23 Order Filed: October 25, 2016
to Publish Granted: November 22, 2016
from the Circuit Court of St. Clair County. No. 13-P-273
Honorable Christopher T. Kolker, Judge, presiding.
Attorneys for Appellant Edward J. Kionka, Lesar Law Building
Attorneys for Appellee Jayni A. Desai, Alana I. Mejias,
Charles W. Courtney, Jr., Courtney, Clark & Mejias, P.C.
PRESIDING JUSTICE SCHWARM delivered the judgment of the
court, with opinion. Justices Cates and Moore concurred in
the judgment and opinion.
SCHWARM PRESIDING JUSTICE
1 The petitioner, Richard Ervin, the guardian of the person
and estate of Agnes Spinnie, brought this action against the
respondent, Patricia A. Gooch, among others, to recover
assets that the petitioner alleged were improperly acquired
from Agnes. After hearing evidence, the circuit court entered
judgment in favor of the petitioner and against the
respondent in the amount of $31, 733.19. For the following
reasons, we reverse the circuit court's judgment.
3 On July 5, 2007, Agnes, who was born on January 13, 1922,
executed an Illinois Statutory Short Form Power of Attorney
for Property, appointing the respondent as attorney-in-fact.
Agnes also executed a power of attorney for healthcare,
naming the respondent as attorney-in-fact. At about the same
time, Agnes received a substantial settlement in excess of
$400, 000, as compensation for her deceased husband's
work-related injury. Thereafter, Agnes gifted funds to her
daughters, the respondent and Helen Odell; her grandchildren,
Shelley Brown, Lisa Brown, and Barbara Davis; and her
greatgrandchild, Morgan Brown, among others.
4 On May 29, 2013, the petitioner filed a petition for
adjudication of disability and appointment of guardian for
Agnes, along with a petition to terminate the
respondent's agency under the power of attorney
documents. On the same date, the court appointed a guardian
ad litem for Agnes. On June 11, 2013, the guardian
ad litem filed his report, revealing that his
attempts to meet with Agnes "were frustrated by [her]
anger towards [her son, the petitioner, ] for filing
the" petition. Agnes informed the guardian that she had
three children and that the respondent was the oldest. Agnes
indicated to the guardian ad litem that guardianship
was unnecessary and that she did not want the petitioner
appointed as guardian. Agnes denied that she was financially
exploited. On September 24, 2013, the circuit court appointed
the petitioner as temporary guardian of Agnes's person
and estate. On this date, the circuit court also revoked the
respondent's agency pursuant to the power of attorney for
property and the power of attorney for healthcare.
5 After an examination performed on October 20, 2013, Daniel
J. Cuneo, Ph.D., submitted a report, which was later admitted
into evidence, noting that Agnes was 91 years old at the time
of the examination and that she was living at Charles
Gardens, an independent living center in O'Fallon,
Illinois. Dr. Cuneo opined that Agnes's emotional,
mental, and psychological functions were impaired and that
she required a guardian over her person and estate.
Accordingly, on November 21, 2013, the circuit court found
that Agnes was a disabled adult without capacity and
appointed permanent guardianship of Agnes's person and
estate to the petitioner.
6 On January 14, 2014, the petitioner filed an inventory of
Agnes's real and personal property, valuing her mobile
home at $21, 000; her checking account at $1, 600; and her
monthly income at $2, 002.50. Thereafter, on February 4,
2014, and also on October 10, 2014, the petitioner filed
petitions for citation against the respondent, Lisa, Shelley,
and Barbara to produce estate assets or information to
explain why approximately $358, 939 of Agnes's funds or
property had not been produced. On February 25, 2015, citing
the five-year limitations found in section 13-205 of the Code
of Civil Procedure (735 ILCS 5/13-205 (West 2014)), the
respondent filed a motion to strike and to limit the
petitioner's recovery to assets transferred less than
five years prior to the petition for recovery citation.
7 After notification that the petitioner had settled with
Lisa and Barbara, the circuit court heard evidence in
February 2015. The respondent testified that in 2007, she
"did everything" for Agnes by taking her to the
doctor, to church, and to the store. The respondent testified
that she visited Agnes two or three times a week and called
her almost every day. The respondent acknowledged that Agnes
spent the $440, 000 settlement she received in 2007 in a
short period of time. The respondent testified that Agnes
gifted funds to Lisa, ...