001). This principle applies even

where a party has been adjudicated mentally ill. In re Phyllis P., 182 Ill. 2d at 402, 695 N.E.2d at

852 (noting that “[u]nderlying this presumption [of legal competency] is the distinction between

mental illness and the specific decisional capacity to exercise or waive legal rights”); see also

People v. Eddmonds, 143 Ill. 2d 501, 519, 578 N.E.2d 952, 960 (1991) (mental illness alone does

not raise a bona fide doubt as to a person's ability to consult with counsel or his fitness to stand

trial). Moreover, the Illinois Supreme Court has explained that “serious constitutional questions

would be presented by a statute that provided for the exercise of supervisory power [by the court]

after the ward's disability had been removed.' ” In re Estate of Wellman, 174 Ill. 2d 335, 346, 673

N.E.2d 272, 277 (1996), quoting Hoff v. Meirink, 12 Ill. 2d 108, 111, 145 N.E.2d 58, 59 (1957.)

The case of In re Estate of Wellman involved the rights of an individual who had been

found to be disabled, but later restored by the court to competency. The court, in deciding that

the guardian no longer had standing to represent the interests of the former ward, explained that

upon restoration to competency, the now-competent former ward became reinvested with the

rights that he had lost when adjudicated an incompetent, which included, among other things, the

right to represent his own interests. In re Estate of Wellman, 174 Ill. 2d 335, 346-47, 673 N.E.2d

272, 277 (1996). As plaintiffs correctly note, if an adult individual who has been restored to

competency has the right to represent his own interests, then it follows even more clearly that one

who has never been declared disabled has that right. Thus, plaintiffs contend they were

exclusively vested with the authority to control their own affairs, including the right to select

counsel and to negotiate through counsel in whatever manner they chose to settle or not settle

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their case.

Our review of the record and the briefs filed in this appeal clearly reveals that the trial

judge in the instant case failed to understand the enormous legal distinction between adults who

are psychologically injured or mentally ill and adults who are legally incapacitated, i.e., disabled.

As a result, the trial judge exceeded his authority.

Long ago, in the case of Moats v. Moore, 199 Ill. App. 270 (1916), the court explained

that the trial court had a duty to summon a jury to determine whether a person, declared insane

and later found to be sane by habeas corpus proceedings, was a fit person to have the care of her

property, where the person had filed a petition to have a conservator removed. Here also,

assuming the trial court had valid concerns about the mental health of the adult plaintiffs, it was

incumbent upon the court, and the court had a duty, to hold a hearing to determine the legal

competency of the adult plaintiffs when the trial court initially, over the objection of plaintiffs'

counsel, appointed sua sponte a guardian ad litem. Certainly, after plaintiffs filed a motion to

vacate the appointment of the guardian ad litem, the trial court had a duty to hold a hearing to

determine the legal competency of the adult plaintiffs. The court's personal opinion that plaintiffs

were disabled is not a sufficient basis for appointing the guardian ad litem for these legally

competent adults already represented by counsel.

During the proceedings below, the trial judge resolutely refused plaintiffs' request to hold

a hearing to determine whether plaintiffs were or were not disabled or legally incapacitated. Nor

was there much discussion of the salient points raised in plaintiffs' motion to vacate the

appointment of the guardian ad litem. Moreover, as plaintiffs correctly note, the trial judge

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engaged in a personal invective wherein he made attacks upon the integrity of the appellate court

and plaintiff's counsel, as described in plaintiff's brief and readily apparent in the transcripts of the

proceedings.

In sua sponte appointing the guardian ad litem, without a petition or a hearing, the trial

judge did not comply with the Probate Act and asserted that he was making the appointment

outside of the Probate Act. Nonetheless, in dispensing with the procedures required by the

Probate Act, the trial judge did not state whether his decision appointing a guardian ad litem was

based upon any particular case or statute nor did he specify under what authority he was

appointing the guardian ad litem. Other than announcing that he had the power to do so, the trial

judge refused to state the source of his authority for appointing a guardian ad litem for these

competent adult plaintiffs who objected, through their private counsel, to the appointment of the

guardian ad litem. In this appeal, the guardian ad litem attempts to provide the basis for the

court's decision. He asserts that his appointment was allowed under the doctrine of parens

patriae. We find this argument generally unavailing, and particularly meritless under the

circumstances of the instant case involving competent adult plaintiffs.

