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In Re Estate of Donnelly

OPINION FILED JANUARY 12, 1983.

IN RE ESTATE OF FLORENCE DONNELLY, A DISABLED ADULT. — (MARGIE LEE TEGELER ET AL., GUARDIANS OF THE PERSON AND ESTATE OF FLORENCE DONNELLY, PETITIONERS-APPELLANTS,

v.

RALPH J. MENDELSOHN, GUARDIAN AD LITEM OF FLORENCE DONNELLY, RESPONDENT-APPELLEE.)



Appeal from the Circuit Court of Madison County; the Hon. Lola Maddox, Judge, presiding.

JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:

This appeal presents the question of whether plenary guardians for a disabled adult may be compensated from the estate of the adult for services rendered solely in relation to the emotional needs of the adult. We hold that, subject to guidelines pertaining to representatives' fees in general, they may be so compensated.

Florence Donnelly, the disabled adult, was discovered in June 1980 by appellants Margie Tegeler and June Smith through their work with a meals on wheels program. Ms. Donnelly, who was 73 years old at the time, lived alone in her Collinsville home in squalid conditions. She had a great deal of difficulty in caring for herself and was in a state of physical and mental deterioration.

The appellants, in addition to making frequent visits to Ms. Donnelly's home to assist in improving her personal hygiene and dietary habits, also attempted to locate any surviving relatives. It was determined that Ms. Donnelly's 85-year-old half-brother lived in Niles, Michigan. The half-brother came to Collinsville with a grandson, and, after visiting with the appellants and Ms. Donnelly, he agreed that the appellants should be appointed as her guardians. A petition to that effect was filed in the circuit court of Madison County in September 1980, and, on September 26, the appellants were appointed guardians of the person and of the estate of Florence Donnelly.

Pursuant to their appointment, the appellants had Ms. Donnelly placed in a nursing home, sold her Collinsville house and otherwise assumed the management of her estate, which is valued at approximately $90,000. They also visited her in the nursing home at least three times a week, brought presents and other items to her, took her on outings and invited her to their homes on holidays and other occasions. On January 23, 1981, the appellants filed an interim report of their activities between August 1, 1980, and December 31, 1980. That report alleged that the appellants had spent 444 hours in different capacities, performed for the benefit of Ms. Donnelly. The appellants petitioned the probate court to allow them $1,350 each as compensation for their services.

The court-appointed guardian ad litem for Ms. Donnelly objected to this request. At hearings on the appellants' report, he argued that the guardians should be compensated for managing Ms. Donnelly's estate and for attending to her physical needs, but not for services performed to meet her emotional needs. The court accepted this distinction "after evaluating the legal relationship between guardian and ward and after giving due consideration to the need for protecting a ward from possible abuses of her funds." The court allowed the appellants $1,000 compensation apiece, and it is from that order that the present appeal is taken.

The parties concede that there is no case law in Illinois purporting to decide whether plenary guardians may be compensated for services rendered solely in relation to the emotional needs of the disabled ward. There is no question that these activities would not be compensable if the appellants were only guardians of the estate of Florence Donnelly, for the duties of the guardian of the estate of a disabled adult do not encompass such activities. (Ill. Rev. Stat. 1981, ch. 110 1/2, par. 11a-18(a); see also Poling v. City Bank & Trust Co. (Fla. App. 1966), 189 So.2d 176.) Thus, if the appellants are entitled to compensation for these services, they may be entitled to it only in their capacity as personal guardians.

• 1 Section 27-1 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110 1/2, par. 27-1) provides in general terms that "[a] representative is entitled to reasonable compensation for his services." This provision, which has been applied to fees sought by the conservator of the estate of an incompetent (In re Estate of Rumoro (1980), 90 Ill. App.3d 383, 413 N.E.2d 70; In re Estate of Weber (1978), 59 Ill. App.3d 274, 375 N.E.2d 569), is broadly worded so as to indicate that it applies to reimbursement sought by a personal guardian as well.

The appellants argue that since no limitation is placed on the term "services" by section 27-1, the trial court's distinction between services related to the emotional needs of the ward and other activities undertaken on behalf of the ward is unwarranted by the terms of that provision. They further contend that since the personal guardian of a disabled adult is required to "assist the ward in the development of maximum self-reliance and independence" (Ill. Rev. Stat. 1981, ch. 110 1/2, par. 11a-17(a)) and to file reports informing the court of, inter alia, "the current mental, physical and social condition of the ward" and "the guardian's visits with and activities on behalf of the ward" (Ill. Rev. Stat. 1981, ch. 110 1/2, pars. 11a-17(b)(1), (4)), it is incongruous to deny the guardian compensation for these mandatory activities.

We agree with this position. We find nothing to indicate that the term "services" in section 27-1 was intended to include all services rendered by a representative except those which further the emotional well-being of the ward, and the fact that the personal guardian is entrusted with the physical and mental development of the ward is additional evidence that that section should not be so limited. It would be unfair to require the personal guardian to attend to the adult's emotional needs while, at the same time, denying him any compensation for his activities in furtherance of those ends. Moreover, many of the tasks performed by the personal guardian serve multiple purposes, and we can foresee great administrative difficulties in attempting to differentiate between non-compensable services "performed exclusively in relation to the emotional needs of the ward" and other, compensable, services.

• 2 A statute which is unambiguously worded should be enforced according to the plain and ordinary meaning of that language. (Illinois Power Co. v. Mahin (1978), 72 Ill.2d 189, 381 N.E.2d 222; People ex rel. Gibson v. Cannon (1976), 65 Ill.2d 366, 357 N.E.2d 1180.) Therefore, we hold that the word "services" in section 27-1 of the Probate Act of 1975 includes all services performed for the benefit of the ward, and does not exclude those services which only further the ward's emotional development. Courts in other jurisdictions have also allowed personal guardians of incompetent adults to receive compensation for activities which related only to the emotional needs of the ward (Metcalfe v. Nichol (1955), 225 Ark. 661, 283 S.W.2d 853; Lake v. Hope (1914), 116 Va. 687, 82 S.E. 738; May v. May (1872), 109 Mass. 252), and our construction of section 27-1 is in conformity with these decisions.

Finally, the guardian ad litem asserts, and the trial court agreed, that to allow compensation for such services would increase the possible abuses of an incompetent's estate by encouraging self-dealing and the claiming of excessive fees by the personal guardians. This argument proves too much. The dangers of excessive charges are present in the administration of all types of estates, and by guardians of the person and of the estate. The possibilities of such an abuse do not provide a rationale to allow compensation for managing the estate, or meeting the physical needs of the ward, but to deny any compensation for services to further the ward's emotional development. It should be remembered that all representatives' fees are within the strict control of the probate court (In re Estate of Rumoro (1980), 90 Ill. App.3d 383), and, even if the potential for abuse could be said to furnish a logical justification to draw the distinction made at trial, we must presume that the control of the trial court would effectively eliminate those abuses.

In conclusion, we hold that sections 11a-17 and 27-1 of the Probate Act of 1975 must be read together to permit the probate court to consider services performed exclusively for the emotional benefit of the disabled adult in setting compensation for the adult's personal guardians. Because, in determining appellants' fees, the trial court expressly declined to consider those services, we must reverse the order granting fees to the appellants and remand this cause to the circuit ...


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