2018 IL App (1st) 171214
                                         No. 1-17-1214


                                                            FOURTH DIVISION
                                                            June 21, 2018
______________________________________________________________________________

                    IN THE APPELLATE COURT OF ILLINOIS
                           FIRST JUDICIAL DISTRICT
______________________________________________________________________________

                                                                       ) Appeal from
In re ESTATE OF INEZ RIVERA, a Disabled Adult                          ) the Circuit Court
(The Northern Trust Company, as Both Plenary Guardian of the Estate ) of Cook County
of Inez Rivera, a Disabled Adult and Trustee of the Inez Rivera Trust, )
Petitioner-Appellee; Jennifer M. Vega, as Plenary Guardian of the      ) 13-P-000438
Person of Inez Rivera, a Disabled Adult, Respondent-Appellee; and      )
Martin A. Rivera and All of His Descendants Other Than Jazlyn          ) Honorable
Rivera, Respondents-Appellants).                                       ) Caroline G. Quinn,
                                                                       ) Judge Presiding
______________________________________________________________________________

       JUSTICE McBRIDE delivered the judgment of the court, with opinion.
       Presiding Justice Burke and Justice Gordon concurred in the judgment and opinion.

                                              OPINION

¶1      Martin A. Rivera and 8 of his 11 children appeal from a trial court order authorizing an

amendment to the estate plan of his third daughter, 23-year-old Inez Yolanda Rivera, who is

permanently and profoundly disabled by birth injuries. Inez’s estate is sizeable after her receipt

of a $12 million personal injury settlement in 2003. Because of her physical and cognitive

delays, Inez has never married, has not had or adopted children, and has never had testamentary

capacity. Inez’s initial estate plan followed the rules of intestacy and benefitted both parents and

all full- and half-siblings in equal shares, but after a “best interests” hearing pursuant to Howell,

the trial court authorized the guardian of Inez’s estate, The Northern Trust Company (Northern

Trust), to amend the plan. Estate of Howell v. Howell, 2015 IL App (1st) 133247, ¶ 41, 36

N.E.3d 293 (finding estate coguardians were statutorily empowered to act in an adult ward’s best
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interests, which could include deviating from rules of intestacy in crafting an estate plan, and

remanding for an evidentiary hearing to determine the ward’s best interests). The current plan

excludes Inez’s father and eight paternal half-siblings and benefits Inez’s mother, sister, and

three maternal half-siblings. The appellants contend it was error to allow the amendment because

the Probate Act of 1975 (Probate Act) (755 ILCS 5/1-1 et seq. (West 2016)) does not authorize

amending a trust to deviate from intestacy, Howell is not on point, and, in any event, the hearing

evidence should have been subjected to the clear-and-convincing standard instead of the

preponderance standard. Howell, 2015 IL App (1st) 133247.

¶2     Appellant Martin, born on August 14, 1967, and Inez’s mother, appellee Jennifer M.

Vega, nee Garcia, born on May 3, 1978, began dating on an unspecified date when he was in his

early twenties and she was about 13 years old. We calculate the age gap between Jennifer and

Martin to be 10 years, 8 months, and 19 days. Martin had already fathered two children with two

different women. His daughter Salina Castaneda was born on September 1, 1987, and his

daughter Yolanda Rivera Frederick was born on May 8, 1991. Jennifer began living with Martin

and became pregnant by him when she was 15 years old. Their first daughter, Inez, was born on

January 1, 1995, when Jennifer was 16 years old. Inez was deprived of oxygen at birth and has

consequently suffered     from   cerebral   palsy,   autonomic    instability,   seizure   disorder,

encephalopathy, and severe developmental delays. These injuries rendered Inez legally blind and

incapable of walking, talking, sitting up on her own, or feeding herself. Inez is able to move her

hands but cannot pick up anything or get herself out of bed. While still a young child, Inez

became dependent on a gastrostomy feeding tube and a tracheostomy breathing tube. She cannot

be left unattended and requires skilled assistance 24 hours a day. Within a year of Inez’s birth,

Martin and Jennifer had a second daughter together, Jazlyn Allison Rivera, who was born



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November 27, 1995. Their third child together, Martin Peter Rivera, was stillborn on October 18,

1996. Martin and Jennifer married on March 24, 1998, when he was 30 years old and she was 19

years old, and they divorced less than 8 years later, on November 8, 2005. While Martin was

married to Jennifer, he had two children with Lisa Marie Luman. Fabian A. Luman was born on

December 20, 2002, and Alexia Rivera was born on March 19, 2004. After his divorce from

Jennifer, Martin had four more children with Lisa and another woman, Claudia Cabrales. Martin

had Gianna Rivera with Claudia on March 1, 2005, Alessandra Rivera with Lisa on December 6,

2006, Analya Rivera with Lisa on August 2, 2007, and Enaya Rivera with Claudia on December

10, 2009.

¶3     The record indicates that when Inez was a minor, Northern Trust was appointed as the

guardian of her estate in conjunction with her receipt of the personal injury settlement. The estate

is the legal owner of Inez’s home, stock, and cash. Shortly after Inez’s eighteenth birthday in

2013, Jennifer petitioned the court to adjudicate Inez as a disabled person, appoint Jennifer as the

sole guardian of Inez’s person, and appoint Northern Trust as guardian of her estate. Martin did

not oppose the petition, and it was granted.

¶4     In 2015, after Inez’s twentieth birthday, Northern Trust petitioned for authority to execute

estate planning documents and fund a revocable trust and pour-over will so that upon Inez’s

death, her remaining assets could be distributed to her heirs without incurring the costs and

delays of a probate estate. Northern Trust specified that the proposed estate plan would not affect

Inez’s access to her assets during her lifetime and that if the proposed plan were adopted, it could

be changed at any time, either by the court, or by Inez, if she were later determined to have

testamentary capacity. The estate plan, which was proposed to and approved by circuit court

Judge Carolyn Quinn on May 19, 2015, provided for Inez’s parents and siblings (both full and



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half) to be equal heirs.

¶5      At the time that Inez’s initial estate plan was being considered and approved, an appeal

was pending in Howell, 2015 IL App (1st) 133247, which questioned whether a guardianship

court could consider an estate plan deviating from intestacy for a disabled young adult who never

had testamentary capacity. Like Inez, the disabled adult in Howell had received compensation for

personal injuries. Under the rules of intestacy, most of the disabled ward’s $11 million estate

would be distributed upon his death to the father, whom it was alleged had never lived with him,

never assisted in his care, visited only occasionally, and contributed an insignificant amount

towards his support and comfort, and the father’s 10 other children, whom it was alleged had

never met the disabled ward. Howell, 2015 IL App (1st) 133247, ¶ 1. Relying on the “substituted

judgment” doctrine, his mother and Northern Trust, who were the coguardians of his estate,

argued that the disabled adult would want his assets to go to his mother, who was his full-time

caretaker, rather than also being shared under intestacy rules with his father and 10 half-siblings.

Howell, 2015 IL App (1st) 133247, ¶ 8. We reversed the trial court’s determination that the only

possible plan was to follow intestacy. Howell, 2015 IL App (1st) 133247, ¶ 41. We remanded for

an evidentiary hearing, explaining that “reading the relevant sections of the Probate Act together,

the preferred approach to estate planning is to follow the ward’s subjective wishes, to the extent

those wishes can be ascertained, but the overriding principle is to act in the ward’s objective

‘best interests.’ ” The relevant provisions of section 11a-18 of the Probate Act were subsections

(a) and the very next paragraph, (a-5), both of which concern duties of an estate guardian, and

will be set out as relevant below. 755 ILCS 5/11a-18(a), (a-5) (West 2016).

