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In Re Estate of Robertson

OPINION FILED MAY 14, 1986.

IN RE ESTATE OF GEORGE EDWARD ROBERTSON, A DISABLED PERSON (JULIE ROBERTSON FLETCHER, CROSS-PETITIONER — APPELLANT,

v.

MARY ELLEN ROBERTSON, PLENARY GUARDIAN OF THE PERSON AND ESTATE OF GEORGE EDWARD ROBERTSON, A DISABLED PERSON, PETITIONER-APPELLEE).



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

JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Mary Ellen Robertson filed a petition, and her daughter Julie Robertson Fletcher filed a cross-petition, each seeking to have George Edward Robertson, the petitioner's father-in-law and cross-petitioner's grandfather, declared a disabled person and seeking to be appointed guardian of his person and estate. After a trial, the trial court found George to be disabled as of a date two years before the petition was filed, and appointed Mary Ellen as guardian. The court also ordered Julie, who had lived with George since 1976 and had assisted him with financial affairs, to file an accounting, and to turn over assets held in a joint tenancy savings account.

Julie appeals, contending that the trial court had no authority to enter a nunc pro tunc order adjudging George to be disabled; that the court erred in entering the turnover order; that the court erred in ordering Julie to file an accounting; and that the court's appointment of Mary Ellen as guardian, instead of Julie, was against the manifest weight of the evidence.

On June 14, 1984, Mary Ellen filed her petition, and the court appointed a guardian ad litem for George with a hearing set for July 12, 1984. Summons was placed for service on June 15, 1984. Service was attempted on June 20, 1984, but was returned, marked "not found."

On July 12, 1984, Julie and her husband Larry, who had lived with Julie and George since 1978, appeared in court and submitted to its jurisdiction. The court ordered that all George's individual assets were to remain in status quo without transfer or encumbrance. The court also ordered an alias summons to issue upon George, and enjoined and restrained the Fletchers from directly or indirectly interfering with or preventing service of process on George. On July 14, 1984, however, Julie and George left Illinois for a Caribbean cruise. Julie testified that at the time they departed she was aware that the court order prohibited her from interfering with service of summons on George, but that she felt going on a cruise did not prevent service. On August 28, 1984, George was served.

On September 11, 1984, the court approved the report of the guardian ad litem. The guardian ad litem reported that he first met with George on July 31, 1984, and then talked with Julie. He learned that all household bills were paid by Julie. Originally, George signed blank checks from his La Salle National Bank account, and Julie used those checks to pay bills. Later the La Salle National Bank account was transferred into a Bell Federal account held jointly by Julie and George. In addition to $38,000 in the Bell Federal account, there was $11,000 in a Citicorp joint account, but Julie had pledged this account as collateral for a car loan and other advances. Additionally, George had given Julie bonds which she converted to a certificate of deposit. The certificate was held as security for a $35,000 loan to Larry, which he used to start a tool business. The guardian ad litem concluded that George was in good health, happy in his home and did not need a guardian of his person. He did, however, recommend that a guardian be appointed for George's estate because he could not manage his financial affairs. "He was in poor memory and does not have the slightest idea of the location or the size of his assets. The informal manner in which his bills and expenses are paid do not adequately protect his estate." At the same hearing, Julie was granted leave to file her cross-petition, in which she asked to be appointed guardian.

On November 27, 1984, Patricia Harvey, George's niece, was granted leave to intervene in the proceedings. She charged that the Fletchers had been aware of George's incompetency and took advantage of his condition by directing him to withdraw funds from a savings account at First National Bank of Chicago containing $10,000 held in joint tenancy with George and Patricia and transfer those monies to the Fletchers.

On December 19, 1984, Mary Ellen filed a motion to bifurcate the hearing on the petition for adjudication of disability and the petition for appointment of a guardian. The motion stated that Julie wrongfully transferred, depleted and otherwise converted the assets and funds of George, including three co-operative apartments, over $25,000 in bonds, and funds in accounts at Citicorp Savings, Bell Federal and Skokie Federal.

On January 3, 1985, the trial court granted the parties' joint motion to reschedule the hearing and that they be advised of the issues before the court. The agreed order also stated that both sides could amend their pleadings. Mary Ellen filed an amended petition which included allegations that Julie, who had acquired domination and control over George, had wrongfully converted assets and funds belonging to George. Mary Ellen requested that she be appointed guardian; that Julie be required to file an accounting of George's assets; and that constructive trusts be imposed on various assets wrongfully converted by Julie. Julie filed no answer to the amended petition, but George's counsel filed an answer signed and verified by counsel. The answer requested that Julie be appointed guardian and denied any wrongdoing on Julie's part.

The trial began, but George was not present because of recent surgery. George's counsel conceded that George was in need of a guardian because he was confused, senile, and in poor health. Apparently by agreement, the court stated there were two issues: which individual should be appointed guardian and the length of time George had been disabled.

Richard Gould, the guardian ad litem, testified to the facts and opinions contained in the aforementioned report. He also stated that when George was asked whether he owned any real estate, he only referred to the co-operative apartment in which he lived with Julie. George did not mention the other two apartments which Julie and he had purchased in 1984. Julie later testified that George did not attend the closings, but signed the papers at home.

Mary Ellen testified that she was employed in a company as a customer service representative, a position to which she was promoted after being hired as a secretary. Her duties included taking sales telephone calls, receiving complaints, talking to customers, placing orders, and correlating information with the purchasing department. She previously was employed as a secretary for a condominium management company and for Kelly services. When her husband died, Mary Ellen acted as administrator of his estate of $66,000. She invested this money in treasury notes and certificates of deposit at several banks, and used the proceeds from the investments for living expenses.

Elizabeth Doyle, Mary Ellen's supervisor, testified that Mary Ellen was an excellent employee, showed a good grasp of business, and had a good reputation as to honesty. Her job required making calculations as to interest and discounts, and maintaining books and ledgers. Mary Ellen also chaired a task force committee addressing management problems in the office.

Mary Ellen testified further that she had known George since 1950 and had always had a good relationship with him. She saw him frequently for holidays and social gatherings, and provided extended moral support during George's wife's terminal illness. These visits with George were curtailed in April ...


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