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In Re Estate of Barr

OPINION FILED MARCH 31, 1986.

IN RE ESTATE OF LEON MANDEL BARR (LEON MANDEL BARR, RESPONDENT-APPELLANT,

v.

LINDA HORWITZ, PETITIONER-APPELLEE).



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

JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

Respondent, Leon Mandel Barr, appeals from an order entered by the circuit court, probate division, adjudicating him a disabled person and appointing his sister, Linda Horwitz, plenary guardian of his person and estate pursuant to sections 11a-2 and 11a-3 of the Probate Act of 1975 (the Act) (Ill. Rev. Stat. 1983, ch. 110 1/2, pars. 11a-2, 11a-3). On appeal, respondent contends that: (1) the trial court's adjudication of disability is contrary to the manifest weight of the evidence; and (2) in the alternative, if guardianship is warranted, plenary guardianship of the estate and person is overbroad and violates the purpose of the Act.

The record reveals the following facts pertinent to this appeal. On January 17, 1983, petitioner, Linda Horwitz, filed a petition pursuant to the Act to have respondent adjudged a disabled person due to mental illness and to be appointed guardian over his person and estate. Pursuant to section 11a-10 of the Act (Ill. Rev. Stat. 1983, ch. 110 1/2, par. 11a-10), the court appointed a guardian ad litem to represent the interests of respondent. Following an interview with respondent, the guardian ad litem filed a report with the court, advising the court that respondent intended to present a defense to the petition. Thereafter, upon respondent's request, the court appointed the guardian ad litem as legal counsel for respondent.

At the guardianship hearing held on May 4, 1983, respondent, age 44, testified under adverse examination by counsel for petitioner that he has resided at The Evanston-Ridgeview, a type of halfway house in Evanston, since September 13, 1982. Prior to that time, he had lived with a roommate in Chicago for approximately 15 years until he was asked to leave because he no longer had any money with which to pay his share of the expenses. As of September 1982, respondent owed his roommate approximately $3,500.

Respondent further stated that, with the exception of a few odd jobs from time to time, he has been unemployed for the last four years. His last employment had been as a new car salesman which lasted approximately two weeks. Prior to the salesman position, he had worked for a film processing company for about one year, and for an auto parts distributorship for one year. Respondent further testified that he had a pending job offer to work for a retail tile store in Niles as a store manager. The only reason he has not accepted the offer is because he does not have enough money to pay for transportation. When queried about the details of the job offer, respondent admitted that he had never personally met with anyone at the store, but had had several telephone conversations with the management.

Respondent denied that he was mentally ill and claimed that his sister was trying to "railroad" him so that she could take the entire estate of their father, who had died in March 1982. Under his father's will, both respondent and petitioner are co-executors of the estate and are to divide the estate, valued at approximately $100,000, equally. Respondent further explained that when his mother had died in the early '70's, she had left petitioner and respondent equal shares of stock in a company owned by their uncles. When respondent received his portion of the shares in the company, he sold them back to the company for $30,000. Respondent admitted that he was bitter about the way in which his uncles had treated his mother and the fact that they had never offered him a job with the company. Between 1975 and 1977, respondent had written several letters to one of his uncles and a cousin expressing these feelings. At one point during that period, he even wrote a letter to The Wall Street Journal, informing the paper that he was contemplating a lawsuit against his uncles' company. No lawsuit was ever filed.

Respondent further stated that during the last few years of his father's life, his father had given him $25 per week for expenses. After his father's death, petitioner gave him a similar amount until he moved into The Evanston-Ridgeview.

Next, Dr. Paul R. Cekan, psychiatrist, testified on behalf of petitioner that pursuant to his contract with The Evanston-Ridgeview, he conducted a routine psychiatric evaluation of respondent in September 1982. The initial visit lasted approximately one hour. Thereafter, Dr. Cekan saw respondent four more times on an average of four minutes per meeting. Based upon these meetings and discussions with respondent's family and members of The Evanston-Ridgeview staff, Dr. Cekan diagnosed respondent as suffering from chronic undifferentiated schizophrenia. Specifically, Dr. Cekan stated that although respondent had no severe physical problems and was capable of directing himself and caring for his immediate needs, he was "chronically hostile and uncooperative" and showed "delusions of persecution, poor insight and judgment." Dr. Cekan further opined that respondent was not capable of making good financial decisions regarding large sums of money, but could manage pocket money. In conclusion, Dr. Cekan recommended that respondent be maintained as a disabled person in a halfway house setting such as The Evanston-Ridgeview.

Petitioner then testified that during the last year of her father's life, she personally gave respondent $25 per week because her father was too ill to take care of his own financial affairs. After her father's death, she decided to stop giving money to respondent. When the funding ceased, respondent became extremely angry and, on one occasion, raised an umbrella at petitioner's husband when her husband refused to give respondent any money.

Petitioner further testified that in September 1982, while she was out shopping, respondent moved into her house in Evanston with a suitcase and some personal belongings. Approximately one week earlier, respondent had telephoned her to say he had been asked to leave his apartment and planned to move in with her family. At that time, she told him that it was not possible. However, one week later, he attempted to move in, claiming that he was entitled to stay. After calling a psychiatrist friend and the Evanston police, petitioner paid for respondent to stay that night at a nearby Holiday Inn. The following day, she made arrangements for him to move temporarily to the Evanston YMCA at her expense. Petitioner then arranged for respondent to move into The Evanston-Ridgeview, and has been giving the staff $7 per week to distribute to respondent as spending money.

Following petitioner's testimony, respondent's motion to dismiss the petition on the grounds that petitioner had failed to make a prima facie case and to meet the burden of clear and convincing evidence was denied.

Next, Dr. Harry Whitely, psychiatrist, testified on behalf of respondent that he had examined respondent once for approximately one hour and a second time just prior to the hearing. In Dr. Whitely's opinion, there was no evidence of a mental disorder or schizophrenia and respondent's intellectual functioning was well above average. However, Dr. Whitely did observe that respondent was nervous and defensive about his employment. Based upon his observations, Dr. Whitely concluded that respondent was: (1) a dependent person who was embarrassed about not being more independent; (2) capable of managing his personal and financial affairs; and (3) capable of taking care of himself, although perhaps not according to the standards of others. Dr. Whitely further opined that it would be detrimental to respondent's mental health if he were relieved of all responsibilities.

Respondent then testified that his assets consist solely of 11 lots of undeveloped recreational property in Arizona which he had purchased in 1965 and had paid for in installments over a period of 12 years. He has no checking or savings accounts because he has no money. Respondent further stated that he is not certain what he will do with his one-half of his father's estate. He thought he would either leave the money where it is or invest it in something like the citrus grove he had owned in the early '70's. Respondent indicated that he understood that there were different types of financial institutions which offered various interest rates.

Regarding prospective employment, respondent stated that his most recent discussion with the tile store regarding his management position had taken place several weeks ago. In addition, he had a vending machine distributorship "already set up." However, on cross-examination, he revealed that he did not actually have either equipment or employees ready for his new vending machine venture. With respect to his father's will, respondent explained that he had been hesitant to sign any papers given to him by his sister the previous August because he had not yet talked to a lawyer. As a result, he tore up the papers she had given him. Respondent saw the will for the first time a few weeks before the hearing when he filed it in probate. His sister had made no interim attempt to file the will. Respondent further ...


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