¶6      After Howell was filed on June 19, 2015, Northern Trust met with Jennifer and Martin

about the possibility of deviating from intestacy in Inez’s estate plan if the guardianship court



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determined that this was in her best interests. In December 2015, Northern Trust requested

direction from Jennifer, in her capacity as the guardian of Inez’s person, regarding Inez’s

possible wishes for her estate plan. Jennifer recommended that the sole beneficiaries of Inez’s

estate plan be five individuals: the full sister, Jazlyn, who had lived with Inez until moving out as

an adult; the three young half-sisters, Samantha, Jessica and Emma, who continued to live with

Inez; and the parent who had always been her caretaker, Jennifer.

¶7     That same month, on December 10, 2015, Martin returned to the domestic relations

division of the circuit court, where his marriage to Jennifer had been ended by a judgment order

in 2005, and filed a petition for visitation with Inez. In this 2015 petition, Martin alleged, “The

parties had an informal visitation agreement that took place at [Jennifer’s] residence but recently

she told [Martin] that she was not going to allow him any more visitation with [Inez].” Martin

further alleged that Inez’s physical condition had deteriorated to the point that she was in

extremis (in her last illness or near death), it was impracticable for her to be transported for

visitation, and that he had a right to visit his child. That same day, Jennifer advised the domestic

relations judge that Inez had been adjudicated a disabled adult and that the probate division of

the circuit court had jurisdiction over visitation questions. The domestic relations judge agreed

with Jennifer and ordered that Martin’s petition be heard in the probate division. The probate

division judge reappointed Peter Schmiedel as the guardian ad litem in this matter and entered a

briefing schedule.

¶8     Next, in early 2016, Northern Trust filed a verified petition in the probate division,

seeking judicial direction regarding further estate planning on Inez’s behalf.

¶9     Before proceeding to a best interests hearing on Northern Trust’s petition, the parties

addressed Martin’s visitation petition. Jennifer filed a section 2-619 motion to dismiss Martin’s



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visitation petition (735 ILCS 5/2-619(a)(9) (West 2014)) and first argued that the facts militated

against allowing Martin to have visitation. She contended that Martin had consistently chosen to

have only sporadic and minimal contact with Inez during her lifetime regardless of whether she

was undergoing one of her numerous and long hospitalizations, where he had the unimpeded

ability to visit, or was at home with Jennifer. For instance, when Martin visited Inez at home in

October 2015, he had not seen her in two-and-a-half years. Jennifer contended that the few visits

that did occur had been initiated by her and that Martin’s new interest in visitation was motivated

by the possibility of his disinheritance. Jennifer noted that Martin also made no effort to contact

or visit their 20-year-old daughter, Jazlyn, who was residing in her own apartment. Jennifer’s

second point was that Inez did not know Martin and was not aware of him. Jennifer also said she

was afraid of Martin because of his history of violence and abuse, which included criminal

convictions, time in the penitentiary, and beating her when she was nine months pregnant in

1996 to the point that their son was stillborn a week later, and Jennifer, Inez, and Jazlyn had to

flee to a shelter despite Inez’s medically precarious condition. These facts led Jennifer to state

that it was not in Inez’s best interests to be visited by Martin. Jennifer also contended that, as the

sole legal guardian of Inez’s person, Jennifer, not the court, had authority to make decisions

concerning visitation and that Martin had no standing to assert a right of visitation with his adult

daughter. The guardian ad litem informed the court that he made a home visit and found, as he

had during previous home visits with Inez, that she was receiving excellent care; that, during a

telephone interview, Martin admitted to infrequent visits with Inez but blamed the situation on

Jennifer; and that it was unnecessary for the court to determine why Martin’s visits were

sporadic because Martin had no standing to challenge Jennifer’s visitation decision. After oral

arguments in March 2016, the probate division judge denied Martin’s petition for visitation due



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to his lack of standing, and it was agreed that any future discussion about visitation would be

handled by counsel rather than direct communication between Jennifer and Martin. During the

hearing, the judge emphasized that the parents should not request or refuse visitation out of a

belief that they would influence the court’s ruling on the estate planning issue because the court

would be taking a comprehensive look at Inez’s entire life.

¶ 10   The parties next prepared and filed legal briefs regarding the best interests hearing that

would be conducted over two days in October 2016.

¶ 11   Jennifer was the first witness at the hearing regarding Inez’s family life. Jennifer testified

that she and Inez were residing in Orland Park, Illinois, with Jennifer’s husband, Emanuel Vega

Jr. and their three daughters, Samantha, Jessica, and Emma Vega. Inez had to spend a month in

the hospital after she was born. Jennifer and Martin’s relationship had been “off and on,” and at

the time he was still dating Karen Varella, the mother of his second child, Yolanda. Martin did

not visit Inez on his own, and went to the hospital only once or twice when Jennifer “begged”

him for a ride so she would not have to take the bus as she “often” did during that month. When

Inez was discharged, Jennifer took the baby home to her mother’s house. Martin and Jennifer

continued their “off and on” relationship and subsequently had Jazlyn and Martin Peter. Martin

Peter was stillborn because Martin “became physical,” “would always hit” Jennifer, and was

“abusive.” Martin hurt Jennifer in front of Jazlyn and Inez, and he struck Jazlyn in Inez’s

presence. Martin, however, never hurt Inez.

¶ 12   Jennifer broke off the relationship and divorced Martin when she and Jazlyn moved to

Orland Park in 2005. Jennifer was granted sole custody of Inez. Martin was not required to pay

monthly support for Inez because of her settlement; however, he has never provided any

monetary support for her or given her any Christmas or birthday cards or any gifts. Martin did



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make some of the court-ordered monthly payments towards Jazlyn’s support, but then he

stopped.

¶ 13   Inez needs care every day, 24 hours a day, which she receives primarily from a registered

nurse. She also has weekly or monthly visits from a teacher, an occupational therapist, and a

physical therapist. Jennifer takes sporadic eight-hour nursing shifts, and otherwise cares for Inez.

Inez smiles when she hears her mother’s voice and can signal when she is hungry. Jennifer has

received training that enables her to replace Inez’s “G-tube,” give medication, and change and

bathe her daughter. Regardless of the time of day or night, Inez needs to be moved into a

different position at least every two hours so that her sensitive skin does not break down. Martin

has never received any training to care for Inez, and he has never spent time alone caring for her.

Many years ago, Jennifer agreed to bring Inez to a mall for some visitation time with Martin, and

although they waited for him for two hours, Martin did not show up. The record includes an

order dated June 7, 2010, which appears to have been handwritten by Martin’s attorney,

indicating Martin would have visitation with Inez and Jazlyn every other Saturday “in the food

court of the Orland Park Mall, by Taco Bell, from 12:00 pm to 4:30 pm.” Other than the 2005

judgment order dissolving the marriage, giving Jennifer custody and Martin visitation with Inez

and Jazlyn, this 2010 order was the only order regarding visitation. Jennifer did not deny Martin

the opportunity to come visit Inez at home and she used to ask him to visit his daughter there, but

Martin chose to visit Inez only “[w]hen he feels like it,” which was less than once a year, and

only for 15 or 20 minutes at a time. However, after the meeting with Northern Trust regarding a

revision to Inez’s estate plan, Martin indicated he wanted visitation.

