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May 9, 1996


Appeal from Circuit Court of Livingston County. No. 94P87. Honorable Charles H. Frank, Judge Presiding.

Petition for Rehearing Denied June 27, 1996. Released for Publication June 27, 1996. As Corrected August 27, 1996.

Presiding Justice Cook delivered the opinion of the court: Honorable Robert W. Cook, P.j., Honorable Robert J. Steigmann, J., Honorable John T. McCULLOUGH, J., Concurring.

The opinion of the court was delivered by: Cook

PRESIDING JUSTICE COOK delivered the opinion of the court:

An incompetent adult appeals the trial court's approval of a settlement in which the guardian of her estate transferred title to her home (and paid $3,020 to have it emptied, $2,500 of which it borrowed against the estate) in satisfaction of a $18,000 veterinary bill for boarding her cats, without receiving any actual evidence regarding the value of the home or inquiring into the validity or reasonableness of the bill. We reverse and remand.

On May 24, 1994, Myrtle Mabry was admitted to Pekin Memorial Hospital and treated for congestive heart failure, pulmonary edema and high blood pressure. In a May 26 letter to Curtis Myers, Mabry's attorney, Dr. John Lovell, her physician, stated Mabry showed "signs of dementia, probably an Alzheimer's type." Observation notes by hospital staff supported the conclusion there was some dementia.

On May 27, Gerald F. and Francis Ann Roberts (Gerald and Fran, respectively, collectively referred to as the Robertses) filed a petition for guardianship of Mabry. The circuit court found Mabry disabled based on the report of Dr. Lovell and the observation notes and appointed the Robertses temporary guardians of the estate and the person. The Robertses were named in part because of a power of attorney Mabry executed in September 1991, which named the Robertses as her attorney with respect to business affairs and indicated a preference that they be named as guardian of the estate and/or of the person if such ever became necessary. Robert Follmer was appointed Mabry's guardian ad litem (GAL).

The first hearing on the petition came on June 24, before Judge Frobish. In addition to the above information, the court also received the report of Dr. Larry Stalter, from the Livingston Manor Nursing Home. Dr. Stalter confirmed the findings of dementia, and stated "it is my general feeling that she would not be able to manage her affairs at home." He suggested a formal psychiatric evaluation to "help us further guide placement and therapy in the future."

At the hearing Mabry said she did not believe the power of attorney was still in effect because she had earlier revoked it. Myers, who drafted the power, said Mabry had at times directed that it be rescinded but at other times had directed that it remain as it was, and said "she did not ever follow through with rescinding it." Mabry also said that she did not wish the Robertses to be her temporary guardians. The court left Fran as temporary guardian of the person, but made the Bank of Pontiac (bank) temporary guardian of the estate, conditioned on its filing an acceptance of office, which it did.

GAL Follmer said Mabry had no objection to Myers continuing his participation in the matter despite his earlier representation of both her and the Robertses. Follmer went further and stated that "I as GAL will even waive any conflict that he may have. I think it's best to have someone familiar with the situation involved anyway."

The next hearing occurred on August 30. The court considered an August 17 letter from Ann James, a licensed social worker, in which she called Mabry "a delightful person with no signs of psychiatric illness," but nevertheless recommended guardianship over Mabry's business matters and some degree of guardianship over her person concerning living arrangements, because of difficulties with her short-term memory. Follmer said Mabry was basically in agreement with that letter, and her "main concern is being able to go clean out her house." On September 19, the court appointed the bank as plenary guardian of the estate and Fran as limited guardian of the person. Specifically, Fran was to help Mabry find an apartment until she could return home. Mabry was allowed to clean her home out, but was not allowed to live there until it had been certified habitable by the County Public Health Department or some other responsible agency.

Meanwhile, on July 14, Dr. D. W. Schleder, a veterinarian, filed a claim against Mabry's estate for $18,040.70 for "boarding, veterinary services and hospital care for 12 animals for one year and ten months." The number of animals (all cats) ranged from 12 to 2, and the balance of $18,040.70 was run up between April 29, 1993 (when there was a credit balance of $310.20 on the account), and May 31, 1994, when Schleder destroyed all remaining animals. The final balance took into account the credit of $310.20 and $3,706.64 which was paid on the account between April 1993 and June 1994, meaning a total of $22,057.54 in charges were incurred in the 13 months.

Judge Frobish recused himself due to business contacts with Schleder, and this claim was transferred to Judge Frank.

The bank, as plenary estate guardian, waived all issues (e.g., reasonableness of charge, necessity of services and validity of bill) except Mabry's competence to initially enter into contracts in its answer to Schleder's motion for summary judgment. The court granted summary judgment except as to Mabry's competence because of the bank's waiver. Trial on the competence issue was set for Monday, January 23, with experts to be disclosed by January 1.

On, Friday, January 20, the bank for the first time notified the court and counsel of an expert whose testimony it wished to introduce, and moved for a continuance to depose that expert. The court denied the continuance, suggesting the testimony would likely be barred because of the violation of the disclosure deadline. The bank and Schleder then reached a settlement on January 23, just before trial. They agreed that in satisfaction of the claim the bank would transfer title to Mabry's home to Schleder, pay the 1994 property taxes, and ...

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