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In Re Estate of Bania

OPINION FILED DECEMBER 28, 1984.

IN RE ESTATE OF NELLIE BANIA (NELLIE BANIA, CROSS-PETITIONER-APPELLANT,

v.

NANNETTE J. D'ANGELO, PETITIONER; CHESTER PACYNA, CROSS-PETITIONER-APPELLEE).



Appeal from the Circuit Court of Cook County; the Hon. Richard E. Dowdle, Judge, presiding.

PRESIDING JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

Acting upon a petition and cross-petitions for appointment of guardian for a disabled person, the circuit court found cross-petitioner-appellant Nellie Bania (Nellie) totally without capacity and appointed persons other than those nominated in her cross-petition as guardians of her person and estate. Nellie appeals and raises as issues whether the circuit court erred by: (1) finding her totally without capacity; and (2) appointing guardians without giving due consideration to her nominees.

On December 16, 1983, Nannette D'Angelo and Salvadore Mendoza filed a petition in the circuit court asking to have Nellie adjudged a disabled person because of her "[m]ental instability due to complications of age and recent surgery," and to have themselves appointed co-guardians of her person and estate. The court appointed a guardian ad litem for Nellie on December 21, 1983, who, on January 17, 1984, filed her report, concluding therein that: "Nellie Bania is mostly alert. She has some confusion and forgetfulness. I do not believe she is `incompetent,' but I do believe she needs help in her tending to her basic needs and that she is subject to influence."

On May 10, 1984, Nellie filed a cross-petition to be adjudged disabled and nominated Mary Bania, wife of Nellie's nephew, as personal guardian and Leona Sonne, a real estate agent, as estate guardian. Another cross-petition was filed on May 17, 1984, by William Pacyna, Nellie's first cousin, seeking to have Mary Bania named personal guardian and Chester Pacyna named estate guardian.

At a hearing on June 7, 1984, petitioner Mendoza testified that: he has known Nellie since 1946; they are "good friends"; after Nellie's companion died in 1979, he helped her by taking her shopping, to the doctor, and, when her physical condition worsened, by feeding her; and since her hospitalization in October 1983, he has collected her social security checks and the rent from her building which he then delivered to his attorney. On cross-examination, he initially denied knowing about a quitclaim deed whereby Nellie conveyed to him and herself in joint tenancy a certain apartment building, but then admitted that Nellie told him she had executed the deed. Nellie put the property in his name because he "would be taking care of her and * * * the property." He never asked her to execute the deed. He is not willing to turn over his interest in the property, but would do so if asked by Nellie.

Petitioner D'Angelo testified that Nellie is her mother's mother's sister, or great aunt. She is unaware of any other relatives in the Chicago area. After Nellie's discharge from the hospital in October 1983, Mendoza told her that Nellie was living with Mary Bania. She, her daughters and sister are willing to care for Nellie "where she chooses to live, either in her house or in mine." On cross-examination, D'Angelo said that Mendoza's attorney asked her to be co-guardian with Mendoza, and she agreed.

Raymond Bayster, an attorney, testified that he prepared the quitclaim deed, executed on September 21, 1983, at Nellie's request. He has known Mendoza for 30 years and has done some legal work for him. He was "retained" by D'Angelo after he contacted her and explained Nellie's need for a guardian. D'Angelo offered to help Nellie, as her mother was living in Florida and was in poor health, and thus was unable to help. He explained that "[t]he word `retain' is broad," and considered D'Angelo's agreement to having her name on the petition as "retaining." He did not tell D'Angelo that Mendoza, the co-petitioner, had an interest in Nellie's property. Nellie retained him to prepare three documents before she was hospitalized: the deed; a will; and an instrument giving Mendoza power of attorney.

Nellie testified that she doesn't need someone to look after her "all the time." She does not object to Mary Bania being named guardian "to take care of" her. Nellie has no trouble collecting rents, and doesn't need anyone to look after her property, which she can handle by herself. Nellie said she hasn't seen D'Angelo much, and then said "I don't know who she is." She does not want William Pacyna or his son Chester to take care of her things. She did not retain Bayster for any legal work, and didn't sign a deed or go to his office, although she identified the signature on the deed as her own.

Cross-petitioner Pacyna testified that he is Nellie's first cousin and lives in Michigan. His son, Chester Pacyna, testified that he owns and manages two apartment buildings. A retired policeman, he would have ample time to attend to Nellie's financial affairs.

All parties stipulated to the report of a medical evaluation of Nellie submitted by Dr. Roman Solecki, which was admitted into evidence as a joint exhibit, noting that Nellie suffers from "Senile Dementias — uncomplicated * * * manifested by severe memory impairment, impaired judgment, also disoriented as to time, partially oriented to place and person."

The circuit court found Nellie to be disabled and appointed Chester Pacyna guardian of Nellie's estate and D'Angelo guardian of her person. No reasons for this decision were given at the hearing. The order entered on June 11, 1984, found Nellie "totally without understanding or capacity to make or communicate decisions regarding his/her person" and "totally unable to manager [sic] his/her estate or financial affairs." The court gave as a factual basis for this determination the medical report stipulated to by all parties "and upon a hearing of further testimony." This appeal followed.

I

Nellie contends that the circuit court's finding of total disability and its granting of plenary guardianship are not supported by the record and thereby contravene section 11a-3(b) of the Probate Act (Ill. Rev. Stat. 1983, ch. 110 1/2, par. 11a-3(b)), which provides, in part, that guardianship is to be utilized only as is necessary to promote the well-being of the disabled person, to protect her from neglect, exploitation, or abuse, to encourage development of her maximum self-reliance and independence, and should be ordered only to the extent necessitated by the individual's actual mental, physical and adaptive limitations.

All the parties herein stipulated, however, that Nellie was disabled. The "limited capacity" argument being put forth on appeal was never raised in the circuit court. Indeed, the record reflects that the court's inquiry was limited from the outset to a determination of who should be appointed guardian. At the beginning of the hearing the court asked whether Nellie was "disabled under the statute," and, upon being advised by counsel that she was, stated that "the question is who should be the guardian of her estate and person." Later the court sustained Nellie's objection to ...


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