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In re Schmidt

September 02, 1998

IN RE CYNTHIA SCHMIDT, ALLEGED TO BE A DISABLED ADULT (WILLIAM PILARSKI, PETITIONER-APPELLANT,
v.
THOMAS SCHMIDT, RESPONDENT AND COUNTER-PETITIONER-APPELLEE; JAMES KELLY AND REHABILITATION INSTITUTE OF CHICAGO, RESPONDENTS).



The opinion of the court was delivered by: Justice Rathje delivered the opinion of the court

Appeal from the Circuit Court of McHenry County.

No. 97--PR--177

Honorable Michael J. Sullivan, Judge, Presiding.

On May 30, 1997, petitioner, William Pilarski (William), filed a petition to be appointed guardian of the person of his sister, Cynthia Schmidt (Cindy), alleged to be a disabled adult. Cindy was involved in an automobile accident on April 11, 1997, in which she suffered severe head trauma. The petition alleged that she was in a comatose state. Respondent, Thomas Schmidt (Tom), Cindy's husband of three years, filed a counterpetition to be appointed Cindy's guardian, alleging that Cindy was in a vegetative state. On June 17, William filed an amended petition to substitute Cindy's sister, Sheryl Strack (Sheryl), as the proposed guardian.

After an evidentiary hearing and consideration of the report of Cindy's guardian ad litem (GAL), Jeannine A. Thoms, on July 8, 1997, the trial court found that Cindy was a disabled person and found Tom to be qualified to act as guardian. The court appointed Tom as the plenary guardian of the person and estate of Cindy and denied William's petition to appoint Sheryl. The court further ordered that Cindy's family members be notified 72 hours in advance of any action taken pursuant to the Health Care Surrogate Act (Surrogate Act) (755 ILCS 40/1 et seq. (West 1996)), which governs private decision making for withdrawing life-sustaining treatment on behalf of a patient lacking decisional capacity. The court ordered that any decision pursuant to the Surrogate Act be based on current medical evaluations and certification and be in compliance with the Act. The court ordered that Sheryl be given reasonable access to Cindy's medical records, but granted her no authority regarding medical decisions. The court's order also established a visitation schedule for Tom, Mandy (Cindy's daughter, Amanda), and Cindy's other relatives.

William timely appeals. He argues that (1) the court erred in appointing Tom because neither the provisions of the Probate Act of 1975 (Probate Act) (755 ILCS 5/11a--1 et seq. (West 1996)) nor those of the Surrogate Act create a preference for the appointment of a spouse as guardian (implicating an evidentiary burden for the nonspouse to overcome); and (2) the court failed to make a determination regarding which proposed guardian would most likely follow the dictates of the the Probate Act (755 ILCS 5/11a--3(b), 11a--5 (West 1996)) and the Surrogate Act (755 ILCS 40/20(b)(1) (West 1996)) in caring for Cindy. We disagree, and we affirm.

At the hearing, Tom testified initially as an adverse witness. Cindy was then at the Glen Oaks Nursing Home (Glen Oaks) in Northbrook, and her treating physician was Dr. Velasco. Tom was acting as her surrogate in making medical decisions. He believed it was in Cindy's best interest that her medical records remain confidential, but he allowed his sister-in-law, Toni Schmidt (who was completing an R.N. degree) to see the records; Toni had been with Tom since the accident. Tom had previously given do-not-resuscitate (DNR) orders to the staff at Centegra Hospital, the Rehabilitation Institute of Chicago (RIC), and Glen Oaks. If named Cindy's guardian, his goal was to take care of her. This would include withdrawing nutrition, hydration, and medication upon the medical advice of two physicians. As surrogate he would try to make health care decisions in the same way that Cindy would make them. Based on his prior Discussions with Cindy and her daughter Mandy, Tom stated that Cindy does not wish to be kept alive by artificial means. She had informed them that, if she were disabled, she would want Tom and Mandy to care for her, and, if she were in a vegetative state, she would not want to live that way; that was not "life." She did not say what she would do if she were in a vegetative state but was recovering from that state. Tom agreed that Cindy had a close relationship with her daughter Mandy, her mother, her sister Sheryl, and her Aunt Kathy.

