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10/18/96 ESTATE JOHN F. WELLMAN (SAMUEL H. YOUNG

October 18, 1996

IN RE ESTATE OF JOHN F. WELLMAN (SAMUEL H. YOUNG, APPELLANT; PATRICK T. MURPHY, APPELLEE).


The Honorable Justice Freeman delivered the opinion of the court. Chief Justice Bilandic took no part in the consideration or decision of this case. Justice Heiple, concurring in part and dissenting in part. Justice McMORROW joins in this partial concurrence and partial dissent.

The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

These consolidated appeals arise out of a series of events during the last years in the life of John Wellman. He executed a durable power of attorney, in which he appointed his attorney, Samuel Young, as his agent. Wellman also established joint tenancies with Young in several accounts. The circuit court of Cook County: adjudicated Wellman mentally disabled and appointed Patrick Murphy, the public guardian of Cook County, as Wellman's plenary guardian; restored Wellman to competency and discharged Murphy; and granted Murphy leave to appeal as Wellman's plenary guardian. Wellman died. Lastly, the trial court granted the fee petition of Wellman's guardian ad litem.

In an unpublished order (Nos. 1-90-3008, 1-90-3011, 1-91-2055, 1-92-1983 cons. (unpublished order under Supreme Court Rule 23)), the appellate court: held that Murphy had standing to appeal, severed the joint tenancies, upheld the fee award to Wellman's guardian ad litem, and held that Wellman's death rendered moot the parties' remaining issues on appeal. We allowed leave to appeal (155 Ill. 2d R. 315(a)). We now reverse the appellate court's severance of the Wellman-Young joint tenancies, and affirm the appellate court's upholding of the guardian ad litem's fee award and dismissal of the remaining issues.

BACKGROUND

The record contains the following facts that are pertinent to our disposition of the issues raised on appeal. John Wellman was born in 1900. A certified public accountant, he was a self-employed businessman and stock trader during his lifetime. By early 1990, he had accumulated assets totalling approximately $850,000 of which $650,000 were invested in United States Treasury bills, savings and checking accounts, and stock.

Samuel Young was admitted to the Illinois bar in 1948. In 1986, Wellman first employed Young concerning the probate of an estate. Wellman was the executor of the estate; he had been a joint tenant with the testator in certain accounts. Wellman continued using Young's services concerning, inter alia, tax preparation, real estate matters, and the management of Wellman's property.

In a letter to Young dated March 21, 1988, Wellman stated in writing what he had previously told Young on "many occasions." Wellman, having no family, asked for Young's assistance in handling his financial affairs. Wellman also wanted Young to look after his affairs if he should become incapacitated. On December 27, 1988, Wellman executed a durable power of attorney in which he appointed Young as his agent. See generally 755 ILCS 45/1-1 et seq. (West 1992). Wellman granted Young broad authority to act for him whether competent or incompetent.

On December 1, 1989, Wellman and Young exchanged two letters. The first letter, from Wellman to Young, confirmed: Wellman's previous request for Young to assist him in managing his property, Young's agreement to provide such assistance, and, in consideration thereof, Wellman's promise to place his property in joint tenancy with Young with right of survivorship. Also, during Wellman's life, all of the assets and income would be used for Wellman.

The second letter, from Young to Wellman, acknowledged: Wellman's decision to make Young his "partner" in managing his property, Wellman's decision to place his property in joint tenancy with Young to avoid probate, Young's agreement to look after Wellman and to see that Wellman had medical and health care, Young's agreement not to spend or use Wellman's property for any purpose other than for Wellman's benefit, and Wellman's power to revoke the joint tenancies at any time and to make gifts to others at his death.

On December 7, 1989, Wellman and Young visited the Northern Trust Bank in Chicago. They spoke to Paul Larson, who had been Wellman's personal banker since 1984. Wellman and Young instructed Larson to place Wellman's savings and checking accounts in joint tenancy. Larson refused. Eventually, Wellman and Young closed the account, totalling $188,000, but returned when the bank agreed to the Wellman-Young joint accounts.

