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In re Estate of Rodden

Court of Appeals of Illinois, First District, First Division

January 12, 2015

In re ESTATE OF ANGUS RODDEN, a Disabled Person (Robert F. Harris, Cook County Public Guardian and Plenary Guardian of the Estate and Person of Angus Rodden, a disabled person, Petitioner-Appellee,
v.
Audrey Newton, Respondent-Appellant)

Appeal from the Circuit Court of Cook County. No. 11 P 6818. Honorable Kathleen McGury, Judge Presiding.

Affirmed.

SYLLABUS

In an action arising from an order entered by the trial court pursuant to a petition filed by the public guardian finding that respondent had breached her fiduciary duty to a disabled person for whom she had been granted power of attorney over his health care and personal estate by improperly writing checks from his account to herself, the trial court properly denied respondent's motion to vacate the trial court's order, notwithstanding respondent's contention that the order was void for lack of jurisdiction because the public guardian could only proceed by issuing a citation pursuant to section 16-1 of the Probate Act and a summons under section 2-201 of the Code of Civil Procedure, since the " petition" mechanism used by the public guardian is a recognized remedy and is the substantive equivalent of a citation to discover assets and is the functional equivalent of a summons to the extent that it commanded respondent to appear in court on a certain date, time and place to account for her actions. Decision Under

For APPELLANT: J. Laurence Kienlen, of counsel, Kienlen & Pietsch, Wheaton, IL.

For APPELLEE: Robert F. Harris, Kass A. Plain, Christopher Williams, of counsel, Office of the Cook County Public Guardian, Chicago, IL.

PRESIDING JUSTICE DELORT delivered the judgment of the court, with opinion. Justices Cunningham and Connors concurred in the judgment and opinion.

OPINION

Page 418

DELORT PRESIDING JUSTICE

[¶1] In his waning years, Angus Rodden, age 93, granted his friend and caretaker, Audrey Newton, a power of attorney over his health care and personal estate. Robert Harris, the public guardian of Cook

Page 419

County, apparently believing Newton was not being cared for in an optimal manner, filed a petition for guardianship over Rodden in the circuit court of Cook County. The court granted that petition. Newton appeared at the hearing on the guardianship and resigned as Rodden's agent under the power of attorney. These resignations were in writing and filed with the court below. After acquiring guardianship, the public guardian investigated Rodden's situation and discovered that Newton had written checks from Rodden's account to herself totaling $17,000.

[¶2] The public guardian then filed a two-count pleading entitled " Petition for Accounting under Power of Attorney for Property." The petition's prayer for relief asks, among other things, that the court order Newton to file an accounting within 21 days, hold a hearing on any improper disbursements, and enter a judgment against Newton for any money improperly taken. Copies of the checks in question were attached to the petition.

[¶3] The petition is largely based on several interrelated provisions of the Illinois Power of Attorney Act. 755 ILCS 45/1-1 et seq. (West 2012). The first requires agents to maintain records of any disbursements they make on behalf of the principal and to provide copies of those records upon request to the principal's court-appointed guardian. 755 ILCS 45/2-7(c) (West 2012). The same law also provides that the public guardian may " petition the court for an order" requiring the agent to produce her record of receipts and disbursements. (Emphasis added.) 755 ILCS 45/2-7(d) (West 2012). It specifies that if the agent fails to do so and the court finds that the agent's failure to provide her record in a timely manner to the public guardian was without good cause, the court may assess costs and attorney fees against the agent, and " order such ...


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