Court of Appeals of Illinois, First District, Third Division
As Corrected. As Corrected December 16, 2014.
Appeal from the Circuit Court of Cook County. No. 11 P 6051. Honorable Carolyn Quinn, Judge Presiding.
The denial of a petition under section 2-1401 of the Code of Civil Procedure seeking to vacate an order adjudicating petitioner as disabled and appointing a limited guardian for her estate and person was affirmed on appeal, since petitioner failed to present and support with facts the newly discovered evidence she claimed existed that would have prevented the trial court from entering the order in the underlying proceedings if it had known those facts and she did not establish that enforcing the appointment of the limited guardian would be " unfair, unjust, or unconscionable."
For APPELLANT: Ilia Usharovich, Wheeling, IL (Ilia Usharovich, of counsel).
For APPELLEE: Office of the County Public Defender, Chicago, IL (Robert F. Harris, Kass A. Plain, Alpa J. Patel, Nathan Goldenson, Jean M. Agathen, of counsel).
JUSTICE MASON delivered the judgment of the court, with opinion. Justices Lavin and Hyman concurred in the judgment and opinion.
[¶1] Petitioner Mary Lou Walker appeals the trial court's order denying her petition for relief under section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)) seeking to vacate an order adjudicating her disabled and appointing a limited guardian of her estate and person. Walker claims the trial court's order must be vacated because she was denied effective assistance of counsel during the underlying proceedings where her court-appointed counsel also served as her guardian ad litem creating a per se conflict of interest. Walker also claims the lack of independent counsel and procedural deficiencies during the guardianship proceedings deprived her of due process. Finally, Walker claims her section 2-1401 petition should have been granted to prevent an " unfair, unjust, or unconscionable" result because she was not disabled after the order was entered. Finding no error in the denial of Walker's section 2-1401 petition, we affirm.
[¶3] In September 2011, the North Shore Senior Center located in Northfield, Illinois contacted the public guardian's office regarding Walker. On October 11, 2011, Dr. Geoffrey Shaw, a board-certified geriatric psychiatrist, evaluated Walker at the North Shore Senior Center and prepared a written independent medical evaluation. At the time of the evaluation, Walker was 72 years old. According to the evaluation, Walker's house was in violation of multiple housing codes and plans existed to demolish it. As a result of the housing code violations, Walker could not live in her house and was living in her car located in a grocery store parking lot. After her car was totaled in an accident, Walker began residing in motels.
[¶4] Dr. Shaw identified Walker as suffering from dementia and experiencing deficits in her short-term memory with severely impaired executive functioning. Based on his evaluation of Walker and his expertise as a board-certified geriatric psychiatrist, it was Dr. Shaw's opinion to a reasonable degree of medical and psychiatric certainty that Walker was " totally incapable of making her own personal and financial decisions." Dr. Shaw noted that Walker did not believe she required a guardian. The written evaluation was filed with the trial court on October 17, 2011.
[¶5] On October 17, 2011, the office of the Cook County public guardian filed a petition for the temporary appointment of a guardian of Walker's estate and person. The public guardian indicated that Walker, who identified herself as a former practicing attorney, was a 72-year-old woman with a diagnosis of dementia. The petition stated Walker's home was uninhabitable and the Village of Northbrook obtained a no-occupancy order and was seeking demolition.
The petition also stated Walker had been living in her car with her longtime male companion until an accident " totaled" the car. On October 17, 2011, the trial court entered an order appointing Kathleen Meersman-Murphy as guardian ad litem for Walker. The order directed Meersman-Murphy to: (1) interview Walker; (2) inform her orally and in writing of the petition's contents and of her rights under section 11a-11 of the Illinois Probate Act of 1975 (755 ILCS 5/11a-11 (West 2010)); (3) elicit Walker's position regarding guardianship; and (4) file a written report.
[¶6] Meersman-Murphy made several unsuccessful attempts to contact Walker before seeking the assistance of a social worker at North Shore Senior Center. On October 19, 2011, the social worker met Meersman-Murphy at the Best Western motel in Morton Grove where Walker had been staying. Meersman-Murphy knocked on the door of room 109 and Walker's male companion answered the door and invited her into the room to wait for Walker, who was indisposed. The motel room was very cluttered with boxes stacked from floor to ceiling on two of the walls and two dogs were also in the room.
[¶7] After Walker came out of the bathroom, Meersman-Murphy introduced herself and explained the nature of her visit. Walker was properly attired, but she became increasingly more agitated as their conversation continued. Meersman-Murphy reviewed with Walker the " Statement of Rights and Petitions for Temporary and for Plenary Guardianship" orally and provided her with the statutory required written statement of rights pursuant to section 11a-11. Walker refused to accept the written statement of rights or copies of the petition and threatened to rip them up. Walker acknowledged the hearing scheduled for the following day and Meersman-Murphy stressed the importance of her attending that court proceeding. Walker repeatedly told Meersman-Murphy she would hire her own lawyer, she did not want a court-appointed lawyer and she did not want the office of public guardian to become her guardian. Meersman-Murphy informed Walker of Dr. Shaw's report and Walker claimed " he only asked stupid questions" and denied any difficulty answering his questions.
[¶8] On October 20, 2011, the trial court held a hearing on the return of the petition for appointment of temporary guardian, and Walker was present at that hearing even though she had not yet been formally served with the petition. The trial court continued the matter for status on November 28, 2011, and directed Meersman-Murphy ...