Under the common law of England, control over a disabled, i.e., incompetent adult's

person and property was vested in the sovereign as parens patriae. See, e.g., In re Estate of

Nelson, 250 Ill. App. 3d 282, 286, 621 N.E.2d 81, 84 (1993). “In this country the State

succeeded to the power of the king as parens patriae, and under our form of government the

power is exercised by the courts only through legislative enactment.” (Emphasis added.)

Cowdery v. Northern Trust Co., 321 Ill. App. 243, 256, 53 N.E.2d 43, 49 (1944); accord In re

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Estate of Nelson, 250 Ill. App. 3d at 286, 621 N.E.2d at 84 (noting that “the court's jurisdiction

over the persons and property of disabled adults is wholly a creature of statute”). This court

more recently has stated that the doctrine of parens patriae no longer applies with respect to

control over a disabled person because this authority is now exercised by the courts pursuant only

to the Probate Act. In re Marriage of Casarotto, 316 Ill. App. 3d 567, 570, 736 N.E.2d 1169,

1172 (2000). In any event, the doctrine of parens patriae has no application whatsoever to

plaintiffs here because they were not minors (see In re E.G., 133 Ill. 2d 98, 111, 549 N.E.2d 322,

327 (1989) (“The parens patriae authority fades * * * as the minor gets older and disappears

upon her reaching adulthood”). Nor does the doctrine have any application here because plaintiffs

were not disabled adults. See In re Guardianship of Smythe, 65 Ill. App. 2d 431, 441, 213 N.E.2d

609, 614 (1965) (distinguishing minors from disabled adults but further acknowledging that

circuit courts of this state have no inherent jurisdiction under the parens patriae doctrine over the

estates or persons of insane adults because such power is exercised by the courts only through

legislative enactments). Plaintiffs here were competent adults. The trial court had no inherent

power to appoint a guardian ad litem for the competent adult plaintiffs under the doctrine of

parens patriae because competent adults are not wards of the court and never can be. Only

adults adjudicated as incompetent can be wards of the court.

Thus, we agree with plaintiffs that the trial court's authority to appoint a guardian ad litem

for an adult is derived from the provisions of the Probate Act. As plaintiffs correctly note, the

only instance provided by statute where a guardian ad litem can be appointed in regard to a

presumed competent adult is where a petition has been filed to adjudicate such person disabled.

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755 ILCS 5/11a-10(a) (West 2004). That section provides as follows:

“(a) Upon the filing of a petition pursuant to Section 11a-8, the court shall

set a date and place for hearing to take place within 30 days. The court shall

appoint a guardian ad litem to report to the court concerning the respondent's

best interests consistent with the provisions of this Section, except that the

appointment of a guardian ad litem shall not be required when the court determines

that such appointment is not necessary for the protection of the respondent or a

reasonably informed decision on the petition. * * * The guardian ad litem may

consult with a person who by training or experience is qualified to work with

persons with a developmental disability, persons with mental illness, or physically

disabled persons, or persons disabled because of mental deterioration, depending

on the type of disability that is alleged. The guardian ad litem shall personally

observe the respondent prior to the hearing and shall inform him orally and in

writing of the contents of the petition and of his rights under Section 11a-11. The

guardian ad litem shall also attempt to elicit the respondent's position concerning

the adjudication of disability, the proposed guardian, a proposed change in

residential placement, changes in care that might result from the guardianship, and

other areas of inquiry deemed appropriate by the court.” (Emphasis added.) 755

ILCS 5/11a-10 (West 2004).

The trial court here failed to follow the provisions of the Probate Act and had no authority to sua

sponte, without a hearing, appoint a guardian ad litem over these competent adult plaintiffs.

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Recently, this court determined that the juvenile court lacked authority to appoint a

guardian ad litem over a mentally disabled adult even though she had been adjudicated

incompetent because she was already adequately represented by a plenary guardian and the court

had held no hearing or made any findings that the plenary guardian was not fulfilling her duties.