After visiting the Northern Trust Bank, Wellman and Young went to the Federal Reserve Bank in Chicago. They spoke to Andrew Vlahos, who had served Wellman since 1985. They discussed Wellman's United States Treasury Direct Account and joint tenancy with Young. On January 30, 1990, the account was placed in the name of Wellman and Young in joint tenancy with right of survivorship.

In December 1989, Vlahos contacted Assistant Illinois Attorney General Ann Parisi. Vlahos told Parisi that Young possibly was exploiting Wellman. On December 21, 1989, Parisi visited Wellman to investigate whether any laws had been violated and whether Wellman had been financially exploited in any way.

On January 7, 1990, the Illinois Attorney General's office referred the matter to the Cook County public guardian's office to investigate whether Wellman needed a guardian. On March 30, 1990, Murphy petitioned the trial court to be appointed plenary guardian of Wellman's person and estate. On April 3, 1990, the trial court appointed Sandra Thiel as Wellman's guardian ad litem. On May 8, 1990, at the close of a hearing, the trial court adjudicated Wellman mentally disabled and appointed Murphy plenary guardian of Wellman's person and estate. On May 24, 1990, the trial court, granting Murphy's petition, entered an order freezing the Wellman-Young joint accounts at the Northern Trust Bank.

On June 13, 1990, Young petitioned the trial court to vacate the appointment of the plenary guardian for Wellman. In a separate filing, Young petitioned the court to vacate the order freezing the bank accounts. On June 14, 1990, Wellman's attorney, Robert Downing, petitioned the trial court to restore Wellman to competency and discharge Murphy and Thiel, and to vacate the order freezing the bank accounts. Also, on June 24, 1990, Downing moved to vacate the May 8, 1990, guardianship order specifically because it violated Wellman's due process rights and the durable power of attorney.

On July 13, 1990, Murphy moved to dismiss Young's petition to vacate the appointment of a plenary guardian for Wellman. In a separate filing, Murphy moved to dismiss Downing's petition to restore Wellman. Murphy also filed answers to Young's and Downing's petitions. On July 24, 1990, Murphy petitioned the trial court to: (1) revoke the durable power of attorney in which Wellman appointed Young as his agent, and (2) sever all of the joint tenancy accounts.

On September 12, 1990, Murphy moved for summary judgment on Young's and Downing's petitions to vacate the guardianship order. On September 19, Young cross-moved for summary judgment on his petition.

In orders entered on October 16 and 17, 1990, the trial court granted Murphy's motion for summary judgment and denied Young's and Downing's petitions on most issues. On October 19, 1990, Downing (Docket No. 1-90-3008) and Young (Docket No. 1-90-3011) each appealed from the trial court's denial of their respective petitions.

From January 7 through March 28, 1991, the trial court held hearings on Murphy's July 24, 1990, petition to revoke the durable power of attorney and sever the joint tenancies. On May 8 through 10, 1991, the court held hearings on Downing's June 14, 1990, petition to restore Wellman.

On June 3, 1991, the trial court entered a "final judgment order" dismissing Murphy's petition and granting Downing's petition. The court terminated the adjudication of mental disability, restoring Wellman to competency. The court also vacated its order freezing the Northern Trust Bank accounts.

On June 12, 1991, Murphy filed in the trial court a "Motion for Leave to Appeal" to the appellate court. In the motion, Murphy acknowledged that by terminating the adjudication of mental disability, the trial court restored Wellman to competency and discharged Murphy as his guardian. Murphy further stated:

"3. That having been discharged as guardian of the estate and person of John F. Wellman, the Public Guardian has no standing to act on behalf of the estate in any respect including appeal of the June 3, 1991, final judgment order.

4. That it would be a circumvention of the Illinois Supreme Court Rules and clearly against their spirit and intent to deny the estate any opportunity to appeal from this final judgment order.

5. That there is no other party available to take an appeal of such order other than the Public ...


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