¶ 14   Inez has a “hospital quality” room on the ground floor of the Orland Park residence, and

the kitchen doorway and counter have been modified so that she can spend time with the family



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in the kitchen. Jennifer’s husband, who has not been included in the estate plan, spends time with

Inez every day. Inez has a “[t]rue friendship” with her little sisters Samantha, Jessica, and Emma,

and also a good relationship with her sister Jazlyn. Jazlyn went away to boarding school for two

or three years of high school and was at home again between the ages of 16 and 18, before

moving out as an adult. Since she has moved out, Jazlyn still visits Inez and calls to ask about

her. Jazlyn is now learning how to take care of Inez.

¶ 15   One of Martin’s daughters with Claudia, Anaya, has never visited Inez, and Jennifer has

never met Anaya. Martin’s daughter Gianna and Gianna’s mother, Claudia, lived with Jennifer

for a couple of months because the women “became friends, and [Jennifer] felt sorry for

[Claudia].” Other than staying in the house, Claudia did not have contact with Inez. Jennifer was

unsure if she knew Lisa’s daughters Analya or Alexia or if they had ever visited Inez. Martin

brought Lisa’s other children “sporadically,” specifically, Alessandra came to visit Inez once or

twice, and Fabian came three or four times. Their last visit had been in October 2015, a year

before the best interests hearing. Martin’s oldest child, Salina, has never met Inez. Yolanda had

last visited Inez five years ago, but started calling after Jennifer and Martin met with Northern

Trust about revising the estate plan.

¶ 16   Neither Martin nor any of these other children have attended any of Inez’s school events,

such as her graduation from middle school, and Martin has never attended the Individual

Education Planning meetings about Inez’s schooling. Martin had never taken custody of Inez to

provide care for her and never assisted with her physical or occupational therapies.

¶ 17   As Inez’s mother and the legal guardian of her person, Jennifer recommended that she

and her daughters be included in Inez’s estate plan because they have maintained relationships

with Inez, but that Martin and his children with other women should be left out because they



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never had relationships with Inez.

¶ 18   On cross-examination, Jennifer said she was uncertain about the dates, but that after Inez

came home from the hospital, Jennifer and the baby moved back and forth between her mother’s

house and either Martin’s mother’s house or an apartment. After Jennifer and Inez moved into

the house in Orland Park in 2005, Martin only visited for a couple of nights and never lived

there. Those visits stopped 9 or 10 years before the best interests hearing, and Jennifer and

Martin’s sexual relationship stopped in 2006. The divorce was granted on grounds of

irreconcilable differences, not physical cruelty, but there were “a lot” of times when Jennifer had

to protect herself from being struck by Martin, and the neighbors, not Jennifer, would call the

police. Jennifer pressed charges against Martin once, but the charges were dropped. Inez was

first assigned caregivers after she was discharged from a hospital stay when she was almost three

years old and had “a trach and G-tube.” Martin was “in and out of jail” during this time period

and did not assist with Inez’s care. Martin helped Jennifer bathe Inez once, when she was still in

the hospital after her birth, and he might have changed her diaper once. Inez is not able to make

choices. When asked whether Jazlyn and Yolanda had a friendship, Jennifer answered that

Martin and Yolanda’s mother, Karen, had an agreement that “he was supposed to watch her,” so

Jennifer babysat Yolanda when the children were little and the family did not have the house in

Orland Park. Martin, Yolanda, and his other children would sometimes come visit; Yolanda

came for a visit by herself once when Jazlyn was away at school, and her last visit was in 2011.

¶ 19   On redirect, Jennifer indicated that she was 5 feet tall and Martin was 6 feet, 2 inches or 6

feet, 3 inches tall; that she was physically afraid of him; and that after Martin was stillborn, she

had taken Jazlyn and Inez with her to a domestic violence shelter.

¶ 20   Jazlyn, who was 20 years old at the best interests hearing, testified that she grew up living



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with her mom, occasionally stayed over with her dad as a preteen or young teen, and then went

to boarding school between the ages of 15 and 17. Inez always lived with Jennifer. Jennifer took

responsibility for Inez’s care, cleaning, feeding, and doctor’s visits. Martin did “[t]he bare

minimum” to take care of Inez, he “pretty much neglected” Inez and Jazlyn, and he was

aggressive, abusive, and violent towards Jennifer. Martin hit Jennifer in front of Jazlyn. Jazlyn

could not recall if Inez was also present. “On a scale of one to 10, [Martin’s level of violence

was] like nine.” After boarding school, Jazlyn returned home for about two years. She now visits

the family at least twice a month and has a stable, loving relationship with Inez. Inez is “very

happy when she sees [Jazlyn]” and also loves her little sisters. Jazlyn confirmed that she has not

seen Martin’s other children visiting at the Orland Park house.

¶ 21   On cross-examination, Jazlyn attributed her stay at the boarding school to being a

“troubled teenager” who was depressed because she “didn’t have a stable family.” During this

phase, Jazlyn had to take prescription medication for depression and anxiety, but she no longer

needs medication. When Jazlyn visits and kisses Inez on the check, Inez smiles instantly and

moves her arms.

¶ 22   Yolanda Frederick, who was 25 at the best interests hearing, testified that the last time

she saw Inez was at Inez’s house in 2013 when Yolanda “got out of basic training.” Yolanda and

Martin have been in Inez’s life “consecutively” and “[t]here hasn’t been a time where it stopped

and started.” Yolanda went to the hospital with her father and mother (Karen Varella) when Inez

was born, and then visited Inez at home as often as she could, meaning “all the time,” every

other weekend, and after school on weeknights. Martin was still living with Jennifer even after

Yolanda graduated from high school in 2009. Martin lived in the Orland Park house with

Jennifer, Claudia, and sometimes Lisa, as well as Jazlyn, Fabian, and Inez. After high school,



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Yolanda and Martin did not visit Inez as frequently, but they did try to visit. They went to the

house at least 15 times between 2009 and 2011, but Jennifer would not grant them access

through the security gate, and she would text or call to say they could not visit. Yolanda was in

the National Guard between 2011 and 2014. She visited once in 2013, to introduce her then-

husband. Yolanda has attempted to visit since, but has not been able to.

¶ 23   On cross examination, Yolanda said she lived in Lemont with her mother during high

school, but would nevertheless “frequently” drive 15 or 20 minutes after school to visit in Orland

Park. Yolanda would drive her mother’s car, until she was 17 and her mother bought Yolanda

her own car. Even after Martin was no longer living in the Orland Park home, Yolanda would

visit. She would spend at least two weekends a month at the house, if Martin was there. Yolanda

denied knowing why she was testifying, said her grandmother told her Martin and Jennifer were

“battling over stuff for Inez,” and stated that she did not “understand the legalities of it.” Yolanda

was aware that if she testified that she had not seen Inez in five years, as was alleged in the

petition for direction from the court, Yolanda might be excluded from the estate. Yolanda denied

speaking with Martin’s attorney before the hearing and said she did not know what questions

would be posed to her.

¶ 24   Daniel Loy said he lived in the Orland Park home with Jennifer and Martin between 2005

and 2009. For a while he lived upstairs, but then moved to the basement. He never witnessed an

argument between Jennifer and Martin and never saw them strike each other. He saw Martin

visiting Inez. On cross examination, Daniel reiterated that he lived in the Orland Park house for

four years and said he received his work checks and W2 forms at that address. Daniel and Martin

were childhood friends. Daniel saw Martin change Inez’s diaper two or three times a day, change

her feeding tube “maybe once a day,” and administer medication. Daniel admitted that he could



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not see any of this from downstairs in the basement, but he was “pretty sure [Martin’s] in there

doing something, feeding her, taking care of her.”

¶ 25   Lisa Marie Lumen testified that she has four children with Martin and that he supports

those children, “always has been there,” sees the children daily, and is “a very loving father.”

