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In Re Estate of Hayden





APPEAL from the Circuit Court of Macoupin County; the Hon. HOWARD LEE WHITE, Judge, presiding.


Rehearing denied April 27, 1982.

Conservatorship — of person and estate.

Conservatorship terminated.

Who now has standing to question the actions of the conservators?

No one — other than the now-competent former ward.

In 1976, Blanche Hayden was declared an incompetent; her sister, Gertrude Eddington, was appointed conservator of her estate, and her daughter, Sylvia Williams, was appointed conservator of her person. On July 14, 1980, Richard Geppert — Blanche's grandson — filed a petition seeking, inter alia, revocation of the conservatorship. Gertrude and Sylvia filed a general denial of the matters alleged in the petition, and the matter was set for hearing on September 18, 1980.

At that hearing, the conservators' attorney stated that both Gertrude and Sylvia agreed that a conservatorship was no longer necessary and that Blanche was competent. Blanche's guardian ad litem stated that he, too, had reached the conclusion that Blanche was competent.

Since all parties agreed that the conservatorship should be terminated, the court so ordered and directed that an accounting be filed within 45 days. Geppert's attorney reminded the court that the petition also alleged various acts of malfeasance by the conservators and asked that he be allowed to pursue discovery. The court stated that any discovery that it would allow should certainly not occur until after the conservators' final accountings were filed.

Subsequently, Sylvia filed her final report as conservator of the person, and Gertrude filed a "preliminary report" as conservator of the estate. Thereafter, discovery depositions were taken of both Sylvia and Gertrude. On April 8, 1981, a hearing was held in this matter, and Judge Howard Lee White immediately demanded to know what interest Geppert had in Blanche's estate that would allow him to continue as a party. In the discussion that ensued, the court learned that Blanche's estate owed Geppert $992.10 as a result of prior litigation. The court ordered this sum to be paid within five days. Geppert's attorney argued that Geppert should be allowed attorney fees for proceedings that occurred before the time when Gertrude and Sylvia conceded that a conservatorship was no longer needed. He testified that $1,800 was owed him for services during that time.

Judge White ruled that Geppert had no interest in the estate except as a creditor. As such, he could have filed a claim for $992.10 and along with that claim could have alerted the court that Blanche was competent. Had he followed that procedure, concluded the court, he would have been entitled to approximately $300 in attorney fees. Thus, the court ordered the estate to pay Geppert the $992.10 plus $300 attorney fees but went on to find "that Mr. Geppert has no further interest in this proceeding and the court on its own motion restrains him from filing anymore proceedings in this case." Judge White assured Geppert's attorney that this ruling also precluded his filing a citation petition.


• 1 Geppert initially argues that the court erred in not holding an evidentiary hearing on his petition on September 18, 1980. As authority he cites section 11a-21(a) of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 11a-21(a)):

"The court shall conduct a hearing on a petition filed under Section 11a-20 [dealing with, inter alia, petitions to revoke letters of guardianship] * * *."

Geppert, however, has waived any error the court may have committed. His attorney not only failed to ask for a hearing on that date; he also specifically agreed to the court's revocation of the conservatorship without holding a hearing as to Blanche's present condition:

"THE COURT: Gentlemen, I have before me, again, a petition to revoke the letters of conservatorship, setting up the reasons why they should be revoked and the guardian ad litem agrees it should be allowed and the conservator agrees it should be allowed.

Petition is allowed and the conservator will account to this court within 45 days for their actions.

[Conservators' attorney]: Fine.

[Geppert's attorney]: Your Honor, that's fine * * *."

Under these circumstances, it can hardly be said that Geppert has preserved this issue for appeal. Furthermore, where all the parties obviously agreed that Blanche was competent and that the conservatorship was no longer necessary, it would not serve any useful purpose for the court to go through the motions of holding a hearing. Also, section 11a-21(a) does not entitle Geppert to a hearing as to the allegations of malfeasance contained in this petition. That section calls for a ...

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