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In re Estate of Margaret Ann Shull

April 06, 1998

IN THE MATTER OF THE ESTATE OF MARGARET ANN SHULL, A DISABLED PERSON, KEVIN COLE, TEMPORARY GUARDIAN, PETITIONER-APPELLANT,
v.
SHULL, GUARDIAN OVER THE PERSON OF MARGARET ANN SHULL, AND MAGNA TRUST COMPANY BANK, GUARDIAN OF THE ESTATE OF MARGARET ANN SHULL, RESPONDENTS-APPELLEES, AND KEHART, SHAFTER & WEBBER, P.C., INTERVENORS-APPELLANTS.



Appeal from Circuit Court Macon County

The opinion of the court was delivered by: Justice Steigmann

No. 97P88

DONALD

Honorable John L. Davis, Judge Presiding.

In April 1997, the trial court conducted a guardianship hearing and subsequently entered orders (1) adjudicating Margaret Ann Shull a disabled person, (2) appointing a family member guardian of her person, and (3) appointing a bank guardian of her estate, all pursuant to sections 11a-3 and 11a-12 of the Probate Act of 1975 (Act) (755 ILCS 5/11a-3, 11a-12 (West 1996)). In May 1997, the court conducted a hearing on the petition for attorney fees (totalling $3,061.25) and costs (totalling $304) filed by the attorneys for petitioner and temporary guardian, Kevin Cole. The court found that the fees sought were excessive and not in the best interest of the estate and awarded $500 in attorney fees and nothing in costs.

Cole and his attorneys, the firm of Kehart, Shafter & Webber, P.C. (the firm), appeal, arguing that the trial court abused its discretion by ordering Margaret's estate to pay only $500 in attorney fees and nothing in costs. We reverse and remand.

I. BACKGROUND

In February 1997, Cole engaged Heidi Balsley, an attorney with the firm, to represent him in seeking a guardianship over Margaret, his 87-year-old great-aunt. Margaret had injured her leg and had been hospitalized prior to being moved to a nursing home. After Margaret's guardian ad litem found that she was confused and unable to make decisions, Cole became concerned that Margaret's physical needs would not be met unless a plenary guardian was appointed. Cole was also concerned about her financial situation. He had learned that in August 1995, Margaret had executed a power of attorney naming an insurance agent, Mark Younker, as her attorney-in-fact and agent, and that soon thereafter, Younker had executed a $55,000 promissory note representing a loan to himself from Margaret.

Because of Cole's concerns about Margaret's physical and financial well-being, he had Balsley file a petition for temporary guardianship of Margaret's person and estate in February 1997. In March 1997, the trial court appointed Cole temporary guardian of Margaret's person and estate and authorized letters of office to issue.

Although the circuit clerk issued letters of office, they had no legal effect as to the estate because the power of attorney executed in Younker's favor remained in effect. As a result, Cole was unable to fulfill his statutory obligations as temporary guardian of Margaret's estate. Balsley wrote and telephoned Younker, requesting that he resign his agency and power of attorney. When Younker did not respond to Balsley's informal methods to resolve the conflict, Balsley filed a petition in March 1997 on Cole's behalf to revoke the agency between Younker and Margaret. Only after Balsley filed the petition to revoke, obtained formal service on Younker, and set the matter for a judicial hearing did Younker voluntarily resign his position and repay the $55,000. After Younker's resignation, Balsley moved to vacate the petition to revoke.

As temporary guardian, Cole conducted a preliminary investigation into Margaret's assets, and Balsley filed an inventory on Cole's behalf in April 1997. Prior to the expiration of Cole's tempo- rary guardianship, Balsley filed a petition for plenary guardianship of Margaret's person and estate. Balsley also filed a physician's report on the petition, setting forth the medical reasons why Margaret needed a guardianship.

After filing the guardianship petition, Cole discovered that Margaret's grandson, Donald Shull, also wanted to be guardian of her person. Balsley arranged a meeting between Cole, Shull, and Shull's attorney to resolve that dispute and other concerns. Cole and Shull subsequently entered into a stipulation of guardianship, which provided, in relevant part, the following: (1) Shull would serve as guardian of Margaret's person; (2) Magna Trust Company Bank (Magna Bank) would serve as guardian of her estate; (3) Shull agreed not to cancel Margaret's doctors' appointments or interfere with her recommended course of treat- ment; (4) Shull agreed to inform Cole about Margaret's medical and health care problems; and (5) Shull agreed not to deny Cole access to and visitation with Margaret. Balsley prepared and drafted the stipulation, which the trial court later incorporated into its order.

Because Cole and Shull agreed to a stipulation of guardianship, the trial court during the guardianship hearing only heard evidence necessary to establish (1) Margaret's need for a guardian of her person and estate, and (2) the terms of the stipulation.

After appointing the guardians of Margaret's person and estate, the trial court ordered the estate to pay the guardian ad litem $684 in fees for 7.6 hours of work, as requested by the guardian ad litem. Neither Cole nor Shull objected to the guardian ad litem's request. During that same hearing, ...


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