Lisa met Jennifer in April 2002, when Lisa and Martin were living on Burnham in South

Chicago, and Jennifer and Jazlyn came to stay with them for three months. The women next

encountered one another in 2004, when Jennifer and Jazlyn came to pick up Martin from his

mother’s house in Hammond. They also had contact at the Orland Park residence, once in 2005,

once in 2006 when Lisa stayed over after Inez’s birthday party, and then periodically throughout

2006. Lisa observed that Daniel was living in the basement in 2006. Lisa’s children would come

with her and would visit Inez. Inez would respond by smiling and moving around. Lisa’s last

visit to the Orland Park home was in 2007 because Jennifer said that Lisa was no longer

welcome and then blocked Lisa’s phone calls. Lisa’s children, however, continued to go there

with Martin at least once or twice a year until 2010 or 2011, and then one more time in October

2015. On cross examination, Lisa acknowledged that she was not in the Orland Park home after

2007, when her children were purportedly visiting Inez, and that she had not seen Martin interact

with Inez in nine years. She had testified that Martin sees their children every day, but admitted

that when their first two children were born, Martin was married to Jennifer. Lisa was unaware

that Jennifer had remarried and had more children. Martin’s current girlfriend is Nece Flores.

¶ 26   Martin testified that when Inez was born, he and Jennifer were living with Jennifer’s

mother, Ursula Garcia. When Inez came home from the hospital, Jennifer was the caregiver but

Martin “participated at times.” Inez lived in a rehabilitation center between 1998 and 2005.

During those years, Martin would visit Inez “[m]aybe three times out of the month” by himself,



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with Lisa, or with his mother, and Jennifer was not always present for those visits. During that

time period, his relationship with Jennifer was “off and on,” and he sometimes lived with her.

Inez was released from the rehab center in 2005 to go live in the new house in Orland Park with

Martin, Jennifer, Jazlyn, and later also Daniel. Even though Jennifer and Martin divorced in

November 2005, Martin continued to live in the Orland Park home for almost the next four

years. By watching Jennifer, Martin had learned how to clean Inez’s trachea tube, add a syringe

of formula to her feeding tube, wash her, and change her clothing. Whenever Jennifer was too

tired, which was “maybe two three times every now and then,” Martin “would help her out” and

perform these procedures himself.

¶ 27    Martin lived in the Orland Park home until 2009. After that, he was “able to visit here

and there” but there were times that Jennifer would ignore his calls or texts or would respond

with “an excuse for [Martin] not to go.” There were also “at least 10 plus” times that Martin

attempted to visit between 2009 and 2010 when Jennifer would not permit him access through

the security gate.

¶ 28    In 2010, Martin petitioned the court and was granted visitation a couple of hours every

other Saturday at the Orland Park mall. Martin went once but was not given a specific meeting

point within the “pretty big” mall, so he contacted Jennifer on her cell phone, and she did not

respond. Martin did not have visitation after that because “[s]he was finding an excuse for me

not to see her anymore. She wasn’t answering any of my calls anymore.” Jennifer did not initiate

contact with Martin, and he was “assuming she was upset, and she just didn’t want me to see

her.”

¶ 29    When Martin and Jennifer lived together at 8628 South Burnham, there were some

violent episodes between them because Jennifer “gets short tempered” and “throws cups, glasses,



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you name it,” and would strike and scratch him. Jennifer was arrested once because a neighbor

called the police, and “they saw where she had threw the knife at [Martin].” There were times

when Martin would respond to Jennifer’s attacks and they would “put hands on each other.”

Jennifer’s attacks on Martin were “fighting over nonsense” and did not concern Inez’s care.

¶ 30   On cross-examination, Martin acknowledged that he could have returned to court to

enforce the 2010 visitation order, but he said, “I took it into my own hands to call her and

repeatedly called her to visit my daughter.” He also acknowledged there was an Illinois law

making it “a crime to interfere with visitation,” meaning that he could have made a police report

that Jennifer was failing to cooperate with the visitation order, but he did not make that report.

Although Jennifer was interfering with his visitation, he did not object in 2013 to her petition to

be appointed Inez’s sole legal guardian because he “didn’t know exactly what the laws were.” As

for the time Jennifer was arrested for attacking him, Martin did not know if she ever went to

court, and his lawyer never told him that Jennifer was convicted of any crime.

¶ 31   Martin acknowledged “[p]utting hands, [in] self defense” on Jennifer, that he had

“punched” her but was unsure how many times, and that he kicked her while she was on the

ground, but he was unsure how many times. Martin denied punching and kicking Jennifer when

she was pregnant with their son who was later stillborn, but he acknowledged that after “she lost

the baby, she went to a shelter for battered women.” According to Martin, he never hit Jennifer

during the pregnancy; instead, she fell down outside the house, he picked her up, and two or

three days later she said the baby was not moving. At the hospital, they said the baby had died.

¶ 32   With regard to Martin’s testimony that he lived in the Orland Park house with Jennifer

between 2005 and 2009, Martin said he was not sure whether she became engaged in 2007, he

was not sure whether she remarried in 2009, he denied living in the house with her new husband



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when she was pregnant, and he was not aware that she had a baby in 2009. Martin then said he

moved out in the beginning of 2009. Until then, his clothes, shoes, paintings, and treadmill were

there, and the treadmill was still there to this day. Martin admitted he never had the Orland Park

address on his driver’s license.

¶ 33   Martin has four felony convictions: one for drug possession in 2003, one prior to that for

unlawful use of an unregistered weapon, and two others that he could not recall, although one of

them might have been for assault or battery.

¶ 34   Martin said the reason he never took any training to care for Inez was he “was never

asked to” and it had never occurred to him to be trained, but he knew how to care for Inez and

had “helped [Jennifer] do it.”

¶ 35   Martin said he was in court because he was fighting for his other children’s right to

inherit from Inez.

¶ 36   Jennifer was called as a rebuttal witness. Jennifer disagreed with Yolanda’s testimony

that she visited the Orland Park residence frequently as a teenager. Jennifer said the visits were

“[w]ith her father sporadically.” When Yolanda was two years old, Martin would drop her off so

that Jennifer would babysit her during his visitation time. David Loy lived in the Orland Park

house only in 2005 for two months. Jennifer started dated her second husband in 2006, and

David Loy was no longer living in the basement. Jennifer was “always” at the hospital when Inez

had to live there between 1999 and 2005 and observed that Martin did not come to visit Inez.

Jennifer was there as often as twice a week and would stay from 9 a.m. to almost 8 p.m. It was

possible that Martin came later in the day. There was a sign-in log that Jennifer had to use.

Jennifer and her mother took training at the hospital to care for Inez, but the training was never

offered to Martin because “[h]e never came.”



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¶ 37   The guardian ad litem, Peter Schmiedel, testified that he had also been appointed by the

court in the fall of 2009 when Inez was a minor and the question was whether a “do not

resuscitate” order should be in place. At the time, Inez was living in the Orland Park house, and

Schmiedel visited there at least twice. Jennifer was living there, but not Martin, and his

whereabouts were actually unknown then. Schmiedel observed that Inez was receiving excellent

care, Jennifer was interacting very well with her, and there could not be a safer or more

appropriate placement for Inez. Schmiedel, who was reappointed for another issue in 2013,

observed that Inez’s health had improved, that her hospitalization time had gone down, that

Jennifer was again cooperative with his investigation, and that he had no contact with Martin.

Schmiedel was appointed for the current issue in early 2016, at which point Martin’s lawyer

provided his client’s phone number, and Schmiedel called to discuss Martin’s visitation history.