In re Mark W., No. 1-05-3370 (June 16, 2006). After explaining that it is the Probate Act that

governs proceedings involving disabled adults and that the statute clearly prescribes the procedure

that must be followed by a court when appointing a guardian ad litem for a disabled person, we

concluded that the appointment should have been made pursuant to the Probate Act. Again,

however, this court cannot emphasize enough that in the present case, the trial court was not even

dealing with “disabled adults” but, rather, this case involves “competent adults.” As one court

explained: “Even though the trial court has the discretion to appoint a guardian ad litem in some

circumstances, it does not generally have the discretion to appoint a guardian ad litem for a

competent adult.” Hall v. Hall, 241 Ga. App. 690, 692, 527 S.E.2d 288, 289-90 (1999).

As this court has explained: “Where there has not been a judgment fixing the mental status

of the person alleged to be incompetent, the court necessarily has the power to determine all facts

essential to a proper adjudication upon the need for such guardian. This is fundamental.”

(Emphasis added.) Cowdery v. Northern Trust Co., 321 Ill. App. 243, 254, 53 N.E.2d 43, 48

(1944).

The trial judge also refused to inform plaintiffs' counsel as to the purpose for which the

guardian ad litem was being appointed, other than stating a desire to “protect” the litigants. The

guardian ad litem now asserts that there were “several” reasons for his appointment including the

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trial judge's concern that his order requiring one of the plaintiffs to be examined by a psychiatrist

was being frustrated, the trial judge's personal belief that the plaintiffs “may” be disabled, the trial

court's concern over plaintiffs' counsel's settlement strategy and the trial court's belief that the

guardian ad litem might assist in settling the case. It became clear later that the trial judge had

decided to assign the guardian ad litem to merely monitor plaintiffs' counsel and report to the

court. None of the trial judge's “concerns” or “beliefs” justified his appointment of a guardian ad

litem for these competent adult plaintiffs who were being represented by counsel. A trial court

has no inherent authority to appoint a guardian ad litem for competent adult litigants merely

because he disagrees with their private counsel's settlement or litigation strategy.6 “It is

6

During a hearing on the guardian ad litem's fee petition, the trial court interjected,

acknowledging that, “[A]t the end of a hearing we had, I suggested that we talk settlement to see

if something could be done. And I came to the conclusion that at that point with the attitudes

nothing could be done and that's when I started thinking about the possibility of a guardian ad

litem. I didn't appoint one for some time until later.”

One of the attorneys who worked at the guardian ad litem's law firm and was assigned to

assist the guardian ad litem also testified that one of their functions was to help plaintiffs' counsel

defeat defendants' motions to dismiss. The guardian ad litem also expended time in opposition to

plaintiffs' motion to vacate the appointment of the guardian ad litem, which included working on

the previously dismissed appeal. Additionally, an attorney who worked with the guardian ad litem

in essence testified that, after opining that plaintiffs were adequately represented, the role of the

guardian ad litem was to facilitate settlement by providing a report to the trial judge only, but not

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uncontroverted * * * that an injured plaintiff who is a competent adult can reject any settlement

offer no matter how advantageous and no matter how risky a trial on the merits could be and that

the trial court would have no authority to overrule that rejection.” (Emphasis added.) Ott v. Little

Co. of Mary Hospital, 273 Ill. App. 3d 563, 573, 652 N.E.2d 1051, 1058 (1995). Moreover, the

Illinois Supreme Court has noted that, “[i]n the ordinary case, the judiciary plays no role in presuit

settlement agreements and the decision to settle rests solely in the discretion of the settling

parties.” (Emphasis added.) In re Guardianship of Babb, 162 Ill. 2d 153, 163, 642 N.E.2d 1195,

1200 (1994).

The guardian ad litem has argued on appeal that courts have approved the appointment of

guardians ad litem for allegedly disabled adults outside the probate guardianship procedure. The

cases cited by the guardian ad litem are factually inapposite and none involve the appointment of

a guardian ad litem, without notice, without a hearing, and over the objections of competent

adults who are already represented by private counsel.

