A Step By Step Guide To The Contested Adult Guardianship

4/19/2017A Step by Step Guide To TheContested Adult GuardianshipP R E S E N T E D B Y: K E R R Y R . P E C K , E S QF O R M E R C H A I R , E L D E R L AW S E C T I O N C O U N C I L4 TH A N N U A L E L D E R L AW B O OTC A M PT H U R S D AY, A P R I L 2 7 , 2 0 1 7B R E A KO U T S E S S I O N 3For Discussion Today . What do you do when things become adversarial? This session will discuss: Litigating IncapacityBattle for Guardian (Cross Petitions)Removal of GuardianRemedies Under the Power Of Attorney (POA)A discussion of discovery and the use ofexpertsPECK RITCHEY, LLC1

4/19/2017LITIGATING INCAPACITY A Two Prong Inquiry:1.Determining the Need for a Guardian; and2.Determining who should serve as Guardian.PECK RITCHEY, LLCFirst Prong in Contested Guardianship Litigation:DETERMINNG THE NEED FOR A GUARDIAN1.) “To simply establish certain disabilities is aloneinsufficient to support the determination ofincompetency. The evidence must also show theperson’s incapacity of managing one’s person andestate.”In re Estate of McPeak, 53 Ill. App. 3d 133 (1977)PECK RITCHEY, LLC2

4/19/2017Determining the Need for a Guardian (Cont.):2.) Further, “although a person may be disabled inthe statutory sense a guardian is appropriateonly if the alleged disabled person is not capableof making and communicating responsibledecisions about his care.”In re Estate of Hickman, 208 Ill. App. 3d 265 (1991)PECK RITCHEY, LLCDetermining the Need for a Guardian (Cont.):THE GUARDIANSHIP HEARINGThe allegeddisabled personhas the right to bepresentThe rules of civilprocedure applyWitnessesgenerally includedoctors, socialworkers, caregivers& family membersPECK RITCHEY, LLC3

4/19/2017Determining the Need for a Guardian (Cont.):THE GUARDIANSHIP HEARINGCourts accord equalweight to medical andlay testimony.The alleged disabledperson must beadjudged disabled byclear and convincingevidence before aguardian will beappointed.The guardian ad litemwill frequently beappointed to serve asdefense counsel.PECK RITCHEY, LLCSecond Prong in Contested GuardianshipLitigationDETERMING WHO SHOULD SERVE AS GUARDIAN:In selecting a guardian “the best interest and welfare of theward is of paramount concern in selecting a guardian.”In re Estate of Robertson, 144 Ill. App. 3d 701 (1986)PECK RITCHEY, LLC4

4/19/2017Courts will consider the following factors when determiningwho should act as the Disabled Person’s Guardian:Recommendations ofpersons with kinship andfamily ties; relationshipbetween the DisabledPerson and the party beingconsidered for appointmentConduct by the DisabledPerson prior to beingadjudicated disabled, whichmanifests a trust orconfidence in the proposedguardian;Prior actions by theproposed guardian whichindicate a concern for thewell-being of the disabledperson;The ability of the proposedguardian to manage theDisabled Person’s estate;The extent to which theproposed guardian iscommitted to dischargingresponsibilities, whichmight conflict with his orher duties as guardian;In re Conservatorship ofBrowne, 54 Ill. App. 3d 556(1977)PECK RITCHEY, LLCDetermining Who Should Serve As Guardian:The trial court must also consider any preference of thedisabled person;In re Estate of Debevec, 195 Ill. App. 3d 891 (1990)The trend in guardianship contests is to settle mattersby appointing banks, geriatric care managers, countypublic guardians, and the Office of the State Guardian,rather than the initial cross-petitioners;PECK RITCHEY, LLC5

4/19/2017BATTLE FOR GUARDIAN (CROSS PETITIONS) Asserts that cross-petitioner or someone else should be theGuardian, or at the least, there should be Limited Guardianship May lead to cross-petitioner paying GAL’s fees if therespondent or their estate is unable to pay these fees.* See In re Estate of Bishop, 333 Ill.App.3d 1113 (2d Dist. 2002).PECK RITCHEY, LLCGrounds For Removal Of A Guardian Of ADisabled Adult:Therepresentativefails to file aninventory oraccountingafter beingordered by thecourt to do so.Therepresentativeconcealshimself orherself so thatprocess cannotbe served ornotice given tohim or her.Therepresentativebecomesincapable orunsuitable forthe dischargeof his or herduties.There is othergood cause.PECK RITCHEY, LLC6

4/19/2017REMOVAL OF GUARDIAN (CONT.) There is other good cause Neglect Deprivation Inability Felony Conviction Because no Illinois case law strictly defines the meaning of“other good cause” under §23-2, a showing of harm to theward or the failure of the guardian to fulfill his or her dutiesshould suffice as grounds for removal of the guardianPECK RITCHEY, LLCREMEDIES UNDER THE POWER OF ATTORNEY Existence of Power of AttorneyDocuments Healthcare Property Validity of Power of AttorneyDocuments Capacity Undue Influence Illinois Power of Attorney Act – 755ILCS 45/1.1 et seq.PECK RITCHEY, LLC7