Martin said that he visited Inez only 9 or 10 times in the last 7 years. With regard to whether it

was in Inez’s best interests to deviate from intestacy, Schmiedel was of the opinion that Inez

could not express her wishes. Also, the factors the court should consider in determining a

testamentary plan were who resided with the ward, cared for her, and demonstrated a long-

standing relationship, which in this instance were Jennifer and her immediate family. The court

should also look at negative interactions, such as domestic violence, and whether family

members had contributed to Inez’s well being and day-to-day care, when the court determined

who should take from the estate and what percentage they should take. Schmiedel was of the

opinion that the evidence indicated the court should deviate from intestacy in this instance.

¶ 38   On cross-examination, Schmiedel said he made two home visits in 2009, for probably an

hour each time, and that it was possible Martin visited before or after him. At the time, however,

Jennifer told Schmiedel that she did not have Martin’s contact information. Schmiedel had a one-



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hour phone conversation with Martin regarding the current issue and came to the conclusion that

visiting 9 to 10 times in a 7 year period was “not a very consistent visitation pattern.” Schmiedel

also held the opinion that the trial court should take into consideration whether Martin and his

other children had a consistent relationship with Inez over the years.

¶ 39   During the best interests hearing, Jennifer and Martin tendered photos of themselves with

Inez at various ages. After the hearing concluded, they prepared and submitted legal briefs to

assist the court with its analysis. About two months after the hearing, Jennifer, Jennifer’s

attorney, Martin’s attorney, and the guardian ad litem returned to court on December 12, 2016, to

obtain the judge’s ruling.

¶ 40   The judge first found that the preponderance-of-the-evidence standard set out in In re

Estate of Michalak, 404 Ill. App. 3d 75, 934 N.E.2d 697 (2010), was controlling, and that the

cases Martin was relying upon for the clear-and-convincing standard either were not

guardianship cases or were guardianship-of-the-person cases. The judge also took into

consideration that the legislature had added the clear-and-convincing standard to certain sections

of the Probate Act, such as whether to sterilize a ward or terminate a ward’s marriage, but the

legislature did not include this standard in section 11a-18 of the Probate Act, which is the section

relevant to these proceedings. 755 ILCS 5/11a-18 (West 2016) (defining the duties of the

guardian of a disabled adult’s estate).

¶ 41   Applying Howell, the judge next indicated that Inez would execute an estate plan if she

was not under a disability. The evidence of Inez’s severe, permanent impairment supported the

position of the guardian of the estate, guardian of the person, and the guardian ad litem that

proceeding with an estate plan was appropriate and that Inez lacked any ability to express her

wishes about an estate plan. The natural objects of Inez’s bounty would include those who care



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for and are involved in her life, as opposed to those who are not. Jennifer and Jazlyn have a close

relationship with Inez, and the three little sisters also have an active and true friendship with

Inez. Martin, however, has played a far smaller role in Inez’s life than Jennifer’s second

husband. It was undisputed that Martin and Jennifer’s relationship as a couple had been “off and

on” and punctuated by violence. The judge did not find Martin credible when he said he acted in

self defense and when he said that Jennifer fell outside the house instead of being a victim of

domestic violence. Martin has a criminal history, and Jennifer was credible and reasonable when

she said she wanted to limit her family’s contact with Martin. The guardian ad litem and Jennifer

credibly testified that Martin’s visits were rare and that Jennifer did not block his visitation until

recently. Martin’s contention that he did not move out of the Orland Park house until 2009 and

that Jennifer stymied his attempts to visit was undermined by the fact that he did not attempt to

enforce the 2010 visitation order even though he blamed Jennifer for being nonresponsive to his

phone calls, and the fact that he did not seek visitation again until years later when Inez’s estate

plan was being discussed. David Loy was not credible when he said Martin lived in the house

between 2005 and 2009, particularly since Loy contended he saw Martin taking care of Inez but

then Loy admitted he did not see Martin performing any of the tasks. Martin’s lack of

commitment to Inez’s care was underscored by his failure to seek training as a caregiver and his

inability to identify a single witness who would confirm that he was capable of rendering

appropriate care to her. The judge also found Yolanda not credible when she testified that she

was a frequent visitor as a teenager and that she was ignorant of the purpose of the best interests

hearing. The judge also considered Lisa’s testimony that her children visited Inez infrequently

and had not seen Inez since 2007.

¶ 42   The judge concluded that the preponderance of the evidence indicated it was in Inez’s



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best interests to deviate from intestacy, to include those family members who had consistent and

loving relationships with Inez, and to exclude those family members who did not. The judge

directed Northern Trust to move forward on a new estate plan and denied Martin’s motion for

reconsideration. Martin has taken this appeal to challenge those two rulings. Illinois Supreme

Court Rule 304(b)(1) gives us jurisdiction to consider his appeal. Ill S. Ct. R. 304(b)(1) (eff. Mar.

8, 2016) (conveying jurisdiction to review a judgment or order entered in the administration of

an estate, guardianship, or similar proceeding that finally determines a right or status of a party).

Jennifer filed a response brief in her capacity as Inez’s personal guardian, the guardian ad litem

agreed with Jennifer’s arguments and rationale and adopted her brief as his own instead of filing

a separate brief, and Northern Trust subsequently filed a response brief in its capacity as the

estate guardian. We also have benefit of Martin’s reply brief.

¶ 43   Martin first argues it was reversible error to permit Northern Trust to amend Inez’s estate

plan to disinherit Martin and his other children, when there was no statutory authority to make

this change. Martin’s argument implicates section 11-18(a) of the Probate Act, the next

paragraph, section 11-18(a-5), and our opinion in Howell regarding these two portions of the

statute. Howell, 2015 IL App (1st) 133247.

¶ 44   Section 11a-18(a) provides as follows:

            “ ‘(a) To the extent specified in the order establishing the guardianship, the guardian

       of the estate shall have the care, management and investment of the estate, shall manage

       the estate frugally and shall apply the income and principal of the estate so far as

       necessary for the comfort and suitable support and education of the ward, his minor and

       adult dependent children, and persons related by blood or marriage who are dependent

       upon or entitled to support from him, or for any other purpose which the court deems to



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       be for the best interests of the ward, and the court may approve the making on behalf of

       the ward of such agreements as the court determines to be for the ward’s best interests.’ ”

       (Emphases in orginal.) Howell, 2015 IL App (1st) 133247, ¶ 18 (quoting 755 ILCS

       5/11a-18(a) (West 2000).

¶ 45   In Howell, we characterized section 11a-18(a) as setting “the ward’s ‘best interests’ as the

touchstone for all actions taken by an estate guardian.” Howell, 2015 IL App (1st) 133247, ¶ 12.

¶ 46   The next paragraph of the statute, section 11a-18(a-5), provides more detail about the

estate guardian’s duties, specifying that the estate guardian is to give notice to all other interested

parties and petition the court for approval of actions or applications of funds that are “in keeping

with the ward’s wishes so far as they can be ascertained”:

       “ ‘The probate court, upon petition of a guardian, other than the guardian of a minor, and

       after notice to all other persons interested as the court directs, may authorize the guardian

       to exercise any or all powers over the estate and business affairs of the ward that the ward

       could exercise if present and not under disability. The court may authorize the taking of

       an action or the application of funds not required for the ward’s current and future

       maintenance and support in any manner approved by the court as being in keeping with

       the ward’s wishes so far as they can be ascertained. The court must consider the

       permanence of the ward’s disabling condition and the natural objects of the ward’s

       bounty. In ascertaining and carrying out the ward’s wishes the court may consider, but

       shall not be limited to, minimization of State or federal income, estate, or inheritance

       taxes; and providing gifts to charities, relatives, and friends that would be likely

       recipients of donations from the ward. The ward’s wishes as best they can be ascertained

       shall be carried out, whether or not tax savings are involved.’ ” Howell, 2015 IL App



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       (1st) 133247, ¶ 17 (quoting 755 ILCS 5/11a-18(a-5) (West 2000)).