One of the cases cited by the guardian ad litem is In re Estate of Dyniewicz, 271 Ill. App.

3d 616, 648 N.E.2d 1076 (1995), a case involving a married couple who, as co-guardians of the

persons and estates of their five grandchildren, were sued by their grandchildren, all of whom filed

petitions for a final accounting and distribution of their estates. The circuit court appointed a

guardian ad litem for the “Estate of Dyniewicz.” In their appeal, the co-guardians argued, among

other things, that the trial court “lacked subject matter jurisdiction to appoint a guardian ad litem

to the parties, in the hope that the defense would be concerned about what was in the report and

be more willing to settle the case.

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since not all of the Dyniewicz children were minors.” Dyniewicz, 271 Ill. App. 3d at 623, 648

N.E.2d at 1082 . The court, in rejecting this argument, stated as follows: “Although the circuit

court is under no duty to appoint a guardian where a party has attained the age of majority, a

parent or guardian may represent their interests in a judicial proceeding [citation], particularly

under circumstances such as these.” (Emphasis added.) Dyniewicz, 271 Ill. App. 3d at 623, 648

N.E.2d at 1082. We believe the statement did not necessarily address the issue. Moreover, as

support for its statement, the court cited, generally, In re Spain, 54 Ill. App. 3d 26, 369 N.E.2d

305 (1977). However, In re Spain involved a mentally ill adult who contended that a guardian ad

litem should have been appointed for him “because of his age and the nature of the action against

him.” In re Spain, 54 Ill. App. 3d at 29, 369 N.E.2d at 307. With respect to the issue of his age,

the In re Spain court actually stated as follows:

“It is well established that a minor who is a defendant in a purely civil

action may not act in his own name but must appear through a representative, such

as a parent or a guardian ad litem. [Citation.] In the present case, the record

clearly reveals that respondent was 19 years of age at the time of the hearing. In

Illinois, persons of the age of 18 and over are considered of legal age [citation] and

a parent or guardian need not represent their interests in a judicial proceeding.

Regardless of the type of proceeding involved, there is no duty placed upon the

court to appoint a guardian where a party has attained the age of majority.” In re

Spain, 54 Ill. App. 3d at 29, 369 N.E.2d at 307.

Thus, contrary to the Dyniewicz court's interpretation of In re Spain, and contrary to the guardian

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ad litem's reliance on Dyniewicz, a trial court has no inherent authority to appoint a guardian ad

litem for competent adults. We further note that the Dyniewicz court , in rejecting the argument

of the co-guardians that it lacked subject matter jurisdiction to appoint the guardian ad litem since

not all of the Dyniewicz children were minors, additionally noted that “none of the parties ever

objected to the appointment of a guardian ad litem or to his fees.” Dyniewicz, 271 Ill. App. 3d at

623, 648 N.E.2d at 1082 . This is yet another reason why Dyniewicz is inapposite.

The guardian ad litem also cites In re Estate of Nelson, 250 Ill. App. 3d 282, 621 N.E.2d

81 (1993), in support of its argument that the Probate Act does not limit a trial court's inherent

authority to appoint a guardian ad litem to protect a litigant's interests. Again, In re Estate of

Nelson did not involve a competent adult. Rather, it involved a disabled person, George. As the

court in Nelson explained, “When he was adjudicated incompetent in 1956, George became a

ward of the court entitled to its protection.” In re Estate of Nelson, 250 Ill. App. 3d at 286, 621

N.E.2d at 84. The court further explained that its jurisdiction continued until such time as the

adjudication of the ward's disability was terminated or the ward died. In re Estate of Nelson, 250

Ill. App. 3d at 287, 621 N.E.2d at 85. It was in that context that the court decided that it had the

authority to appoint a guardian ad litem to investigate allegations that George's living conditions

were unacceptable. Specifically, the court in In re Estate of Nelson stated as follows:

“When, as in this case, a court is charged with a duty to protect the interests of its

ward, we believe that by implication it has such powers, although not expressly

given by the statute vesting the court with jurisdiction over the ward, * * * as are

necessary to properly discharge that duty, including the appointment of a guardian

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ad litem to investigate unverified charges of neglect.” (Emphasis added.) In re

Estate of Nelson, 250 Ill. App. 3d at 287-88, 621 N.E.2d at 85.

