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In Re Estate of Malloy





APPEAL from the Circuit Court of Cook County; the Hon. WALTER P. DAHL, Judge, presiding.


This is an appeal from orders entered in a guardianship hearing held pursuant to section 11a-1 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 11a-1 et seq.), declaring appellant a disabled person and appointing plenary guardians for her person and her estate. We affirm.

The issues presented for review are: (1) whether the notice of appeal was fatally defective and not timely filed; (2) whether this appeal was so frivolous, vexatious and unreasonable as to warrant awarding appellee costs and attorney fees; (3) whether the failure to file a medical report with the guardianship petition deprived the trial court of personal jurisdiction over the appellant; (4) whether the trial court had the authority to order appellant to be examined by a physician; and (5) whether the finding that appellant was a disabled person was supported by the evidence adduced at the hearing.

On July 16, 1979, Leland Malloy (petitioner) filed a petition pursuant to the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 11a-1 et seq.) to have his mother declared a disabled person and to have a guardian for her estate appointed. Upon the filing of the petition, the court appointed a guardian ad litem (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 11a-10(a)) who subsequently interviewed appellant and filed a report of that interview with the court. The court then appointed a temporary guardian of appellant's estate. (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 11a-4.) On October 4, 1979, the court granted petitioner's motion to have appellant examined by Dr. Conover Talbot. Dr. Talbot examined appellant on October 9, 1979, and filed a report of the results of the examination with the court. A hearing on the petition was had on October 11, 1979, at which the following evidence was taken.

Dr. Bernard H. Shulman, a psychiatrist testifying on behalf of appellant, stated that she had an obvious memory defect when questioned about her financial affairs; that she required the assistance of others in order to refresh her memory; that she did not know of her assets unless reminded of them; that as a result of this defect and of her desire to please others, she could be relatively easily led to conclusions which the assisting party desired her to reach. Nonetheless, in Dr. Shulman's opinion, the appellant could make a reasonable judgment if supplied with the forgotten facts, and she was capable of managing her own affairs if she was apprised of those affairs. Dr. Shulman's examination consisted of one 45-minute session.

Dr. Thomas Leider, a psychiatrist, also testified on behalf of appellant. He was essentially in agreement with the conclusions reached by Dr. Shulman. In response to examination by the court, Dr. Leider testified that without being reminded appellant would not have independent knowledge of the nature or extent of her assets. However, Dr. Leider believed this to be due essentially to the fact that throughout her life others had managed her affairs and not due to her memory defect. In his opinion appellant was able to manage her affairs because she was able to obtain the help she needed, knew where to turn for such help, and knew whom to choose to entrust with those decisions. Nevertheless, Dr. Leider further testified that appellant could not independently "know where everything is, and make all the decisions, make them in a way that was necessarily in her best interests," relative to the management of her estate or financial affairs.

Dr. Conover Talbot, an internist, testified on behalf of appellee, the petitioner. Dr. Talbot had performed a medical examination of appellant, pursuant to court order. The results of the examination showed that appellant suffered a generalized sclerotic disease commensurate with her age of 78. She also showed signs of altered mental capacity consistent with her age. During the examination Dr. Talbot asked questions of appellant to determine the state of her mental faculties. In his opinion appellant would require help in managing her financial affairs.

The report which Dr. Talbot prepared subsequent to his examination of appellant was also entered into evidence. *fn1 It contained a brief evaluation of appellant's physical condition and stated that appellant had impaired memory recall, impaired conjugative ability (the ability to draw conclusions from several factors), impaired mathematical skills and physical debility of old age in keeping with her chronological age. The report further stated that appellant was only partially capable of making personal and financial decisions; incapable of being custodian of her assets, or of making investment decisions or of collecting and distributing income. Although capable of minor housekeeping and personal grooming decisions, she was incapable of making decisions regarding her health and safety. Dr. Talbot based these conclusions on her impaired memory and conjugative abilities. On cross-examination Dr. Talbot admitted that although he had presented appellant with simple mathematical problems, he had asked appellant no questions concerning her financial affairs.

Appellant was called to testify under section 60 of the Illinois Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 60.) She testified that she never had to bother with the management of her financial affairs. Although she did not own stocks, she thought she possibly owned bonds which were located in a bank on Halsted Street. She did not know the value of her assets and did not think she owed any money. Her daughter had always paid appellant's bills. Appellant could not recall whether she had a trust nor did she know her yearly income. She testified that although she felt she could handle money without assistance, she would not try to do so. Appellant could not remember if she had a checking account and could not recall the purpose for two checks shown to her while she was testifying which bore her signature. Although appellant could recall hiring her attorney, she could not remember his name nor instructing him to resist the guardianship appointment. She could not recall any conversations with him. In response to a question posed by the court, appellant testified that she could not choose which of her children should be appointed her guardian.

At the conclusion of the evidence presented at the October 11, 1979, hearing, the court made an oral finding that appellant was unable to manage her estate or financial affairs. The following day, October 12, 1979, the court entered a written order finding that appellant was a disabled person unable to manage her financial affairs, continuing the appointment of the Marquette National Bank as temporary guardian of the estate, and continuing the proceedings to October 19, 1979. On October 19, 1979, petitioner was granted leave to file an amended petition to additionally request the appointment of a guardian for appellant's person. On October 23, 1979, upon the filing of the amended petition, the court entered an order finding that appellant was a disabled person totally unable to manage her estate or financial affairs, and ordering that Patrick Murphy, acting public guardian, be appointed as plenary guardian for her estate, and that appellant's daughter be appointed as plenary guardian for her person. The order specified as the basis of its findings the testimony heard by the court including that of Doctors Shulman, Talbot and Leider.

Appellant filed a notice of appeal specifying the appeal to be from orders entered October 11, 1979, and October 18, 1979. Appellee filed in this court a motion to dismiss the appeal and to award costs and attorney fees incurred in defending the appeal pursuant to Supreme Court Rule 366(a)(5) (Ill. Rev. Stat. 1979, ch. 110A, par. 366(a)(5)), which was taken with the appeal.


Initially, we address appellee's motion to dismiss this appeal. Appellee first states that the appeal should be dismissed because the record is silent as to the existence of the October 18 order from which the appeal could be taken.

In her notice of appeal appellant stated that she "appeals from the Orders entered in this cause on October 11, 1979 and October 18, 1979, declaring [her] a disabled person and appointing [her daughter] as guardian of her ...

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