¶ 47   Continuing into further detail about permissible “action[s] or the applications of funds,”

section 11a-18(a-5) sets out a nonexhaustive list of examples, stating that “[a]ctions or

applications of funds may include, but shall not be limited to, the following”, including what was

the subject of the Howell litigation, “(6) creating for the benefit of the ward or others, revocable

or irrevocable trusts of his or her property that may extend beyond his or her disability or life.”

755 ILCS 5/11a-18(a-5)(6) (West 2016). Martin focuses on the last entry in the list of examples,

“(11) modifying by means of codicil or trust amendment the terms of the ward’s will or any

revocable trust created by the ward, as the court may consider advisable in light of changes in

applicable tax laws.” 755 ILCS 5/11a-18(a-5)(11) (West 2016).

¶ 48   After this list of examples, section 11a-18(a-5) concludes with further detail about the

contents of the estate guardian’s petition, identifies various individuals and charities who may

benefit from the disposition of estate funds, and specifies that the estate guardian need not make

dispositions to “any person who he has reason to believe would be excluded by the ward”:

            “The guardian in his or her petition shall briefly outline the action or application of

       funds for which he or she seeks approval, the results expected to be accomplished

       thereby, and the tax savings, if any, expected to accrue. The proposed action or

       application of funds may include gifts of the ward’s personal property or real estate, but

       transfers of real estate shall be subject to the requirements of Section 20 of this Act. Gifts

       may be for the benefit of prospective legatees, devisees, or heirs apparent of the ward or

       may be made to individuals or charities in which the ward is believed to have an interest.

       The guardian shall also indicate in the petition that any planned disposition is consistent

       with the intentions of the ward insofar as they can be ascertained, and if the ward’s



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       intentions cannot be ascertained, the ward will be presumed to favor reduction in the

       incidents of various forms of taxation and the partial distribution of his or her estate as

       provided in this subsection. The guardian shall not, however, be required to include as a

       beneficiary or fiduciary any person who he has reason to believe would be excluded by

       the ward. A guardian shall be required to investigate and pursue a ward’s eligibility for

       governmental benefits.” 755 ILCS 5/11a-18(a-5) (West 2016).

¶ 49   Reading these paragraphs together, we came to the conclusion in Howell that the

guardian of the estate of a disabled adult is obligated to propose to the court that a trust

established as part of an estate plan include as beneficiaries only those individuals whom the

guardian has reason to believe the ward would choose to include, if the ward was present and not

under disability. Howell, 2015 IL App (1st) 133247, ¶ 29.

¶ 50   Martin, however, contends the estate plan that was adopted for Inez was not authorized

by this statute. Martin points out that the estate plan that was originally adopted for his daughter

followed the rules of intestacy and that intestacy is based on the sound principle that a person’s

estate should benefit the natural objects of the person’s bounty, including those individuals who

are related to the person by blood or who have ties of affection. DeHart v. DeHart, 2013 IL

114137, ¶ 20, 986 N.E.2d 85 (defining the “natural objects of one’s bounty”). Section 11a-18 of

the Probate Act defines the duties of an estate guardian, and Martin contends subsection (a-

5)(11) contains the only statutory language that in any way implicates disinheritance when it

states that the guardian of a disabled ward’s estate may “modif[y] by means of codicil or trust

amendment the terms of the ward’s will or any revocable trust created by the ward, as the court

may consider advisable in light of changes in applicable tax laws.” (Emphasis added.) 755 ILCS

5/11a-18(a-5)(11) (West 2016). Martin reads the quoted language to mean that once a trust



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agreement has been adopted for a disabled adult ward, the plan may be modified only to reflect

changes in the tax code. He contends that Northern Trust’s petition for judicial direction in 2016

clearly acknowledged that an estate plan, based on intestacy, had been approved for Inez in 2015,

and that nothing in the 2016 petition could be construed as a concern about the tax implications

of that plan. According to Martin, Northern Trust’s petition “disingenuously” referred to the

broadly worded paragraph (a-5) rather than the only subparagraph that authorizes disinheritance,

(a-5)(11), and erroneously cited Howell for the proposition that the statute authorized the estate

guardian to “start fresh” in creating an estate plan for Inez. Howell, 2015 IL App (1st) 133247.

Martin contends that Howell “conflates the general language of paragraph (a-5) with the specific

language of [sub]paragraph (a-5)(11),” and in so many words, Martin is contending that Howell

was wrongly decided. Alternatively, Martin contends Howell should be limited to its facts, which

were the creation of a new trust, rather than the modification of an existing trust, and should be

deemed irrelevant to the current proceedings. Martin concludes that the plain and limiting

language of section 11a-18(a-5)(11) regarding disinheritance was not properly followed here and

that the order entered in excess of the court’s statutory authority must be voided. See Cushing v.

Greyhound Lines, Inc., 2012 IL App (1st) 100768, ¶ 105, 965 N.E.2d 1215 (voiding the trial

court’s appointment of a special administrator where the court had exceeded its statutory

authority).

¶ 51   “The construction of a statute, including section 11a-18(a-5)(11) of the Probate Act, is a

question of law, which this court reviews de novo.” Michalak, 404 Ill. App. 3d at 84-85. “Our

supreme court has consistently held that ‘[t]he cardinal rule of statutory construction, and the one

to which all other cannons and rules must yield, is to ascertain and give effect to the true intent

and meaning of the legislature.’ ” In re Mark W., 383 Ill. App. 3d 572, 588-89, 895 N.E.2d 925,



                                               - 24 -
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939 (2008) (quoting State Farm Mutual Automobile Insurance Co. v. Illinois Farmers Insurance

Co., 226 Ill. 2d 395, 401, 875 N.E.2d 1096, 1100 (2007)). Because the words chosen by the

legislature are the most reliable indication of the legislature’s intent, we give the statutory

language its plain and ordinary meaning. In re Mark W., 383 Ill. App. 3d at 588-89.

¶ 52   Northern Trust, Jennifer, and the guardian ad litem respond that Martin failed to make his

statutory construction argument in the trial court and, therefore, it is waived. Robinson v. Toyota

Motor Credit Corp., 201 Ill. 2d 403, 413, 775 N.E.2d 951, 958 (2002). Martin acknowledges that

the argument is a new one, but points out that all the parties fully briefed the issue and that even

if he had made the argument in the trial court, it would have been addressed de novo on appeal.

Martin urges us to consider his argument, in the interests of justice. We choose to address

Martin’s argument because doing so is simple and straightforward.

¶ 53   Martin’s argument was rejected almost eight years ago in Michalak. Michalak, 404 Ill.

