A Guardian’s Standing to Request Authorization to File a Petition for Dissolution on Behalf of a Ward is Codified by the Illinois General Assembly

In March of last year, I authored a blog post, The Illinois Supreme Court Allows Guardians to File iStock_000019732519SmallPetitions for Dissolution of Marriage on Behalf of Wards in Karbin v. Karbin, which commented on the then-recent landmark decision handed down by the Illinois Supreme Court in Karbin v. Karbin, 2012 IL 112815.  In Karbin, our State’s highest tribunal overruled case law which had controlled for nearly three decades and which prohibited a guardian from filing a petition for dissolution of marriage on behalf of an incompetent ward.  That rule applied even where the guardian believed that the filing of a dissolution petition was in the ward’s best interests to protect him or her from physical or emotional abuse, financial exploitation and/or neglect by the ward’s competent spouse.

In reversing course, the Illinois Supreme Court surveyed cases which it admitted revealed its own inconsistent interpretation of the Probate Act regarding the scope of powers possessed by a guardian. Id., ¶ 29. For example, although a guardian had no standing to file a dissolution petition on the ward’s behalf, the guardian was nevertheless authorized to act on behalf of the ward with respect to a number of other deeply personal decisions, including whether life-sustaining measures should be discontinued.  Bringing Illinois in line with a growing number of states, Karbin held that a guardian “may seek court permission to bring a dissolution action on behalf of a ward where not expressly barred or allowed by statute.” Id., ¶ 51.

In Karbin, the Supreme Court established the general procedure to be followed when a guardian makes such a request. The circuit court was directed to hold a hearing to determine whether it is in the ward’s best interests to seek the dissolution of his or her marriage, using the factors enumerated in §11a-17(e) of the Probate Act (755 ILCS 5/11a-17(e). Id., ¶ 52.  The Supreme Court also directed that in order to safeguard the interests of all parties, the guardian must satisfy a heightened clear and convincing standard of proof to establish that the dissolution is in the best interests of the ward. Id., ¶ 53.

In response to the Karbin decision, the Illinois General Assembly has recently amended §11a-17 of the Probate Act (755 ILCS 5/11a-17).  Public Act 98-1107, effective August 26, 2014, codifies the Karbin ruling and clarifies the procedures and standards to be employed by the circuit court where a guardian requests that the court allow the filing of a petition for dissolution on behalf of a ward.

Specifically, the legislature has amended §11a-17(a-5) to codify the standing of a guardian to request the circuit court to authorize and direct the guardian to file on behalf of the ward a petition for dissolution of marriage, a petition for legal separation or a declaration of invalidity of marriage (755 ILCS 5/11a-17(a-5)). This section now also provides that a court may authorize such a filing upon finding by clear and convincing evidence that the relief sought is in the best interests of the ward, applying the factors set forth in subsection (e) of §11a-17. (755 ILCS 5/11a-17(a-5); 755 ILCS 5/11a-17(e)).

As a result of this statutory amendment, the Probate Act now mirrors the controlling case law, allowing a guardian to seek permission from the circuit court to file a petition for dissolution of marriage on behalf of his or her ward where clear and convincing evidence shows that pursuing dissolution of the ward’s marriage is in the ward’s best interests.

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Michele M. Jochner

About Michele M. Jochner

Effective appellate advocacy requires specialized skills to analyze the pertinent legal issues and see the case the way appellate justices do, ensuring that the law and applicable procedure were followed in the trial court. An effective appellate lawyer must be well-versed in pertinent case law and applicable procedural rules, with the ability to identify those issues and arguments which are likely to be most successful.

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