Contrary to the guardian ad litem's contention, In re Estate of Nelson, which involved a ward of

the court, does not stand for the proposition that a trial judge can appoint a guardian ad litem for

competent adults outside of the Probate Act.

We recognize that a guardian ad litem serves a different purpose and has a far different

role than a guardian of the estate or person. Nonetheless, in contending that his appointment here

was appropriate, the guardian ad litem cites inapposite cases involving “wards” of the court and

alleged “incapacitated” persons. Moreover, procedural safeguards found in the Probate Act are in

place that govern the appointment of a guardian ad litem, as well as plenary guardians and limited

guardians. See 755 ILCS 5/11a-3, 11a-12, 11a-14, 11a-17 (West 2000). “Even a limited guardian

may be appointed only if the court finds guardianship to be 'necessary' for the protection of the

person, estate or both of the disabled person. [Citations.]” (Emphasis added.) In re Guardianship

of Mabry, 281 Ill. App. 3d 76, 87, 666 N.E.2d 16, 23 (1996).

Plaintiffs have raised, as a separate argument, that they were denied substantive and

procedural due process in connection with the trial court's appointment of the guardian ad litem

because they were competent adults already represented by counsel. As we noted earlier, the

Illinois Supreme Court has stated that “ 'serious constitutional questions would be presented by a

statute that provided for the exercise of supervisory power [by the court] after the ward's

disability had been removed.' ” In re Estate of Wellman, 174 Ill. 2d at 346, 673 N.E.2d at 277,

quoting Hoff, 12 Ill. 2d at 111, 145 N.E.2d at 59. More to the point, it has been explained that

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“[t]he retention of a guardian ad litem for a competent adult seriously impinges upon the

defendant's rights to due process guaranteed by the United States Constitution. U.S.Const.

Amend. 14.” State v. Ladd, 139 Vt. 642, 644, 433 A.2d 294, 295-96 (1981). But, as noted

earlier, the trial judge failed to understand the enormous legal distinction between adults who are

psychologically injured or mentally ill and adults who are legally disabled. Plaintiffs, through their

counsel, made a valiant attempt to explain this principle to the trial judge.

We recognize that there will be times where a trial court has valid concerns about the

mental capacity of a litigant and its need or duty to protect the rights of one who, although not yet

adjudicated disabled, may nonetheless actually be disabled. But the trial judge here, in presuming

his authority to appoint a guardian ad litem was absolute, failed to recognize the competing

principles involved in such a situation.

We believe that a case from another jurisdiction, New York Life Insurance Co. v. V.K.,

184 Misc. 2d 727, 711 N.Y.S.2d 90 (1999), explains those competing principles well, although

we point out that the case was yet another where no objection to the appointment of a guardian

ad litem had been raised. The case involved a woman, V.K., at risk of losing her home for non-

payment of rent where the New York City Department of Social Services, contending that V.K.

was an adult incapable of adequately prosecuting or defending her rights, had sought leave to

intervene for the appointment of a guardian ad litem for V.K. and also sought to vacate a default

judgment entered against V.K.

The New York court examined “the range of issues that arise in determining whether to

appoint a guardian ad litem for a party.”V.K., 184 Misc. 2d at 728, 711 N.Y.S.2d at 92. The

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court acknowledged its duty to protect the mentally infirm, but additionally recognized an

important competing principle when it stated as follows:

“On the other hand, this policy [to afford rigorous protection of the rights of the

mentally infirm] recognizes that the justification for legal intervention into the lives

of persons suffering mental incapacities without those persons' consent, though

undertaken to protect their safety, health, and welfare, must outweigh the

restrictions on liberty that the intervention entails. [Citation.]” V.K., 184 Misc. 2d

at 732, 711 N.Y.S.2d at 94.

The V.K. court went on to recognize the distinction between a guardian ad litem and other

guardians. The court noted as follows: “Appointment of a guardian ad litem is a far less

restrictive intervention than, for example, a commitment, guardianship, or conservatorship.

