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In Re Estate of Galvin

OPINION FILED FEBRUARY 7, 1983.

IN RE ESTATE OF HAROLD H. GALVIN. — (MILDRED TOBIAS, PETITIONER-APPELLANT,

v.

HAROLD H. GALVIN, RESPONDENT-APPELLEE.)



Appeal from the Circuit Court of Cook County; the Hon. Walter Dahl, Judge, presiding.

JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

After a hearing, the trial court denied the petition of Mildred Tobias (petitioner) to be appointed guardian of the estate and person of Harold Galvin (respondent). Petitioner appeals.

Petitioner called Dr. William Reotutar, a qualified physician, to testify. The doctor testified he first treated respondent in October of 1980, after respondent had been admitted to St. Anne's Hospital. Respondent was suffering from "advanced multiple arthritis." Also, the respondent had a "cerebral vascular accident" or stroke. The stroke left respondent with a weak right side. Respondent also had a "heart condition." Respondent was released from the hospital after about a month.

The witness also testified that in March of 1981, respondent was again admitted to the hospital. He had suffered "small strokes" and congestive heart failure. Respondent was in the hospital for about a month. He received treatment for his heart condition and rehabilitation for the weakness of his right side. Upon his release, respondent was ambulatory with the help of a walker or "with a cane and some help."

Respondent was readmitted to the hospital in the fall of 1981 for treatment of his heart, cerebral, and arthritic conditions. The witness diagnosed another stroke and noted that respondent was "a little bit confused at times and was a little bit agitated at times." A psychiatric consultant observed that respondent experienced "some delusions" and "hallucinations." Dr. Reotutar diagnosed the respondent as having "organic brain syndrome" which describes "behavioral disorder due to some degeneration or atrophy of the brain cells." Respondent remained in the hospital for about two months. Respondent is currently under medication for his heart condition. Failure to take the medication as prescribed could endanger his life. While his heart condition is currently stable, the condition is irreversible. Similarly, organic brain syndrome is irreversible and progressive. Although the doctor did not know how respondent handled his financial affairs, he believed respondent was disabled and unable to manage his affairs. On cross-examination the doctor testified that the respondent had made some recent improvement. He stated the respondent was "more oriented and more realistic."

Under questioning by the trial judge, respondent testified he owns the three-flat building in which he lives. He occupies the basement apartment with two men, John and Mike. They do not pay rent but respondent does collect rent from the other two apartments. Respondent handles his own financial affairs and has a checking account which currently has a balance of $350. Respondent receives social security of about $550 per month. Respondent did not believe he had a heart condition but he continues to take the medication prescribed by the doctor.

Under adverse examination by counsel for petitioner, the respondent testified he never had a checking account, he invented the snowmobile, at one time he had a pet black widow spider, and he could produce fire by pointing his finger. He also testified that John and Mike sometimes prepare his meals but he can and sometimes does prepare his own meals. He stated he could shop by himself and go to the laundromat with use of his walker and pulling a shopping cart. He testified he was able to take care of himself and did not want a guardian.

During the examination of respondent, the trial judge interrupted the proceedings and stated, "There is no way in God's world that I am going to adjudicate him a disabled person. He is physically suffering from some disability. * * * He is eccentric * * * but there is no way I am going to adjudicate him in need of a guardian. * * * He lives a bizarre, strange life. I might not want to do it, but unless you can make an offer of proof that is going to show me that he does not understand the things he's doing — . He understands. * * *."

Thereafter, counsel for petitioner made an oral offer of proof that John and Mike would testify respondent had no concept of time relationship, believed he had been a co-worker with the Shah of Iran, and the men plan to move out of respondent's apartment so that respondent would be left alone. In addition, petitioner's attorney offered to call Lorraine Polinski, cousin of the respondent, for examination under Supreme Court Rule 238 (87 Ill.2d R. 238). The attorney stated this witness would testify that she had hired an attorney and that "[s]he insisted a will be drawn, naming her as executor of this estate." The witness has recommended to respondent that he go to Oak Forest. Also, the respondent is "constantly" at petitioner's home where she and her mother "take care of" the respondent. In addition Lorraine Polinski took the respondent outside without shoes or stockings and wearing only slippers during subzero weather. Also, "another neighbor" would testify that when respondent went to the hospital his shopping and other needs were provided by the petitioner. The trial judge refused the offer of proof and denied the petition.

In this court, petitioner contends the decision of the trial court was against the manifest weight of the evidence and petitioner was denied due process because the trial judge abused his discretion and did not allow her to a full opportunity to present her case. We disagree.

I

• 1 A trial court is mandated to adjudicate a person incompetent and appoint a guardian only when the alleged incompetent is "not fully able to manage his person or estate * * *." (Ill. Rev. Stat. 1981, ch. 110 1/2, pars. 11a-2, 11a-3.) The pertinent statute applicable to the case before us was amended effective as of September 16, 1979. This amendment has been referred to as "a considerable refinement and development over the previous provision * * *." (In re Estate of Mackey (1980), 85 Ill. App.3d 235, 238, 406 N.E.2d 226.) The pertinent statute provides (Ill. Rev. Stat. 1981, ch. 110 1/2, pars. 11a-2, 11a-3):

"§ 11a-2. `Disabled person' defined. `Disabled person' means a person 18 years or older who (a) because of mental deterioration or physical incapacity is not fully able to manage his person or estate, or (b) is mentally ill or developmentally disabled and who because of his mental illness or developmental disability is not fully able to manage his person or estate, or (c) because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering."

"§ 11-3a. Adjudication of disability — Power to appoint guardian. (a) Upon the filing of a petition by a reputable person or by the alleged disabled person himself or on its own motion, the court may adjudge a person to be a disabled person and may appoint (1) a guardian of his person, if because of his disability he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person, or (2) a guardian of his estate, if ...


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