App. 3d 75. The appellants in Michalak relied on the same language Martin relies on, contended

that the plain language of subsection 11a-18(a-5)(11) was intended to be a restriction on the

broad permissive language of 11a-18(a-5), and concluded that amendments to estate plans were

thereby permitted solely to take advantage of changes in the tax laws. Michalak, 404 Ill. App. 3d

75. The Michalak court merely read the language of the statute, noting that the legislature’s

“ ‘consistent and exclusive use of the term “may” throughout section 11a-18(a-5)’ ” when listing

the possible actions and applications of funds by the estate guardian and describing the role of

the trial court “indicated that the provision was permissive [and not mandatory] and that the trial

court may exercise its discretion in granting relief under it.”Michalak, 404 Ill. App. 3d at 86

(quoting In re Estate of Ahmed, 322 Ill. App. 3d 741, 746, 750 N.E.2d at 278, 281 (2001)). The

Michalak court also found that the use of the words “ ‘ “include” ’ ” and “ ‘ “including” ’ ”



                                               - 25 -
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indicated the itemized list of permissible actions or applications of funds was not meant to be

exclusive or exhaustive. Michalak, 404 Ill. App. 3d at 86 (quoting Gem Electronics of

Monmouth, Inc. v. Department of Revenue, 286 Ill. App. 3d 660, 667, 676 N.E.2d 1016, 1021

(1997)). First, section 11a-18(a-5) clearly stated: “ ‘In ascertaining and carrying out the ward’s

wishes the court may consider, but shall not be limited to, minimization of State or federal

income, estate, or inheritance taxes; and providing gifts to charities, relatives, and friends that

would be likely recipients of donations from the ward. The ward’s wishes as best they can be

ascertained shall be carried out, whether or not tax savings are involved.’ ” (Emphases in

original.) Michalak, 404 Ill. App. 3d at 85 (quoting 755 ILCS 5/11a-18(a-5) (West 2008)).

Section 11a-18(a-5)(11) is also permissive, stating:

       “Actions or applications of funds may include, but shall not be limited to, the following:

                                                   ***

               (11) modifying by means of codicil or trust amendment the terms of the ward’s

            will or any revocable trust created by the ward, as the court may consider advisable in

            light of changes in applicable tax laws.” (Emphases in original.)). Michalak, 404 Ill.

            App. 3d at 85 (quoting 755 ILCS 5/11a-18(a-5)(11) (West 2008)).

¶ 54    Thus, Martin’s contention that section (a-5)(11) should be read as a limitation on the

estate guardian’s authority was dispensed with by Michalak and is not persuasive to this court.

Martin urges us to “part company” with Michalak, but in addition to the fact that we find the

analysis sound and persuasive, the legislature has signaled that the statutory language was

properly interpreted in Michalak because the legislature has not subsequently changed the statute

to correct the interpretation. Provena Health v. Illinois Health Facilities Planning Board, 382 Ill.

App. 3d 34, 45, 886 N.E.2d 1054, 1065 (2008) (the legislature is presumed to know how courts



                                               - 26 -
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have interpreted a statute and may amend a statute if it intended a different construction).

Michalak states the settled law of Illinois.

¶ 55   For these same reasons, we reject Martin’s contention that Howell should be limited to

the initial creation of an estate plan for a disabled adult ward and deemed inapplicable to

Northern Trust’s petition to amend Inez’s estate plan to exclude her father and some of his

children. Martin’s argument is contrary to section 11a-18’s expansive and permissive description

of the duties of the estate guardian, and, in particular, it goes against the estate guardian’s

statutory duty to always act “for the ward’s best interests.” 755 ILCS 5/11a-18(a) (West 2016);

Howell, 2015 IL App (1st) 133247, ¶ 12 (section 11-18(a) “sets the ward’s ‘best interests’ as the

touchstone for all actions taken by an estate guardian”). This standard is written into the statute

without any modifying language and, therefore, is in effect regardless of whether we are

discussing an initial estate plan as we did in Howell, or an amendment to an estate plan, as we

are discussing here. Furthermore, a ward’s best interests are not fixed and it would be unsound to

conclude that a ward’s estate plan should be unmodifiable, particularly in this case where the

ward is a young adult and her best interests may change over her lifetime. We find that an estate

guardian is empowered and obligated by the Probate Act to amend a disabled ward’s estate plan

when material circumstances change and an existing plan, whether it be an original or amended

version, is no longer in the ward’s best interests due to a change in circumstances. According to

the Probate Act, an estate guardian’s duties are to manage the ward’s estate “frugally” and apply

the income and principal “so far as necessary for the comfort and suitable support and education

of the ward, *** or for any other purpose which the court deems to be for the best interests of the

ward, and the court may approve the making on behalf of the ward of such agreements as the

court determines to be for the ward’s best interests.” 755 ILCS 5/11a-18(a) (West 2016); In re



                                               - 27 -
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Guardianship of Mabry, 281 Ill. App. 3d 76, 88, 666 N.E.2d 16, 23 (1996). Furthermore, the

legislature has amended the Probate Act three times since Howell was decided, without changing

the language we analyzed in that case and which the probate court judge subsequently applied to

Northern Trust’s petition to amend Inez’s estate plan. The lack of revision to the statutory

language applied in Howell is an indication that we construed the language as the legislature

intended. Provena Health, 382 Ill. App. 3d at 45 (the legislature is presumed to know how courts

have interpreted a statute and may amend a statute if it intended a different construction).

Accordingly, we have no reason to interpret the statutory language any differently than we did in

Howell. In Howell we applied the statutory language to disabled adult ward’s initial estate plan

and we now affirmatively extend Howell’s reasoning to amendments to a disabled adult ward’s

estate plan.

¶ 56    Martin’s second main argument is that the trial court erred by enabling the estate

guardian to impermissibly cede its decision-making authority about the estate to the personal

guardian, when Northern Trust let Jennifer recommend who should benefit from Inez’s estate

plan upon her death. Martin contends Northern Trust “completely deferred to Jennifer *** to

make the estate planning decisions” and that the Act does not empower a personal guardian to

make those types of decisions. Acts of an estate guardian which exceed its statutory authority are

not to be approved or ratified by the probate court. In re Estate of Swiecicki, 106 Ill. 2d 111, 120,

477 N.E.2d 488, 491 (1985).

¶ 57    Northern Trust, Jennifer, and the guardian ad litem respond that Martin failed to make

this argument in the trial court and, therefore, it is waived. Robinson v. Toyota Motor Credit

Corp., 201 Ill. 2d 403, 413, 775 N.E.2d 951, 958 (2002). Martin concedes that the argument is a

new one, but contends that in the interests of justice, we should address it.



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¶ 58      We find the argument is waived. Waiver aside, we point out that Martin’s argument is

deeply flawed. Martin is essentially arguing that Northern Trust, a corporate trustee without any

personal contact with Inez, should have formed an estate plan without input from Inez’s mother,

the person the record indicates has the most knowledge about Inez’s family life and her contact

with other persons who might be considered as the natural objects of the bounty of her estate.

Furthermore, Northern Trust did not cede any decisions to Jennifer, and instead petitioned the

trial court for directions regarding estate planning and gave all interested parties, including

Martin, an opportunity to participate in the proceedings and comment on what would be in Inez’s

best interests. In addition, the trial court ordered the presentation of legal briefs and conducted a

two-day hearing in order to hear directly from the interested parties and their supporting

witnesses. Also, the record indicates the trial court carefully weighed and considered the

undisputed facts, testimony which was on some points conflicting, exhibits, and relevant law,

before the trial court, not Jennifer, made the decision about whether to proceed with an

amendment to the 2015 estate plan. Thus, the contention that the trial court condoned an

impropriety between the estate guardian and the personal guardian is not supported by the

record.

