Written by Admin | May 25, 2017 5:00:00 AM
CHICAGOLAWBULLETIN.COM THURSDAY, MAY 25, 2017 ® Volume 163, No. 102 Serving Chicago’s legal community for 162 years Ka rbi n steps in to meet needs of aging population, dying marriage M ay is designated as The guardian is required to al- Ka r b i n decision by amending Sec- Older Americans ways “promote the well-being of MODERN FAMILY tion 11a-17 of the Probate Act (755 Month. The most re- the person with a disability, to ILCS 5/11a-17), thereby clarifying cent census —con - protect him from neglect, ex- the procedures and standards to ducted in 2010 — ploitation or abuse and to en- be employed by the circuit court clearly shows that our population courage development of his max- where a guardian requests that is rapidly aging. Not only are imum self-reliance and indepen- MICHELE M. the court allow the filing of a there now more Americans over d e n ce.”755 ILCS 5/11a-3(b). JOCHNER petition for dissolution on a age 65 than at any other time in This broad language has been wa rd ’s behalf. U.S. history, but this age group construed to vest guardians with Specifically, Section 11a-17(a-5) also grew at a faster pace during expansive authority to make in- Michele M. Jochner is a partner at Schiller, establishes the standing of a the prior decade than the total nately personal decisions on be- DuCanto & Fleck LLP, after previously guardian to request that the cir- p o p u l at i o n . half of an incompetent ward, in- serving as a judicial law clerk to Illinois cuit court “authorize and direct” Supreme Court Justices Charles E. Looking to the future, the num- cluding the provision of life-sus- the guardian to file on behalf of Freeman and the late Mary Ann G. ber of us over 65 is expected to taining measures. McMorrow. She serves in leadership the ward a petition for dissolution increase even more rapidly in the It would seem to follow, there- positions with a number of bar of marriage, a petition for legal next decade as more baby fore, that a guardian would also associations and community organizations, separation or a declaration of in- boomers reach and pass that possess the power to file a pe- is a frequent lecturer and author on a validity of marriage (755 ILCS milestone, and as new medical tition for dissolution of marriage variety of legal issues, and has been an 5 /1 1 a -17 ( a - 5 ) ) . adjunct professor at DePaul University advances continue to increase life on behalf of an incompetent ward In making this request, the College of Law and The John Marshall ex p e c t a n c y. if it was in the ward’s best in- Law School. She can be reached at guardian must establish, under a As the age of the population terests to do so. m j o c h n e r @ s d f l a w.c o m . heightened clear and convincing increases, the likelihood that more However, it was only a few evidence standard, that the filing people will experience competen- years ago that the Illinois of a dissolution petition is in the cy issues also rises. These issues Supreme Court, in its landmark with later public policy reflected best interests of the ward. are often rooted in the develop- decision in Karbin v. Karbin, 2012 in the enactment of no-fault di- In determining whether the ment of dementia, which is hall- IL 112815, overruled case law that vo rce. guardian has met the required marked by a decline in memory, had controlled for nearly three Finally, the court found that burden of proof to support the language, problem-solving and decades and which had prohibited continued application of the tra- granting of such a request, the other similar skills that affect a a guardian from filing a petition ditional rule resulted in inequity circuit court must consider the p e rs o n’s ability to perform every- for dissolution of marriage on be- to the disabled spouse: Although factors set forth in Subsection (e) day activities, such as paying bills, half of an incompetent ward, even a competent spouse could seek to of Section 11a-17. (755 ILCS 5/11a- preparing meals, bathing and where the guardian believed that dissolve the marriage at any time, 17 ( e ) ) . d re s s i n g. the filing of such petition would the incompetent spouse was pre- These factors inform the stan- One study predicts that by protect the ward from physical or vented from filing a similar ac- dard for the guardian’s decision- 2025, the number of those 65 and emotional abuse, financial ex- tion, thereby trapping that person making and include taking actions older with Alzheimer’s disease — ploitation and/or neglect by the in the marriage with no recourse that conform as closely as pos- the most severe form of dementia wa rd ’s competent spouse. and potentially endangering him sible to what the ward, if com- —is estimated to reach 7.1 mil- In changing course, the Illinois or her in cases of abuse or ne- petent, would have done under lion, which is a nearly 40 percent Supreme Court surveyed prior glect by the other spouse. the circumstances and consider- increase from the 5.2 million in ing actions that are in the ward’s this age bracket currently affect- best interests in light of the rea- ed. son for and nature of the pro- Therefore, it is not surprising As the age of the population increases, the posed action, the benefit or ne- that a correlation exists between cessity of the action, the possible likelihood that more people will experience trends showing increased popu- risks and other consequences of lation-wide cognitive decline due competency issues also rises. the proposed action and any to aging and a growing demand available alternatives and their for adult guardianships in juris- risks. dictions across the country. In sum, as adult guardianships In Illinois, when a person can decisions which revealed an in- Bringing Illinois in line with a increase as a result of cognitive no longer care for himself, the consistent interpretation of the growing number of states, Ka r b i n impairments experienced by an Probate Act provides for the ap- Probate Act regarding the scope clearly held that a guardian “m ay aging population, Ka r b i n has pointment of a guardian for a of powers possessed by a seek court permission to bring a opened the door for guardians to “person with a disability,”who is guardian. In addition, the court dissolution action on behalf of a seek permission from the circuit defined as anyone over the age of held that the policy foundation for ward where not expressly barred court to file petitions for disso- 18 “not fully able to manage his the traditional rule barring a or allowed by statute.” lution of marriage on behalf of person and or estate”because of guardian from bringing a disso- To that end, Ka r b i n established their wards where clear and con- “mental deterioration,” “p hy s i c a l lution petition on behalf of the the general procedure to be fol- vincing evidence shows that pur- i n c a p ac i ty,” “mental illness”or ward —i.e., the sanctity of mar- lowed when a guardian makes suing dissolution of the ward’s “developmental disability.”75 5 riage on both religious and moral such a request. Soon thereafter, marriage promotes the ward’s ILCS 5/11a-2. grounds —became inconsistent the General Assembly codified the we l l - b e i n g. 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