Tom received training at the RIC regarding Cindy's care. He acknowledged that he expressed his intention to terminate life support for Cindy. On June 25, 1997, he had a dispute with Cindy's family at Glen Oaks regarding Cindy's attire in relation to the temperature in the room. He was concerned about her modesty because of the way the interns picked her up and moved her around, leaving her exposed. Since then, in order to avoid confrontations, he arranged with Glen Oaks not to have Cindy's family there when he wished to visit. He denied being estranged from Cindy. His understanding of Cindy's wishes was that she would not wish to be placed on a respirator to help her breathe. However, during the first few days after the accident she was placed on a respirator; the respirator was later removed. On redirect-examination, Tom stated that the DNR and other medical decisions were based on the opinions and recommendations of Cindy's treating physicians. Tom wanted to have Cindy wear the everyday attire she had worn at the RIC. He had visited her there daily.

Cindy's mother, Sally O'Neill, who lives in Arizona, testified that, based on her Discussions with Cindy, she would want everyone to care for her and continue with the care she was getting. Sally acknowledged that Cindy would not want to live on life support. Sally had previously observed Tom get upset with Cindy, and he would sleep on the couch. He would call her a "dumb blonde" and became irritated when Cindy did not play cards the way he thought she should.

Kathleen Marie Lagerman (Kathy), Cindy's aunt who lives in Arizona, testified that she had a conversation with Tom at Centegra Hospital in Woodstock on April 14, 1997. In discussing Cindy's condition, he stated that, if she were not going to be herself, he would "end it" and disconnect her feeding tubes. Kathy was a nurse's aide. On July 4, 1997, she told Cindy to blink her eyes and open them if she knew it was Kathy. Kathy observed Cindy blink her eyes and open them in response to her question. In response to a "no" question, Cindy motioned her head from right to left. Kathy had worked with Cindy in a nursing home several years before. Cindy said she would never want to live like the patients who were unable to speak or communicate. Kathy observed Cindy cry a lot while visiting in Arizona. Tom wanted Cindy to be with him and to know where she was all the time. He made "dumb blonde" jokes about her.

Diane Haase, Cindy's sister, testified that she held an LPN. degree and had practiced nursing until six years before. On May 29, after a family meeting, Tom stated he felt it necessary to call the family to inform them of his decision. He did not believe Cindy's chances were good, and he planned on pulling her feeding tube and letting her go. On May 30 at the RIC in the presence of other siblings, he stated that he would let Cindy have six months or possibly a year as recommended by Dr. Kelly and that no one should be upset because he wanted what was best for Cindy.

The last time that Diane visited Cindy, she felt Cindy move her thumb over her fingers. She asked Cindy to close her eyes for "yes" in response to her asking Cindy whether she knew Diane was there, and Cindy responded by closing her eyes. She had not been able to respond that way after the accident. When they worked together in nursing, Cindy said she would not want to live on a ventilator, but if she had the opportunity, she would allow feeding tubes and other types of rehabilitation. If she had a 50% chance of coming out of a coma, she would want to be given the opportunity to do so. On cross-examination, Diane stated Cindy would not want to be unable to communicate with the world and would not want to continue living in that state.

Stacy Strack, Cindy's sister, visited Cindy after the accident. She videotaped Cindy on June 29 at Glen Oaks, and the tape was played before the court to depict Cindy's condition. (The tape is not part of the record on appeal.)

Sheryl Strack, Cindy's sister and proposed guardian, testified that she was an activity director at a nursing home in Belvidere. On April 15, 1997, at the Centegra Hospital in Woodstock, Tom told her he did not think Cindy would be able to live on the respirator, and he wanted to take her off the respirator to see if she survived. At the hospital the following week, Tom made jokes about the shunt that Cindy had in her brain after she came out of surgery. Sheryl also testified that Cindy responded to her questions by closing and opening her eyes. Sheryl wanted to move Cindy to a rehabilitation hospital. She did not intend to withhold nutrition, water, and medication in order to allow her to die. She thought Tom wanted to end her life prematurely and that he was a controlling person. About five years before, Cindy had told her that she would not want to ...


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