[Citations.]” V.K., 184 Misc. 2d at 732, 711 N.Y.S.2d at 94-95. In the instant case, the guardian

ad litem has emphasized, and this court is aware of, the distinction. Nonetheless, the appointment

of a guardian ad litem over competent adult litigants represented by counsel is of no small import.

The guardian ad litem fails to recognize, as did the trial judge in the court below, the competing

principles at stake. As the V.K. court further explained:

“Nevertheless, guardians ad litem, though appointed to protect and assist a party,

do substitute their judgment and decisions for the decisionmaking that the party

otherwise would exercise in a proceeding and curtail the party's autonomy and

freedom in that respect.***

Since V.K. has not consented to anyone stepping in to make decisions for her,

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whose services she may be obligated to pay for, that curtailment of her freedom

must be sufficiently justified. Any '[l]oss of liberty calls for a showing that the

individual suffers from something more serious than is demonstrated by idiosyncratic behavior.'

[Citation.]” (Emphasis added.) V.K., 184 Misc. 2d at 733, 711 N.Y.S.2d at 95.

See also In re Becan, 26 A.D.2d 44, 45-46, 270 N.Y.S.2d 923, 927-28 (1966) (in a case

involving a ward of the court, the court explained that where the work of a guardian ad litem

would be merely an unnecessary duplication of the work performed by the administrator or his

attorney and the appointment of a guardian ad litem is unnecessary for the protection of the rights

and interests of the incompetent, it is improper to burden the estate with the expense incident

thereto). The matter of the expenses and fees assessed to these competent adult plaintiffs,

without their consent, is no inconsequential matter, particularly where, as here, that amount was

$120,585.98 and these competent adult plaintiffs never agreed to either the guardian ad litem's

hourly billing method or the guardian ad litem's billing rates and, indeed, were relying on their

contingent fee agreement with retained counsel.

Interestingly, in arguing that the trial court had inherent authority to appoint a guardian ad

litem outside of the Probate Act, with all of its procedural safeguards, the guardian ad litem cites

Graham v. Graham, 40 Wash. 2d 64, 240 P.2d 564 (1952), but that case provides support for our

decision. Graham v. Graham involved a writ of prohibition seeking to prevent the appointment of

a guardian ad litem. While stating the general proposition that a trial court had the inherent

authority to appoint a guardian ad litem for a party when reasonably convinced that the party was

“not competent, understandingly and intelligently, to comprehend the significance of legal

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proceedings,” the case actually stands for the proposition and the court there so held that such a

party was entitled to a full and fair hearing and an opportunity to defend against the appointment

of a guardian ad litem and where the court fails to provide these essentials, a court would be

proceeding in excess of its jurisdiction. Graham v. Graham, 40 Wash. 2d at 67-69, 240 P.2d at

565-66.

The Graham v. Graham court, unlike the trial court here, recognized that “a most serious

question arises when there is timely objection or resistance to the appointment [of the guardian ad

litem] either by the alleged incompetent or his attorney.” Graham v. Graham, 40 Wash. 2d at 68,

240 P.2d at 565-66. As the court explained, in that situation, “the changes which might result

from the appointment of a guardian ad litem are of such significance as to be permitted only after

a full, fair hearing and an opportunity to be heard is accorded to an alleged incompetent.” Graham

v. Graham, 40 Wash. 2d at 68, 240 P.2d at 566. Also, in such a situation, “an adjudication of

incompetency must precede or at least be contemporaneous with the appointment of a guardian

ad litem; and in that connection[,] an alleged incompetent has a right to defend and is entitled to

be heard.” Graham v. Graham, 40 Wash. 2d at 67-68, 240 P.2d at 566. Thus, assuming

arguendo that the trial court has some authority outside of the Probate Act, to appoint a guardian

ad litem for the purpose of ascertaining whether plaintiffs are competent to manage their own

affairs and to act in their own best interests with respect to any settlement offers made by

defendants, this authority would be exceeded where, as here, the trial court fails to provide the

procedural due process safeguards of notice and hearing.