¶ 59      Martin’s next argument is that the trial court’s decision should be reversed because the

court employed the incorrect burden of proof at the best interests hearing. Martin criticizes

Howell because we did not announce the burden of proof to be used at the best interests hearing

that would be conducted on remand. Howell, 2015 IL App (1st) 133247, ¶ 41. It would have

been inappropriate, however, for this court of review to decide an issue that the parties had never

argued and the trial court had never addressed. Howell was a case of first impression in which

the trial court had ruled, as a matter of law, that the adult disabled ward’s estate plan must follow



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the rules of intestacy and had refused to conduct an evidentiary hearing into the ward’s best

interests. Howell, 2015 IL App (1st) 133247, ¶ 1. On appeal, we concluded that the ruling was in

error and we remanded the case with directions to proceed with the evidentiary hearing that the

co-guardians were seeking. Howell, 2015 IL App (1st) 133247, ¶ 36. On remand, those parties

would have been given their first opportunity to argue for a specific evidentiary standard. No

subsequent appeal was taken, and we do not know what standard was used in the proceeding.

¶ 60   Martin contends the trial court that considered Inez’s best interests incorrectly adopted

the evidence standard set out in Michalak. Michalak, 404 Ill. App. 3d 75. He cites Board of

Education of the City of Chicago v. State Board of Education, 113 Ill. 2d 173, 191-92, 497

N.E.2d 984, 991-92 (1986), for the proposition that courts use different evidentiary standards to

resolve different types of questions. Whether the trial court applied the correct burden of proof is

a question of law that we review de novo. Gataric v. Colak, 2016 IL App (1st) 151281, ¶ 14, 59

N.E.3d 109.

¶ 61   In Michalak, which was decided five years before Howell, we held that a petition to

amend an adult disabled ward’s trust is subject to the preponderance of the evidence standard.

Michalak, 404 Ill. App. 3d at 96. We remarked that it would be inappropriate to use the clear and

convincing standard because the petition did not concern a personal issue such as withdrawing

life-sustaining treatment or invoking extraordinary mental health measures. Michalak, 404 Ill.

App. 3d at 96. When addressing the petition regarding Inez’s estate plan, the trial court not only

considered Michalak’s analysis, but also reasoned that when the legislature believes the best

interest of the ward should be demonstrated by clear and convincing evidence, the legislature

expressly adds that standard to the Probate Act, as it did in the sections regarding whether to

terminate a ward’s marriage or whether to have a ward sterilized, but that standard was not



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incorporated into section 11a-18, which is the section relevant to these proceedings. 755 ILCS

5/11a-18 (West 2016).

¶ 62   Martin argues that Michalak is not on point because it was not dealing with the peculiar

facts of this case, in which a disabled ward’s biological parent and some of that parent’s other

children who did not have a relationship with the disabled ward were being disinherited. Martin

contends that the clear-and-convincing evidence standard should have been applied because

“there is a strong public policy interest in protecting disabled persons and the inheritance rights

of their blood relatives.” Martin also contends the ruling does not promote Inez’s relationships

with the relatives who were disinherited. He cites In re Mark W., 228 Ill. 2d 365, 374-75, 888

N.E.2d 15, 20 (2008), for the proposition that a person who has been adjudicated as disabled is

viewed as a favored person entitled to the court’s vigilant protection. He does not cite any

authority indicating it is good public policy to support inheritance expectations of a disabled

ward’s relatives. He also relies on In re Estate of Hook, 207 Ill. App. 3d 1015, 1029, 566 N.E.2d

759, 768 (1991), for the proposition that the clear and convincing standard is applied to prevent

inheritance by someone who has murdered the person from whom he or she stands to inherit.

Martin argues, “There is something fundamentally wrong with a ruling which makes it easier to

be disinherited for not visiting enough or for having extramarital affairs than it is for murder.”

¶ 63   We decline Martin’s invitation to disagree with Michalak, as that case involved similar

circumstances. Also, because this case involved the disposition of a disabled ward’s estate, not

the ward’s person, we decline to endorse an evidentiary standard that is relevant to questions

regarding the ward’s person (sterilization or dissolution of marriage).

¶ 64    Martin’s last contention is that it was an abuse of discretion for the trial court to

conclude that Martin did not have a substantial relationship with his daughter, even though it was



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her mother who impeded that relationship by not allowing him to visit. Martin contends Jennifer

had sole discretion over whom to admit to the Orland Park residence and that although he and

others wanted to visit Inez, Jennifer was the gatekeeper. Martin filed a visitation petition on

December 10, 2015, but the trial court denied the petition due to settled authority, Struck, which

indicates that a relative of a disabled adult ward has no standing to assert a right to visit the ward

and challenge the decisions of the guardian of the person to deny visitation. Struck v. Cook

County Public Guardian, 387 Ill. App. 3d 867, 876, 901 N.E.2d 946, 954 (2008). Martin argues

that Struck, which prevented him from visiting Inez, and Howell, which indicated deviating from

intestacy may be in the best interest of a disabled ward, work together as a “legal non-compete

agreement against any blood relative whom Jennifer seeks to disinherit.” Martin contends that

once Jennifer had the sole discretion to decide whether Martin could visit Inez, it was inevitable

that Jennifer would unjustly end his visits.

¶ 65   Jennifer and the guardian ad litem respond that the trial court properly considered the

evidence, and made sound credibility determinations, before concluding that Martin did not have

a loving and consistent relationship with Inez.

¶ 66   We review the trial court’s evidentiary ruling for an abuse of discretion. In re Rocker,

2017 IL App (4th) 170133, ¶¶ 38-39, 92 N.E.3d 988. A court abuses its discretion where its

decision is arbitrary, fanciful or unreasonable, or when no reasonable person would take the

same view. Rocker, 2017 IL App (4th) 170133, ¶ 39; Lisowski v. MacNeal Memorial Hospital

Ass’n, 381 Ill. App. 3d 275, 288, 885 N.E.2d 1120, 1134 (2008).

¶ 67   The record indicates that the best interests hearing and the trial court’s ruling

encompassed Inez’s entire life, not just her recent adulthood, which is when Martin petitioned for

visitation. The trial court determined that the credible evidence indicated Martin had chosen not



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to be involved in Inez’s life and to care for her, even when she was an infant in 1995, when he

had the unfettered ability to spend time with her and care for her; even when she was confined to

the rehabilitation center as a young child, where he could visit her freely; and even later, after

2005, when she was still a minor and sometimes hospitalized for long periods when she was not

living in the Orland Park residence with her mother. It was not until shortly after Inez’s 18th

birthday in 2013 that she was adjudicated a disabled adult, Jennifer was appointed as the sole

guardian of Inez’s person, Jennifer then had sole authority over visitation questions with her

adult child, and Jennifer decided that she would no longer permit Martin to visit Inez. Only then

did Struck and Howell become relevant. The record indicates that Martin showed little to no

interest in his daughter since her birth in 1995. He did not care for her and create a relationship

with her when she was a child and when he had the unfettered legal right to be a part of her life.

When Inez was older, Martin did not oppose her mother’s petition to be appointed as the sole

guardian of their adult daughter, and he did not petition for visitation until almost three years

later, in 2015. By 2015, Martin had created a 20-year track record of disinterest and lack of

concern for Inez’s health and wellbeing. Martin consistently chose not to have a close

relationship with Inez. The amendment to her estate plan did not occur because of recent case

law, and it did not occur because of Jennifer’s recent decision to deny visitation with her adult

child, which she attributed to Martin’s intention only to avoid being excluded from the estate,

rather than to a newfound interest in their eldest daughter. The amendment occurred because the

competent record showed that it was in Inez’s best interests to distribute the estate remaining

after her death only to her close and loving family members and to exclude other people whose

only claim to the assets was through the rule of intestacy. Martin has failed to present any reason

to disturb the trial court’s ruling at the conclusion of the best interests hearing and we affirm that



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ruling.

¶ 68      Affirmed.




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