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In Re Estate of Onischuk

OCTOBER 30, 1967.

IN THE MATTER OF THE ESTATE OF NICK ONISCHUK, INCOMPETENT. THE DEPARTMENT OF MENTAL HEALTH OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

SAMUEL NINEBERG AND SAM ONISCHUK, AS CO-CONSERVATORS OF THE ESTATE OF NICK ONISCHUK, AN INCOMPETENT, RESPONDENTS-APPELLANTS.



Appeal from the Circuit Court of Cook County, Probate Division; the Hon. ANTHONY J. KOGUT, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

This is a statutory proceeding for treatment charges brought under the Mental Health Code of 1963, against the estate of Nick Onischuk, an incompetent. (Ill Rev Stats 1965, c 91 1/2, §§ 12-21, 12-22 and 12-23.)

The conservators appeal from an order of the Probate Division of the Circuit Court of Cook County, entered on March 16, 1966, directing them to pay to the Department of Mental Health, out of the assets of the estate of the incompetent, for the care and maintenance of the incompetent, (1) for past due maintenance, $2,778 for the period from January 1, 1952, through November 30, 1964; and (2) "the further monthly per capita charge as determined by the Department of Mental Health, State of Illinois, for maintenance of the said Incompetent in Manteno State Hospital until the assets of Nick Onischuk, Incompetent herein, have been depleted to a sum of not more than $500.00, or until said Incompetent is discharged from Manteno State Hospital, or until the further Order of this Court."

The facts are not in dispute. The third current account (1954) showed assets in excess of $15,000 held on restricted deposit. There were no expenditures since 1954. The petition of the Department of Mental Health showed a credit to the incompetent of $8,952, representing social security benefits turned over intact to the Department. The treatment charge since January 1, 1964, has been $132 per month, against which has been credited monthly social security benefits of $81.

The conservators filed an answer to the petition of the Department, in which they allege "that the calculations of petitioner are erroneous, and that there is no audit or proper basis for the computations set forth. . . ." They also deny that they received monthly statements.

It is the theory of the conservators that "the monthly sums of $81.00 received by the Department of Mental Health from the Incompetent's Social Security benefits adequately compensate the Department for his maintenance costs at Manteno; that in any event the Conservators were never given a statement showing what these maintenance costs are."

The conservators argue, "If Nick Onischuk is compelled to pay a per capita tax which includes a computation of the cost of maintaining indigent patients, then the State has now shifted its burden for the maintenance of these indigent patients to Nick Onischuk and others in similar situations." The conservators maintain that it would be "more equitable if the agency or hospital would give the statement the Act intended, namely a statement of the cost of maintenance of the individual inmate, and then require payment of this actual cost. To require otherwise would be to compel our incompetent to pay part of the cost of maintaining other inmates who have no estate or who have no method of paying for their maintenance."

The Department asserts that sections 12-21 to 12-27 of the Mental Health Act (Ill Rev Stats 1965, c 91 1/2) authorize the Department of Mental Health to establish an average per capita cost of maintaining a patient in a state mental institution and further provide for means and methods of collecting the per capita cost from the incompetent's estate or from close relatives. The Department submits that the average per capita cost calculation under section 12-22 is not unreasonable, discriminatory or a denial of due process (Kough v. Hoehler, 413 Ill. 409, 109 N.E.2d 177 (1952)), and "that decision further stated that it is proper that the estate of a patient should reimburse the State for so much of the expense of his care as possible thereby lessening the burden upon the public."

As we understand the contention of the conservators, it is that the "general average per capita cost of operation of all state hospitals for the mentally ill" (section 12-22 — Rates) is so calculated as to place the entire cost of the operation of the state hospitals for the mentally ill on the financially responsible patients or relatives, with no part being assumed by the State for those unable to pay.

We find no merit in this contention. In Kough v. Hoehler, 413 Ill. 409, 109 N.E.2d 177, it is said (p 417):

"The plaintiffs complain that the charges are computed on the general average per capita cost of operation of all State hospitals, making no distinction between institutions or the care and treatment rendered the various types of patients. They therefore claim a lack of due process. Section 9-20 [now 12-22] of the Mental Health Code constitutes a direction to the Department by the legislature concerning the method by which the charges shall be computed. Nothing herein reveals that the charges under this section are unreasonable or result in discrimination. It is purely a legislative function to direct the method whereby these charges may be determined, and presents no proper constitutional question."

At p 418:

"Since these charges partake of a public charity, (rather than a governmental purpose,) the original cost of which is borne by the public, it is entirely proper and fitting that the patients, their estates and relatives, in so far as they are able, should reimburse the State for so much of the expense of their care as possible, and thereby lessen the burden upon the public. Plaintiffs seem to base their argument upon the fact that the regulations promulgated by the Department fix the amount to be paid by or for a patient in accordance with the financial ability of the patient, or his estate or near relatives, as the case may be, or upon their income. Since caring for these patients is a work of charity, and they are not ...


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