4/19/2017Discovery and the Use of Experts: General rule onusing lay witnesses/testimonyRule 601: General Rule of CompetencyEvery person is competent to be a witness, exceptas otherwise provided by these rules, by other rulesprescribed by the Supreme Court, or by statuteThe above cited rule of evidence demonstratesthat pretty much any person, including lay people,can be called as a witness unless they are found“incompetent.”PECK RITCHEY, LLCLay Witness/Testimony ContinuedThree elements to consider when determining testimonialcompetency:1. The competence of the witness to observe the events in questionat the time of the occurrence;2. The capacity of the witness to recollect the events; and3. The capacity of the witness to narrate the facts.With regard to thethird element, awitness must beable:to understandthe questionsthat are asked,to frameintelligentanswers to thosequestions, andto understandthe moralresponsibility totell the truth.PECK RITCHEY, LLC8

4/19/2017Rule 602: LACK OF PERSONAL KNOWLEDGEA witness may not testify to a matter unless evidence is introducedsufficient to support a finding that the witness has personal knowledgeof the matter. Evidence to prove personal knowledge may, but need not,consist of the witness' own testimony. This rule is subject to theprovisions of Rule 703, relating to opinion testimony by expert witnesses.In Trojcak v. Hafliger, son and daughter witnesses provided testimonyregarding whether they felt that on the day the decedent executed herwill she was capable of performing and understanding such an act. 7 Ill.App. 3d 495 (1972). The Court found that while the law permits a laywitness to give his or her opinion concerning testamentary capacity onthe basis of observations made by the witness, the witness may not offeran opinion concerning whether the testator was capable of executing avalid will on the day of the execution when the witness did not observethe testator on that day. Id. at 500.PECK RITCHEY, LLCCharacter EvidenceIn contested guardianships inparticular, character evidence mayprove to be very useful on either sideof the case. As such, it can be veryuseful to understand the ways tohave character evidence admitted, orexcluded, depending on which sideof the table you are on.For example:PECK RITCHEY, LLC9

4/19/2017HypotheticalImagine that that both Bill andJohn want to be guardian fortheir mother, Mary, and filecross-petitions for guardianship.An amicable resolution to thematter has proven impossible,and the parties go to hearing onwho will be appointed guardian.You represent Bill. Bill happens toknow that John has very poorcharacter, and has been involved inviolent activities in the past. Youwant to bring to the Court’sattention the fact that John hasbeen known to get into bar fightson the weekends. Following areexcerpts of rules of evidence thatmay be hurdles for you to cross.PECK RITCHEY, LLCRule 404: Character Evidence not Admissible toProve Conduct; Exceptions; Other CrimesCharacter Evidence - Generally, evidence of a person's character or a trait of character is notadmissible for the purpose of proving action in conformity therewith on a particular occasion,except:(3) Character of Witness. Evidence of a witness's character may be admitted under Rules 607, 608, and 609. Rule 607 allows any party, including the party that called the witness, to attack a witness’s credibility.Rule 608(a) allows a witness’s credibility to be attacked or supported by testimony about the witness’s reputationfor having a truthful or untruthful character or by opinion testimony on the witness’s character. However,evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked. Under Rule 608(b), evidence of specific instances of conduct of a witness for the purpose of attackingor supporting his credibility is generally barred. There are, however, two exceptions: (1) specific instances areprovable when they have been the subject of criminal conviction, and (2) specific instances may be inquired intoon cross-examination of the principal witness or of a witness giving an opinion of his character for truthfulness Rule 609 allows the use of certain prior bad acts and criminal convictions to impeach the credibility ofa defendant testifying on his or her own behalf. Rule 609(a)(2) permits a defendant in a criminal case to beimpeached with proof of any conviction that involves dishonesty or false statement, regardless of thepunishment; Rule 607(a)(1) allows impeachment with any felony conviction if the probative value of theconviction outweighs the prejudice to the defendant.PECK RITCHEY, LLC10

4/19/2017Opinion TestimonyOpinion testimony can, at times, be very helpful in a guardianshiphearing. Often times, opinion testimony is thought of in the context ofexpert opinions, but offering a lay witness’ opinion may prove to be helpfulas well. For example:PECK RITCHEY, LLCRULE 701: OPINION TESTIMONY BY LAYWITNESSESIf the witness is not testifying asan expert, the witness' testimonyin the form of opinions orinferences is limited to thoseopinions or inferences which are(a) rationally based on theperception of the witness, and (b)helpful to a clear understandingof the witness' testimony or thedetermination of a fact in issue,and (c) not based on scientific,technical, or other specializedknowledge within the scope ofRule 702.Per this rule, the following are factsyou may elicit from Jean or Brenda’sneighbors:1. I have seen garbage left on theproperty2. The property has had numerouscomplaints regarding noxious odor3. I often see groups of bikers going inand out of Brenda’s home4. Brenda leaves and comes home atall hours of the night5. I sometimes hear screaming andyelling coming from Brenda’s homeTherefore In my opinion, Brenda is not suitableto be a guardian for someone withdementia.PECK RITCHEY, LLC11

4/19/2017QUESTIONS?THANK YOU!Kerry R. Peck, Esq.312-201-0900kpeck@peckritchey.com12

A Step by Step Guide To The Contested Adult Guardianship For Discussion Today . What do you do when things become adversarial? This session will discuss: Litigating Incapacity Battle for Guardian (Cross Petitions) Removal of Guardian Remedies Under the Power Of Attorney (POA) A discussion of discovery and the use of experts