We note that the guardian ad litem has additionally suggested in this appeal that the trial

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court appointed him because it was concerned about a potential conflict between the interests of

J.D. and J.H., in light of plaintiffs' counsel's representation of both clients, that arose during a

pretrial settlement conference. This argument is meritless for all of the reasons noted by plaintiffs

in their reply brief. In addition, the court's appointment of one guardian ad litem for both

plaintiffs seriously undermines the court's concern about a conflict.

In the previous appeal, as here, plaintiffs contended that the trial court's order appointing

the guardian ad litem was void for lack of subject matter jurisdiction and personal jurisdiction. As

noted earlier, we dismissed the appeal for lack of jurisdiction. We now consider the argument and

conclude that, because the trial court appointed a guardian ad litem for these competent adult

plaintiffs without providing the essential procedural due process safeguards of notice and hearing,

the court was proceeding in excess of its jurisdiction and its order is void. Therefore, we vacate

the award of fees to the guardian ad litem. We recognize that our disposition may seem harsh.

Nonetheless, we believe that it would be harsher yet to require competent adult plaintiffs to pay

fees for a guardian ad litem where no guardian ad litem was necessary and where plaintiffs were

denied procedural due process after their timely objections to the appointment.

In In re Prior, 116 Ill. App. 3d 666, 452 N.E.2d 676 (1983), this court reversed an award

of fees to a guardian ad litem where no “administration” of an estate was required, the

respondent's interests were otherwise protected by private counsel and there was no necessity for

the appointment of a guardian ad litem. Later, this court decided that, although the result in Prior

may have been warranted on its particular facts including that the petitions lacked merit, we

disagreed that guardian ad litem fees may never be awarded prior to or without the

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“administration” of a respondent's estate. In re Serafin, 272 Ill. App. 3d 239, 244, 649 N.E.2d

972, 976 (1995). But the factual scenario and the procedural posture of In re Serafin are both

markedly different from the situation in the present case. In In re Serafin, although there was

never any finding that the ward was disabled, the petitioners had never sought any hearing on the

petition for the appointment of a permanent guardian and there was no finding that the

appointment of the guardian ad litem was not necessary. In re Serafin is inapposite.

By this decision we do not hold that a trial court cannot appoint a guardian ad litem for an

adult litigant not yet adjudged disabled, where the court has concerns about the mental capacity of

the litigant and there is no objection to the appointment of a guardian ad litem. This was not one

of those instances. In no event should a trial court's right to appoint a guardian ad litem be

considered absolute and certainly a hearing should be had as to the actual competency of the adult

litigant. Moreover, we believe that it is incumbent upon the guardian ad litem to ascertain the

competency of the adult litigant and report to the court as soon as possible. See, e.g., In re Estate

of Doyle, 362 Ill. App. 3d 293, 296, 838 N.E.2d 355, 359 (2005) (where the party eventually was

adjudicated disabled at a hearing, the court noted that it received a prehearing report and a

posthearing report from the guardian ad litem recommending the appointment of guardians of

both the estate and the person). The trial judge's personal opinion that a guardian ad litem is

required is not a justification for dispensing with the procedural safeguards afforded by the

Probate Act or the procedural due process requirements of notice and hearing. The court's failure

to comply with either the Probate Act safeguards or procedural due process requirements was

particularly troubling in the instant case where the competent adult plaintiffs, through their private

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retained counsel, objected to the appointment of the guardian ad litem which, nonetheless,

remained ongoing and indeed, because plaintiffs were competent, was later confirmed to be

unnecessary.

We note that plaintiffs have raised additional arguments that the trial court abused its

discretion in awarding fees to the guardian ad litem where the guardian ad litem failed to carry his

burden of proof as to the reasonableness of the rate or the amount of those fees. In view of our

decision, however, we need not address the merits of the argument, nor do we need to address the

asserted procedural irregularities relating to the amended fee petition. We also need not decide

the import of the trial court's ex parte contact with the guardian ad litem.

Accordingly, for the reasons stated, we vacate the order of the trial court appointing the

guardian ad litem and we vacate the award of fees and expenses to the guardian ad litem. This

matter is remanded to the circuit court for an order returning the sequestered funds to plaintiffs.

Orders vacated and cause remanded with directions.

O'BRIEN, P.J., and O'MARA FROSSARD, J., concur.

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